Marsh v. Nichols

• Decision Date: 05 March 1883
• Citation: Marsh v. Nichols, 15 F. 914 (E.D. Mich. 1883)
• Parties: MARSH v. NICHOLS and others. [1]
• Court: U.S. District Court — Eastern District of Michigan

15 F. 914

MARSH v. NICHOLS and others. ^[1]

United States Circuit Court, E.D. Michigan.

March 5, 1883

This was a bill in equity to recover damages for the infringement of patent No. 236,052, issued to Elon A. Marsh, for an improvement in steam-engine valve gear. The only defense made upon the hearing was that there was no such patent in existence at the time the bill was filed.

Complainants produced at the hearing a patent marked Exhibit A, bearing date December 28, 1880, and purporting to be signed by 'A. Bell, Acting Secretary of the Interior,' and 'E. M. Marble, Commissioner of Patents. ' The further evidence consisted of a stipulation to the following effect 'That the patent, Exhibit A, was received from the patent-office by complainants, on or about January 2, 1881 in all respects in the same condition as it now is, save the words 'A. Bell' were not thereon where they now appear, and that the signature of E. M. Marble, commissioner of patents, and the seal of the patent-office are genuine that neither complainants nor their counsel had knowledge of the omission of the signature of the secretary of the interior to said patent, and supposed it to be regular in all respects, having never had their attention called to the same until after the commencement of this suit, and on or about February 12, 1882; that said Exhibit A, was, on or about the seventeenth of February, 1882, sent by their solicitor to the patent-office, accompanied by a request from complainants to have the mistake corrected; that said exhibit was, on or about the twenty-fourth day of February, 1882, returned to their solicitor, signed 'A. Bell, Acting Secretary of the Interior,' and with no other or further change thereof. ' There was also admitted in evidence a letter from the commissioner of patents, of date April 28, 1882, stating that the application for the patent was duly made and granted, and the fees paid; that the case was placed in the weekly issue of patents of December 25, 1880, and duly entered in the alphabetical list of patentees; that the specifications and drawings were duly printed and published, the patent regularly prepared and presented to the commissioner of patents and the acting secretary of the interior for signature; that the said letters patent, supposed to be complete in every respect, were mailed to the patentees; that the patent was returned to the office February 23, 1882, and attention called to the fact that the signature of Mr. Bell, who signed the patents issued December 28, 1880, as acting secretary of the interior, had been omitted. They were presented to Mr. Bell, who affixed his signature to the letters patent, which were turned to the patentee's solicitor, and that the omission of the signature was purely accidental, and probably resulted from their being inadvertently laid aside, or withdrawn from before the acting secretary while he was in the act of signing.

R. A. Parker, for plaintiff.

George Harding and Alfred Russell, for defendants.

BROWN J.

Section 4883 of the Revised Statutes requires all patents to be issued in the name of the United States, under the seal of the patent-office, and signed by the secretary of the interior. Without this signature it was not merely a defective instrument; it was wholly void. The statute has required the patent to be attested by certain signatures, and the omission of one is as fatal as the omission of both. A similar omission was held fatal to a land patent in McGarrahan v. Mining Co. 96 U.S. 316, and to a mortgage in Goodman v. Randall, 44 Conn. 321. In the former case Mr. Chief Justice WAITE, in delivering the opinion of the court, said:

'Each and every one of the integral parts of the execution is essential to the perfection of the patent. They are of equal importance under the law, and one cannot be dispensed with more than another. Neither is directory, but all are mandatory. The question is not what, in the absence of statutory regulations, would constitute a valid grant, but what the statute requires; not what other statutes may prescribe, but what this does. Neither the signing nor the sealing nor the countersigning can be omitted, any more than the signing or the sealing or the acknowledgment by a grantor, or the attestation by witnesses, when by statute such forms are prescribed for the due execution of deeds by private parties for the conveyance of land. It has never been doubted that in such cases the omission of any statutory requirements invalidates the deed.'

This case also disposes of the further point made by the complainants that the patent is but evidence of the grant, and that the complainant may resort to the records of the patent-office to prove his title. But if the instrument as it existed on the day it bears date was not entitled to record, (as it would not be if not signed,) the record is of no force. It is merely prima facie evidence, and liable to be rebutted by proof that no patent was actually signed. Upon this point the chief justice observed:

'It is said that the record of

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