
    * William Y. Strong v. Henry Lehmer.
    1. The fifth and sixth sections of the act of Congress of May 24, 1828, granting lands to the State of Ohio for the construction of canals, operated as a present grant, requiring only the identity of the lands to be ascertained to become perfect, while a purchaser from the United States, and holding its patent, of lands in fact selected under the sixth section, but not in the precise mode or after the prescribed requisites stated in that section had been complied with, who had no notice of the fact of such selection, might claim to be preferred to a grantee from the state, yet a purchaser who enters the land, and takes a patent, with full knowledge of a selection in fact, a grant by the state, and a possession and improvement under it, can not, in equity, hold the land against such grantee.
    2. The patent from the United States does not preclude.an inquiry into equitar ble claims held by third persons prior to the patent; and the imperfect, execution of the power to grant the lands vested in the state by the act of Congress, might create in the grantee of the state, an interest or claim which a court would protect, or legislation might properly confirm; and a party knowingly and intentionally seeking to defeat, by an entry and patent, such interest or claim, can not be regarded as holding a vested right.
    3. The grant of the state, and the confirmation of the selection by act of Congress, were sufficient to raise a presumption that the selection was, in fact, such as might give an equitable claim to the grantee from the state.
    Reserved in the district court of Darke county.
    The plaintiff, on the 28th February, 1855, filed his petition, in the court of common pleas of Darke county, to recover possession from the defendant of a tract of land described in the petition. The petition states the title of the plaintiff to be a-patent from the-United States, dated July 12,1845, the same being recorded in the-recorder’s office of the county on the 30th December, 1854.
    The defendant, in answer to the petition, admits that he is in possession of the land, and states that previous to the second day of May, 1836, the parcel of land was purchased from the State of Ohio by one Gilbert Yail, as selected canal land, and by deed of that date conveyed by the state to Yail, and afterward by Yail to the defendant. The defendant further states, that in September, 1837, he *took possession, has continued in possession, and has made valuable improvements; all which facts of entry as canal land by said Yail, purchase, and occupancy by defendant, were well known to plaintiff before he entered and purchased the land from the United States, he, the plaintiff, being at the time he made-the purchase, receiver of the land-office. The answer of the defendant is made a counter-claim, and there is a prayer that his title may be quieted.
    To the answer of the defendant, the plaintiff replies, alleging that, the State of Ohio had no right or title which she could convey to Yail, but the land was bought by the plaintiff from the United States prior to the conveyance to any other person or party, and denying that when the plaintiff bought the land of the United-States, he then knew “that the same was claimed by Gilbert Yail, or the defendant, or any one else.”
    The parties, upon an appeal to the district court, agreed that the case should be heard and determined by the court upon the following statement of facts:
    “1. That the parcel of land in question was purchased by one' Gilbert Yail, as selected canal land, prior to May 2, 1836, and conveyed to him as such by the governor of Ohio, by deed of that date, marked No. 1; that Yail conveyed to defendant by deed, February 22, 1843; that Lehmer had made the purchase some years before-the date of said deed (No. 2), occupied it, and made improvements-thereon.
    “ 2. That the said Strong entered said parcel of land, as Congress-land, January 27, 1845, and he has a patent therefor issued to him, July 12, 1845. (No. 3.)
    “3. It is admitted, that exhibit No. 4 is a correct transcript from' the tract-books of the United States.
    “4. It is admitted by the plaintiff, that at the time he made the said entry, he was receiver of the land-office at Chillicothe, where he made said entry.
    
      “ 5. That prior to the entry made by plaintiff, John *McFarland of Darke county, having the lotter from the register, No. 5, dated December 25,1844, called at the office of plaintiff as receiver, to make an entry, and did enter one of the tracts described in said letter; that in conversation with said Strong, McFarland told ’Strong that the parcel of land now in controversy had been sold as selected canal lands, and was occupied by one of his neighbors, and had been improved by him; and that thereupon the said Strong took said letter, applied to the register, and finding no cvi- • dence of its having been selected as canal land, entered it for himself as aforesaid.”
    The tract book referred to, shows that the parcel was vacant .■and apparently subject to entry.
    The letter referred to as in the possession of the register of the land-office, contained a list of lots of land appearing upon the books of the office as vacant, among which was the tract in controversy.
    The deed from the state to Gilbert Tail refers to the tract of land as granted by an act of Congress, entitled “ an act to aid the State ■of Ohio in extending the Miami Canal,” etc., copying the title of the act of May 24, 1828. The act of April 2, 1830, is supplementary to the act of 1824. The deed also refers to the act of the state authorizing the sale of the canal lands. On the 2d March, 1855, an act was passed by Congress confirming the selections made by the state under the act of May 24, 1828. The general assembly o^ Ohio, on the 11th April, 1856, passed an act, referring to the act ■of Congress, and confirming the sales.
    The case, as submitted upon the pleadings and the agreed statement of facts, was reserved for decision in this court, upon the •questions of law arising thereon.
    
