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married women, and persons non compos mentis in private land claims before it, by appointing a guardian ad litem and counsel. Indians have the same rights as other citizens in these grants." 464. Locality of proceeding.- The petition is to be presented to the court at a regular session in the State or Territory where the land is situated.' Cases arising in States or Territories where the court does not hold regular sessions may be instituted at the place designated by the rules of the court.? The rule provides that actions for land" in Wyoming, Nevada, Arizona, or Utah, may at the election of the plaintiff be brought and presented at either of the places where the regular terms are held." These two places are Denver, Colorado, and Santa

Fe, New Mexico.

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§ 465. Pleading and practice.- Proceedings are instituted in this court by filing a petition in writing with the clerk of the court. The proceedings and practice are in general the same, whether the grant was complete or incomplete at the date of the acquisition by the United States of the territory within which the grant lies; or whether a petition is brought by a claimant to enforce his rights, or by the United States to determine any claim where the claimant has not voluntarily come into court; or the claim is presented for a town or village lot by the authorities of such town, or by a private person, the grantee of such land, in behalf of the holders of such town or village lots. Actions in this court "shall be entitled in the name of such claimant or claimants as plaintiff against the United States, and such other person or persons as may be designated as holding or claiming adversely to the claimant as defendant." This title is to be preserved in all proceedings relating to the cause. In all actions brought by instruction of the Department of Justice, the United States shall be designated as plaintiff, and the adverse party as the defendant, and this shall be the title in all proceedings relating to the cause.

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The petition must set forth, (1) the nature of the claim to the lands; (2) the date and form of the grant, concession, or order of survey upon which the petitioner relies; 10 (3) by whom it was made; (4) the names of any persons in adverse possession of any of the land, or of claimants adverse to the petitioner; (5) the quantity of land claimed, its location and boundaries, together with as accurate a map of the land as can be furnished; (6) whether the claim or grant has been acted upon by Congress or any authorities of the United States charged with the adjustment of such land titles, or submitted to such authority; and if so, whether reported on unfavorably, or recommended for confirmation, or authorized to be surveyed or not; (7) and finally, the petition must pray that the validity of the claim must be investigated and decided by this court." "Whenever any petitioner shall claim any rights by reason of an inheritance by a descent or by testamentary disposition, he shall set forth in his petition the name and citizenship of all deceased persons through whom it is claimed such right is derived, and the names of the heirs of such deceased persons, and shall set forth the law of the place affecting such right of inheritance." 12

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When the petition is filed, the original documents creating the grant and all intermediate original documents evidencing the title by which the petitioner claims, if in his possession, and a copy of any last will of a deceased person with copies of any probate records thereof, if the petitioner depends upon such will, must be delivered to the clerk of the court or his deputy. The clerk or his deputy is required to receipt for all such original documents which remain in his possession until the final determination of the case. If such original documents cannot be so delivered, the petitioner must explain whether they are beyond his control, or lost or destroyed, setting forth fully all the facts.15 When the petition is filed, copies of it must be furnished the clerk for each person to be served, 16 and must, with citations to any adverse possessors or claimants, be immediately served upon such possessors or claim

9 U. S. v. Grimes, 2 Black, 610; Beard v. Federy, 3 Wall. 478; Pinkerton v. Ledoux, 129 U. S. 346.

10 But see Beard v. Federy, 3 Wall. 478; U. S. v. De Morant, 123 U. S. 335. 11 26 St. at L. 854, § 6.

12 Rule 2.

13 Rule 2.

14 Rule 2.

15 Rule 2.
16 Rule 2.

ants, and also upon the attorney for the United States, in the ordinary legal manner in the proper State or Territory." At the time of filing this petition, all parties except the United States must deposit a sufficient sum with the clerk to pay the fees of the marshal for serving the copies of the petition and citations.18 Within thirty days after service of the petition, the attorney for the United States, and also any adverse possessor, or claimant, must enter an appearance and plead, answer, or demur to the petition.19 But the court or any judge thereof may upon a proper showing grant further time for answering, etc.20 In default of plea, answer, or demurrer, after due notice, "the court shall proceed to hear the cause on the petition and proofs, and render a final decree" upon full legal proof and hearing, but every petition must be sustained by satisfactory proof, whether an answer or plea is filed or not.21 When an answer, plea, or demurrer is made, testimony and proofs are taken as in other cases, and a decree is entered in accordance therewith." Pleadings may be filed until the third day of the term at which the cause is returnable.23 "All proceedings subsequent to the filing of said petition shall be conducted as near as may be according to the practice of the courts of equity of the United States," " except, 1st, the attorney for the United States is not required to verify his answer, or applications or motions,25 and, 2d, all testimony, as far as is practicable, must be taken in this court or before one of its judges.26

Rules of Practice have been adopted by virtue of the power granted "to adopt all necessary rules and regulations for the transaction of its business."" The court also has power to issue any necessary process, and to issue commissions to take depositions, as provided in the Revised Statutes. The judges of this court can administer oaths and affirmations in all cases arising under this act,29 may grant orders for taking testimony in vacation," may hear and dispose of all interlocutory mo

17 26 St. at L. 854, ch. 539, § 6. 18 Rule 8.

19 26 St. at L. 854, § 6.

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24 26 St. at L. 854, § 7.

25 26 St. at L. 854, § 7, Rule 7.
26 26 St. at L. 854, § 7, Rule 7.
27 26 St. at L. 854, § 1.
28 R. S., § 863 et seq.
29 26 St. at L. 854, § 1.

20 26 St. at L. 854, § 6.

21 26 St. at L. 854, § 6.

22 26 St. at L. 854, § 6.

