HUSSEY v. SMITH.

There can be no question that under the act of Congress of March 2, 1867 (14 Stat. 541), Smith had an equitable interest in the premises in controversy which he could sell and convey. Phyfe v. Wardell, 5 Paige (N. Y.), 268; Armour v. Alexander, 10 id. 571; Tredgill v. Pintard, 12 How. 24. Until the mayor of Salt Lake City made the entry at the proper land-office, which he was authorized to make, the legal title was in the United States. By the entry it became vested in the mayor. He held the entire tract so entered 'in trust for the several use and benefit of the occupants thereof, according to their respective interests.' Such is the language of the statute. The act does not prohibit a sale, but is silent upon the subject. Smith mortgaged to Bernhisel, and subsequently to Linforth. Bernhisel foreclosed, making Smith and Linforth defendants. Under a decree of the proper court, the premises were sold by the United States marshal. Jennings became the purchaser, and thereafter sold and conveyed to the appellant, by deed bearing date March 9, 1872. On the 24th of May, 1872, the appellant filed her claim pursuant to law in the proper probate court, for a judgment to enable her to obtain a deed from the mayor for the premises. Smith had before filed a claim also. On the 10th of July, 1872, the Probate Court decided in favor of Smith. She thereupon appealed to the District Court. The decision of the probate judge was affirmed. She then appealed to the Supreme Court of the Territory. The judgment of the Probate Court was again affirmed, and she thereupon removed the case by appeal to this court.

The validity of the mortgage to Bernhisel is not controverted, nor is it denied that, if the foreclosure and sale divested Smith's title, the judgment of the Supreme Court of the Territory was erroneous, and must be reversed.

It was held by that court that the foreclosure proceedings were void, for two reasons:——

First, That the mortgage was not sufficiently described in the complainant's petition to warrant the decree pro confesso, which was taken.

Second, That the United States marshal, by whom the original process in the case was served, the sale made, and the deed to the purchaser executed, had no authority to act in any wise in the premises.

The first objection is clearly untenable, and has not been insisted upon here. We therefore pass it by without further notice.

The second objection is necessary to be considered.

There were two marshals in the Territory,—one appointed by the national government, the other under a territorial law. The former was called the marshal of the United States, the latter, marshal of the Territory.

A question arose which officer was entitled to serve the processes issuing from the local courts. A case was brought in the proper district court to settle their respective claims. On the 12th of May, 1870, that court decided that the right and authority belonged exclusively to the marshal of the United States. The Supreme Court of the Territory, at its October Term in the same year, affirmed this judgment. Such was then understood to be the law, and the marshal of the United States proceeded in the performance of his official functions, having the field to himself, until the subject came under the consideration of this court in Clinton et al. v. Englebrecht, 13 Wall. 434. It was then held (on the 15th of April, 1872) that the marshal of the United States had such authority only in cases where the United States were concerned.

It will thus be seen that the period of his recognized right and of its uninterrupted exercise extended from May 12, 1870, to April 15, 1872. Within that time all the proceedings in the Bernhisel foreclosure case were had. The petition to foreclose was filed, the process was issued and served upon Smith, the decree was taken, the sale was made, and the marshal's deed was executed to Jennings. During all this time the marshal's acts were valid, as being those of an officer de facto. They were as much so as if they had been done by him de jure. These remarks apply with full force to his acts as a ministerial officer in the Bernhisel case. An officer de facto is not a mere usurper, nor yet within the sanction of law, but one who, colore officii, claims and assumes to exercise official authority, is reputed to have it, and the community acquiesces accordingly. Wilcox v. Smith, 5 Wend. (N. Y.) 231; Gilliam v. Reddick, 4 Ired. (N. C.) L. 368; Brown v. Lunt, 37 Me. 423. Judicial as well as ministerial officers may be in this position. Freeman on Judgments, sect. 148. The acts of such officers are held to be valid because the public good requires it. The principle wrongs no one. A different rule would be a source of serious and lasting evils.

The marshal's sale and deed to Jennings extinguished the entire right of Smith to the premises. Thereafter he stood to them in the relation of a stranger. All the title which he possessed when the mortgage was executed passed from him to Jennings, and from Jennings to the appellant.

The territorial law of Utah of Feb. 17, 1869 (Compiled Laws of Utah, 379), authorized to be passed by the act of Congress before mentioned, gave to the party 'entitled to the occupancy or possession,' as well as to the 'occupant or occupants,' the right to apply for the judgment by the Probate Court, upon which, when rendered, the mayor was to execute his deed. If this were not so, the right would be clearly within the equity of the act of Congress, and conferred by it.

The rejection of the appellant's claim and the adjudication in favor of Smith, who had not then a shadow of right to the premises, by the Probate Court was, therefore, a gross error, and the Supreme Court of the Territory repeated it by affirming the judgment.

The judgment of the latter court will, therefore, be reversed, and the cause remanded with directions to proceed in conformity to this opinion; and it is

So ordered.

NOTE.—Hussey v. Merritt, appeal from the Supreme Court of the Territory of Utah, was argued at the same time and by the same counsel as was the preceding case. MR. JUSTICE SWAYNE stated that the opinion in that case was decisive of this. The cardinal question here, as there, was as to the validity of the proceedings touching the sale under the Bernhisel mortgage, and the result must be the same.