¶1On the 27th of September, 1856, the State Land Agent, for the Helena District, sold to William A. Jones, large bodies of swamp lands, which had been theretofore approved to the State, giving him a certificate of purchase, which recites that the purchaser had paid the price thereof. In 1871 the State, as it appears, re-sold and conveyed to Moses A. Beach portions of the same tracts. Smithee, as agent for the legal representatives of Jones, obtained from the Land Commissioner a refunding certificate as for money erroneously paid into the State treasury. But the Auditor refused to issue warrants upon such certificate, under the Act of March 18,1881.
¶2Smithee thereupon applied to the Circuit Court for a writ of mandamus to compel the Auditor to issue his warrants, but his prayer was denied.
¶3Waiving the question whether Smithee is the proper party to sue, we will consider it as if the personal representative of Jones was before tbe Court.
¶4To entitle the petitioner to this relief, it was necessary to show that the original purchase money was paid by Jones and received by the 'State, under some mistake either of law or of fact. But for aught that appears, the money was rightfully paid. The title to the lands was vested in the State by' Act of Congress, approved September 28th, 1850; they had been confirmed to the State by the action of the proper department of the general government before Jones bought; they were subject to sale, and the land agent was empowered to sell. How if came to pass that no patent was ever issued to Jones and that a patent was issued to Beach, the record does not disclose. But it is plain that whatever remedy Jones’ heirs have, lies against the lands themselves in the hands of the subsequent purchaser and not against the State.
¶5Judgment, affirmed.