delivered the opinion of the court.
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,
, 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 che 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.
Seeond, 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
*24
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 tlie 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,
It will thus be seen that the period of his recognized right and of its uninterrupted ex,ercise extended from May 12, 1870, to April 15, 1872. Within that .'time all the proceedings in the Bemhisel 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.
hunt,
. 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 *25 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 hy 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.