This is a suit in equity by the United States for the cancellation of certain patents for lands in Allen county, Kan., of date, respectively, November 3, 1873, March 19, 1875, August 17, 1876, and April 23, 1877, and alleged to have been issued to the Missouri, Kansas & Texas Railway Company without authority of law.
The institution of such a suit as this was recommended by the secretary of the interior in a communication addressed to the attorney general, under date of June 10, 1886. 4 Dec. Dep. Int. 573, 578; 5 Dec. Dep. Int. 280, 481. The present suit was not, however, brought until after the passage of the act of congress of March 3, 1887, requiring the immediate adjustment by the secretary of the interior, in accordance with the decisions of this court, of all unadjusted land grants made by congress to aid in the construction of railroads. 24 St. p. 556, c. 376. That act made it the duty of the attorney general to commence and prosecute suits for the cancellation of all patents, certification, or other evidence of title issued for public lands, and to restore the title to the United States in all cases of lands appearing, upon the completion of such adjustments or sooner, to have been 'erroneously certified or patented by the United States, to or for the use or benefit of any company claiming by, through, or under grant from the United States, to aid in the construction of a railroad,' if such company neglected or failed, upon demand by the secretary of the interior, to relinquish or reconvey to the United States all such lands, whether within granted or indemnity limits. Sections 1, 2. The act also provided that a bona fide settler whose homestead or pre-emption entry had been erroneously canceled on account of any railroad grant, or the withdrawal of public lands from market, should, upon application, be reinstated in all his rights, and allowed to perfect his entry, by complying with the public land laws, provided he had not located another entry in lieu of the one so erroneously canceled, or voluntarily abandoned his original entry; and if a settler did not, within a reasonable time to be fixed by the secretary of the interior, make his application to be reinstated, all such unclaimed lands were required to be disposed of under the public land laws, with priority of right to bona fide purchasers, if any; then to bona fide settlers residing thereon. Section 3.
In respect to lands, except those last mentioned, found to have been erroneously certified or patented, and to have been sold by the grantee company to citizens of the United States, or to persons who had declared their intention to become such, it was provided that 'the person or persons so purchasing in good faith, his heirs or assigns, shall be entitled to the land so purchased, upon making proof of the fact of such purchase at the proper land-office, within such time and under such rules as may be prescribed by the secretary of the interior, after the grants, respectively, shall have been adjusted; and patents of the United States shall issue therefor, and shall relate back to the date of the original certification or patenting, and the secretary of the interior, on behalf of the United States, shall demand payment from the company which has so disposed of such lands of an amount equal to the government price of similar lands;' the right of the purchaser of the lands so erroneously withdrawn, certified, or patented to recover the purchase money therefor from the grantee company, less the amount paid to the United States by such company, being saved; and no mortgage or pledge of the lands by the company to be considered as a sale for the purpose of the act. Section 4.