Page:Federal Reporter, 1st Series, Volume 10.djvu/652

6*0 IEDEBAL KEPORTEB. �The fact that the execution is regular in fonn for a money judg- ment, under the Code of Civil Procedure, can no more affect the power of the sheriff to sell in the mode prohibited than an execution entirely regular, and apparently valid upon its face, issued upon a judgment absolutely void upon the face of the cecord. I am unable to distinguish this case from the cases cited, and must hold the sale and the sheriff's deed to be void. This view renders it unnecessary to consider the other objections to the validity of the sale. As to the second ground relied on for a recovery : It appears from the facts found that the plaintiff has a patent is- sued upon a confirmation of a claim arising under the laws of Mexico, which includes eight small tracts of the land described in the com- plaint, amounting in the aggregate to a little over 76 acres ; while the patent of the defendants, in express terms, reserves and excludes those tracts from the operation of their patent. To those tracts, then, the plaintiff has a patent of the United States, and the defendants have none. It is claimed by defendants that their decree of comfir- mation covers these pieces of land ; that they ought, therefore, to have been included in the patent, and that their exclusion was unauthor- ized and without eflfect. I do net so understand the law, as settled in regard to such titles, as applied to actions at law to recover the possession of lands. As I understand the law as settled in a long line of decisions in the supreme court of California, and now afSrmed and fully established by the decisions of the supreme court of the United States, the patent issued upon a confirmed Mexican grant is the final, authentic, and conclusive record which establishes the legal title in the patentee, which must prevail in an action at law against any party having no patent to the land; that it is conclusive and unassailable collaterally by any party having no patent. This is so held, following the California decisions, in Beard v. Federey, 3 Wall. 492, where the patent is declared to be record evidence that not only the claim is valid, but that the grant "is correctly located now so as to embrace the promises as they are surveyed and described, " and that "it is in this effect of the patent as a record of the government that its security and protection chiefly lie." So, also, the principle is asserted in Mora v. Foster, 3 Sawy. 472-3, and distinctly affirmed on appeal in Foster v. Mora, 98 U. S. 427. The series of the princi- pal California cases on the point will be found cited in Bissell v. Hen- skaw, 1 Sawy. 565 et seq. It is true that in Beard v. Federey there was no final decree of confirmation of the opposing grant. But in ��� �