      JV. F. Wilbur, for plaintiff.
    
      Beers & Wilson, for defendant.
   *Gholson, J.

This case presents a conflict between two titles, both purporting to emanate from the government. The plaintiff claims under a patent from the United States. The defendant claims under a deed from the State of Ohio, which has been confirmed, first by an act of Congress, and afterward by an act. of the legislature of the state. Either title being out of the way, the other would be regarded as good and sufficient.

"Without taking into view the question of priority in point of time, which would involve the consideration whether the confirmation is to be regarded as the beginning of the title of the defendant, or whether it may be regarded as relating back to the deed, and rendering it operative and effective as a legal conveyance from-its date, it will be assumed that the plaintiff holds the elder title, and the-inquiry be made, whether it can be questioned.

The principles upon this subject appear to be well settled. The-rule in a court of law is, that while a patent possesses the highest, verity and can not be contradicted or explained by parol, yet if it has been fraudulently obtained, or issued against the law, it maybe avoided. “It would be a most dangerous principle to hold, that a patent should carry the legal title, though obtained fraudulently or against law.” Stoddard v. Chambers, 2 How. 281-318. The fraud here intended, is such as that of which a court of law can properly take cognizance, and may not reach the classes of constructive fraud properly cognizable in a court of equity. But it is equally clear that a patent furnishes no protection from an inquiry into such frauds in the proper tribunal.

In view of such an inquiry it has been said : “ The laws for the sale of public lands provide many guards to secure the regularity of grants, to protect the incipient rights of individuals, and also to protect the state from imposition. Officers are appointed to superintend the business; and rules are framed prescribing their duties. These rules are, in general, directory; and when all the proceedings are ^completed by a patent issued by the authority of the state, a compliance with these rules is presupposed. That, every prerequisite has been performed, is an inference properly deducible, and which every man has a right to draw from the-existence of the grant itself. It would, therefore, be extremely unreasonable to avoid a grant, in any event, for irregularities in the conduct of those who are appointed by the government to-supervise the progressive course of a title from its commencement to its consummation in a patent. But there are some things so-essential to the validity of the contract, that "the great principle of justice and of law would be violated, did there not exist some tribunal to which an injured party might appeal, and in which the-means by which an elder title was acquired might be examined. In general, a court of equity appears to bo a tribunal better adapted to this object than a court of law.” Polk’s Lessee v. Wendel, 9 Cranch, 87; Patterson v. Winn, 11 Wheat. 380.

It is not sufficient to escape the application of these principles that the plaintiff should show that the deed of the state convejmd no legal title. Ho must show that neither the state nor its grantee had any right to the land which persons dealing.with the United States were bound to respect. If the plaintiff knowingly and intentionally, as the facts show, disregarded the position of the defendant .in respect of the property, his course can be sustained only upon the ground that such position would give no claim for relief, ■either by suit in case of individuals, or by an appeal to legislative justice. For if individual owners were placed in the position of ■the two governments, and under analogous circumstances, a claimant under them would be entitled to relief from one acquiring the title, as it was acquired by the plaintiff, then those governments might very properly do voluntarily what individuals might be compelled to do, and the plaintiff would have no just ground of -complaint.

*A right which is imperfect from a failure to comply with some requisition as to form, is certainly capable of confirmation by legislation. And such has been the practice of Congress. Lessee of Pollard’s Heirs v. Kibbe, 14 Peters, 353, 365; 7 Mo. 7.