23 Rule 3.

30 26 St. at L 854, § 12.

tions; and in general the court has the powers of a United States Circuit Court in preserving order, in compelling the production of books and papers or the attendance of witnesses, and in punishing contempts." To determine the value of lands disposed of by the United States and to which a claimant is decided by the court to have been entitled, the court may order a survey to be made, or take proof as to the value of the land, either itself or by a commissioner appointed by the court. All

31 26 St. at L. 854, § 12. 32 26 St. at L. 854, § 12.

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the law of ejectment under the old system of pleading." Greer et al. v.

33 26 St. at L. 854, § 14; 27 St. at L. Mezes, 24 How. 268. 470; 26 St. at L. 854, § 10.

The following decisions under former acts may be of value here: A case might be reopened for newlydiscovered evidence. U. S. v. Rocha, 9 Wall. 639. Where countries have been acquired by the United States, its courts take judicial notice of the laws which prevail there up to the time of such acquisition. Such laws are not foreign, but those of an antecedent government. U. S. v. Perot, 98 U. S. 428. Pending proceedings by a claimant under a Mexican grant to obtain a United States patent, if the claimant dies, the patent should issue to the widow and heirs to hold in trust for the estate. Burton v. Burton, 79 Cal. 490. A grant must first be shown to be valid before the conditions annexed to it or its boundaries can be judicially inquired into. U. S. v. Castro, 24 How. 346. Petitions filed both by the original grant ees and assignees for the same land should be consolidated. U. S. v. Grimes, 2 Black. 610. Distinct parcels of land may be united in the same claim. Beard v. Federy, 3 Wall. 478. "Where the defendants pleaded severally the general issue, it was proper for the court below to instruct the jury to bring in a general verdict against all those who had not shown that they were in possession of separate parcels. The mode of proceeding by petition does not alter

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"When a description contained in a petition and grant differs from that contained in the act of juridical possession, the former must prevail, as the latter is based upon them." Pinkerton v. Ledoux, 129 U. S. 346. "Reference to original title papers, where no doubt arises upon the terms of the decree, will not authorize an inquiry into a matter of boundary." U. S. v. Halleck, 1 Wall. 439. Obscurity in a grant may be explained by an official survey referred to in the grant. U. S. v. McMasters, 4 Wall. 680. A grant issued and then recalled on the application of the grantee, for the purpose of correcting the quantity of land granted, is in legal effect re-executed by such redelivery. Malarin v. U. S., 1 Wall. 282, 289. "The Supreme Court will decline to instruct an inferior court relative to the location and survey of a grant, when these questions were not decided by the lower court, as it is presumed to act in accordance with established rules." U. S. v. Heirs of Berreyesa, 23 How. 499. In ejectment proceedings, an unconfirmed grant cannot prevail against a confirmed one. Singleton v. Touchard, 1 Black, 342. "A third party cannot in ejectment proceedings raise the question of fraud in a grant from the sovereign or proper legislative authority.” Field v. Seabury, 19 How. 323. "A bill in equity lies

other surveys provided for in this act are made by the officers of the General Land Office, over which surveys this court has only a revisionary power.

§ 466. Evidence.-Public Records. Upon the application of any party in interest, or of the attorney of the United States, the Commissioner of the General Land Office, the Surveyor-General, or the keepers of any public records are required to transmit to this court any records and papers which they may have in their possession relating to the land grants or claims of which the court has jurisdiction. Such officers

may also be required by the court to attend in person or by deputy any session of the court, and produce such records and papers as above required. "Testimony which has heretofore been lawfully and regularly received by the Surveyor-General of the proper Territory or State, or by the Commissioner of

to set aside letters-patent obtained by fraud, but only between the sovereignty making the grant and the grantees. Such patent or grant cannot be collaterally avoided at law for fraud." Field v. Seabury, 19 How. 323. Unless the fraudulent character of a grant is in issue in a lower court, it cannot be raised in the Supreme Court. U. S. v. Larkin, 18 How. 557. The Supreme Court will not interfere with a decision of the lower court for the reason that the evidence as to the boundaries of the grant is ir reconcilable. Alviso v. U. S., 8 Wall.

337.

Proceedings by inferior tribunals cannot be collaterally assailed, when they have jurisdiction, for mere error or irregularity. Beard v. Federy, 3 Wall. 478; Lynch v. Bernal, 9 Wall. 315. The Supreme Court might modify the decree of the lower court so as to confirm the claim, the same as if it had been presented by the original claimant or his legal representative. U. S. v. Wilson, 1 Black, 267. A motion to change a decree could not be heard by the Supreme Court on affidavits showing facts not of record. U. S. v. Knight's Adm'r,

1 Black, 488. The survey must rea-
sonably conform to the decree, or it
will not be sustained. U. S. v. Halleck,
1 Wall. 439; Fossat Case, 2 Wall. 649;
Castro v. Hendricks, 23 How. 438.
The survey must reasonably conform
to the grant, or it will not be sus-
tained. Castro v. Hendricks, 23 How.
438. See also U. S. v. Seton, 10 Pet.
390; Snyder v. Sickles, 98 U. S. 203.
The record of juridical possession,
which is essential to invest title after
the grant, and the measurement re-
corded, control the United States in
a survey of the grant. Malarin v.
U. S., 1 Wall. 282; Graham v. U. S., 4
Wall. 259; Van Reynegan v. Bolton,
5 Otto, 33; U. S. v. Pico, 5 Wall. 536.
"Where the plaintiffs in ejectment
showed a legal title to land in Cali-
fornia under a patent from the
United States, and the survey under
their authority, it was proper in the
court below to refuse to admit testi-
mony offered by the defendant to
show that the survey was incorrect,
the defendants claiming under a
merely equitable title." Greer v.
Mezes, 24 How. 268.

§ 466. 126 St. at L. 854, § 4.
226 St. at L. 854, § 4.

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