
    [Filed March 16, 1887.]
    
       C. W. SANFORD, Respondent, v. H. W. SANFORD, Appellant.
    'Public I,ands — Patent—Collateral and Direct Attack. — In an action of ejectment, a patent for land granted by the United States cannot be collaterally attacked; but it may be attacked by a direct proceeding in equity, based on mistake of the law in its issuance or fraud and imposition in its procurement.
    Same — Fraud—1Trusts—Injunction.—Under this rule, where it appeared that after A and B had filed upon separate adjoining tracts of land, A, without the knowledge of B, had his entry amended so as to coyer both tracts, notwithstanding B was and had been rightfully in possession of the tract entered by him, and by such means A fraudulently obtained a patent for B’s tract; held, that A would be considered a trustee of the legal title for B as to such tract, and that an action of ejectment to recover such tract brought by A against B would be enjoined.
    Appeal from the circuit court for Coos county.
    
      A. M. Crawford and J. F. Watson, for Appellant.
    
      S. E. Hazard, for Respondent.
   Lord, C. J.,

delivered the opinion of the court.

This is a suit begun by cross-bill to enjoin an action of ejectment brought by defendant, and to have-him declared a trustee of the legal title of certain lands described therein. The defendant is the bolder of a patent of the United States to said lands under tbe preemption laws; and tbe object of tbe present suit is to charge bim as trustee of said property, and to compel a conveyance to tbe plaintiff. It may be admitted tbat. tbe facts are not stated in tbe complaint with mucb conciseness or precision; but we think tbey are sufficient as alleged, if proved, to entitle tbe plaintiff to tbe relief for wbicb be prays. There can be no doubt but tbat it is tbe duty of tbe officers of tbe land department to determine upon tbe facts to whom patents shall be issued for tbe public lands. Tbe law has intrusted them with tbe performance of this duty, and, when done, all reasonable presumption must be indulged in support of their action. As to all matters of fact within tbe scope of their authority, their findings must be taken as conclusive in the absence of fraud and imposition. This doctrine has been expressly affirmed by tbe highest judicial tribunal of tbe country. Johnson v. Tewsley, 13 Wal. 72; Moore v. Robbins, 96 U. S. 530; Smelting Co. v. Kemp, 104 U. S. 636.

Hence a patent cannot be collaterally attacked but only by a direct proceeding in equity, based on mistake of tbe law in its issuance or fraud and imposition in its procurement. “If tbe officers of the.law,” said Mr. Justice Field, “mistake tbe law applicable to tbe facts or misconstrue tbe statutes and issue a patent to one not entitled to it, the party wronged can resort to a court of equity to correct tbe mistake and compel tbe transfer of tbe legal title to bim as tbe true owner. Tbe court in such case merely directs tbat to be done wbicb these officers would have done if no error of law bad been committed. Tbe court does not interfere with tbe title of a patentee when the alleged mistake relates to a matter of fact, concerning wbicb these officers may have drawn wrong conclusions. A judicial inquiry as to tbe correctness of such conclusion would encroach upon a jurisdiction wbicb congress has devolved exclusively upon the department. It is only when fraud and imposition have prevented tbe unsuccessful party in a contest from fully presenting bis case or tbe officers from fully construing it, tbat a court will look into the evidence. It is not enough, however, that fraud and imposition have been practiced upon the department, or that false testimony or fraudulent documents have been presented. It must appear that they affected its determination, which otherwise would have been in favor of the plaintiff. He must in all cases show that but for the error or fraud or imposition of which he complains he would have been entitled to the patent. It is not enough to show that it should not have been issued to the patentee. It is for the party whose rights are alleged to have been disregarded that relief is sought, not for government, which can file its own bills when it desires the cancellation of a patent unadvisedly or wrongly issued.” Bohall v. Dilla, 114 U. S. 47, 5 Sup. Ct. Rep. 782; Sparks v. Pierce, 115 U. S. 408, 6 Sup. Ct. Rep. 102.

The application of these principles to the facts in har^ are decisive of this case. At the outset it may be said it is clear from the evidence that the defendant has not at any time resided upon or cultivated or improved the land in dispute, or any part thereof. But this of itself is not enough to serve the purpose of the plaintiff. It only shows that the defendant is not entitled to a patent. The law requires the plaintiff to go further and show such a compliance with the law that, but fpr fraud or imposition of the plaintiff, he would be entitled to and awarded the patent for these lands. In 1871, the defendant, who is a brother of the plaintiff, had settled upon a certain parcel of unsurveyed public lands as a preemption claim. Adjoin ing his claim there were other such public lands. With a view to secure it for his brother, who then resided in California, he put in possession of it a friend to temporarily hold it until he could notify his brother and ascertain whether he desired to make a settlement upon it as a preemption claim. Under this state of facts he wrote to the plaintiff and requested him to come to Oregon and settle upon the adjoining claim. In response to that invitation the plaintiff came for the purpose of settlement upon the land, and the defendant pointed it out to him and helped him to build his cabin upon it in furtherance of his settlement. They thus resided upon adjoining claims for several years, the defendant all the while recognizing the settlement of the plaintiff, who, in the meantime, had made improvements, all of which were located on the forty acres now in dispute.

In 1879 the lands settled upon by these parties were surveyed and the plat thereof filed in the land office at Rose-burg, when it became known that the tract of land in dispute belonged to that portion of the land settled upon by plaintiff under the circumstances indicated. On September 9th and 27th, respectively, of that year the plaintiff and defendant filed their declaratory statements to the parcels of land upon which they had settled. More than a year afterwards the defendant amended his declaratory statements so as to include the tract in dispute and upon which the plaintiff had resided for quite a number of years, and had built his house and barn and out-houses, set out an orchard, and made other improvements. The evidence shows and the court below finds that this was procured upon the ex parte affidavits of the defendant and twro witnesses, and without any notice to the plaintiff of the proceeding. It is beyond dispute at this time and when these affidavits were made that the plaintiff was then and had been during the time before mentioned residing upon and improving the identical lands included in this amended statement. By this means the defendant was enabled to procure the patent in fraud of the rights of the plaintiff. And it is clear from the evidence but for such fraud and imposition he would not only have been entitled to but have been awarded the patent.

We have not undertaken to refer to all of the facts in detail. We are satisfied that the decree must be affirmed.  