There is a well-known distinction between a defect of power and the defective execution of power. As to the former, there can be no relief; as to the latter, generally, there can. Of the different -grants of lands to the state, taking that most favorable to the view of the plaintiff, the one contained in the 5th section of the act of May 24, 1828, contains clear words of immediate grant. The words are: That there be and are hereby granted to the State of Ohio, five hundred thousand acres of lands owned by the United States, within said state, to be selected as hereinafter directed,” etc. That these words constitute a present grant and only require an identification of the lands granted, is clear, both upon reason and. authority. Lessieur v. Price, 12 How. 59-76.

It is a rule of construction that “ an interest, estate, or benefit given, conveyed, or bestowed, in one part of any written instrument, by terms entirely clear and unambiguous, and as to which, -if standing alone, there could be no doubt whatever, can not be defeated by a construction given to any other part of the same instrument, unless the terms found in such other part are equally decisive and clear. Thornhill v. Hall, 2 Cl. & Fin. 22-36.

Having this rule in view, is there anything in the 6th section of the same act which shows that the steps to be taken in the selection of the lands are not directory, but are precedent to the grant, and that there is really no grant upon which any right can be founded until those steps shall have been taken ? By the latter part of the 6th section, it is provided that the lands selected shall, “ by the governor of said state, be reported to the office of the register of the district in which the land lies, and no land shall be deemed to fee so selected till such report be made, *and the lands so seleeted shall be granted by the United States to the State of Ohio.” The object in view in the first part of this proviso, was, obviously, the giving information to the proper officer, so that the selections might not interfere with any other disposition of the public lands. And if the report were delayed, and other rights were acquired in good faith, without notice, a strong ground might be presented to prefer those rights. As to the other part of the proviso, it may be very fairly construed, so as to give their proper effect to the former words of'present grant, as if it read, “the lands so selected shall be those granted by the United States to the State of Ohio.” In no view of the grammatical construction of the sentence can the furnishing evidence of the grant be construed into a condition precedent to the taking a right or interest in the lands. In the last clause there are no words of condition. If the selection has been made, the grant either becomes perfect, of there is a perfect right to a grant. The whole stress of the argument must therefore be thrown, in view of the point under consideration, upon the necessity of a selection as a condition precedent to the grant. And this construction, as has been shown, the strong words of present grant will not permit.

In truth, the argument to show the necessity of a location in the mode prescribed as to the entering of lands by individuals, which is made in view of the grant of lands by the act of April 2,1830, is equally cogent with that as to the necessity of a selection in' the precise mode indicated in section 6 of the act of 1828. Neither can be regarded as essential to the right, but only as directory. Precisely the same objection was taken in the case of Lessieur v. Price, 12 How. 59-76, as to a grant to the State of Missouri. It was-there claimed “that the location was void because there never was any communication made by any person, for the State of Missouri, to any officer of the United States having power to grant an application for, or allow any location of said lands; and that *such location should have been entered and recorded in the register’s office of the local land district.” But this proposition was not sustained. It was said to be a present grant, wanting only identity to make it perfect, and that the legislature was vested with full power to select and locate the land, and the particular mode adopted in that case was held sufficient.

It may be said that in this case there is nothing to show what mode of selection was adopted. But, we think, if there was power in the state to make the grant, which we have endeavored to show, we are bound to presume, from the grant itself, and especially in view of its confirmation by both of the governments interested, that a proper and sufficient mode was adopted. That the prerequisites to the grant will be presumed, has already been shown by the remarks quoted from the case of Polk’s Lessee v. Wendel, 9 Cranch, 87. The same principle is more fully stated in another case. United States v. Arredondo, 6 Pet. 691, 727, 728. The deed or grant of the state, then, as said in that case, becomes evidence of the facts it recites and declares, leading to and showing the foundation of grant, and of all other facts legally inferable from what, is so apparent on its face.

To the effect of this presumption and the right which it necessarily shows in the defendant, the plaintiff does not stand in a position to offer any objection. If the defendant, in justice and right, has a claim to the land, the removal of any formal impediments-to its assertion can not be said to infringe any vested right of the plaintiff. If an interest or claim exist which it would be proper either for a court to protect, or for legislative power to confirm, no effort, knowingly and intentionally, to defeat that interest or claim, to the manifest injury of its possessor, can shelter itself under any form that will make it a vested right. There can be, it has been strongly observed, in view of such cases, no vested right to do wrong. Foster v. The Essex Bank, 16 Mass. 245.

*There must be a judgment in this case for the defendant, quieting his title to the land.

Brinkerhoff, C. J., and Scott, Sutliff and Peck, JJ., concurred.  