Lytle v. Arkansas
50 U.S. 314

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U.S. Supreme Court

Lytle v. Arkansas, 50 U.S. 9 How. 314 314 (1850)

Lytle v. Arkansas

50 U.S. (9 How.) 314

Syllabus

The Preemption Act of May 29, 1830, conferred certain rights upon settlers upon the public lands, upon proof of settlement or improvement being made to the satisfaction

Page 50 U. S. 315

of the register and receiver, agreeably to the rules prescribed by the Commissioner of the General Land Office.

The Commissioner directed the proof to be taken before the register and receiver, and afterwards directed them to file the proof where it should establish to their entire satisfaction the rights of the parties.

Where the proof was taken in presence of the register only, but both officers decided in favor of the claim, and the money paid by the claimant was received by the Commissioner, this was sufficient. The Commissioner had power to make the regulation, and power also to dispense with it.

This proof being filed, there was no necessity of reopening the case when the public surveys were returned.

The circumstance that the register would not afterwards permit the claimant to enter the section, did not invalidate the claim.

The preemptioner had no right to go beyond the fractional section upon which his improvements were, in order to make up the one hundred and sixty acres to which settlers generally were entitled.

No selection of lands under a subsequent act of Congress could impair the right of a preemptioner, thus acquired.

This case involved the validity of an entry of four fractional quarter-sections of land, one of which only, namely, the northwest fractional quarter of section number two in township one north of range twelve west, was passed upon by this Court.

The history of the claim is this.

The Act of Congress passed on 29 May, 1830 4 Stat. 420, gave to every occupant of the public lands prior to the date of the act, and who had cultivated any part thereof in the year 1829, a right to enter at the minimum price, by legal subdivisions, any number of acres not exceeding one hundred and sixty, or a quarter-section, to include his improvement, provided, the land shall not have been reserved for the use of the United States or either of the several states.

In the third section of the act it is provided, that, before any entries being made under the act, proof of settlement or improvement shall be made to the satisfaction of the register and receiver of the land district in which the lands may lie, agreeably to the rules prescribed by the Commissioner of the General Land Office for that purpose.

On 10 June, 1830, the Commissioner issued his instructions to the receivers and registers, under the above act, in which he said, that the fact of cultivation and possession required

"must be established by the affidavit of the occupant, supported by such corroborative testimony as may be entirely satisfactory to both; the evidence must be taken by a justice of the peace in the presence of the register and receiver."

And the Commissioner directed, that, where the improvement was wholly on a quarter-section, the occupant was limited to such

Page 50 U. S. 316

quarter; but where the improvement is situated in different quarter-sections adjacent, he may enter a half quarter in each to embrace his entire improvement.

Another circular, dated 7 February, 1831, was issued, instructing the land officers, where persons claiming preemption rights had been prevented, under the above circular, from making an entry

"by reason of the township plats not having been furnished by the surveyor general to the register of the land office, the parties entitled to the benefit of said act may be permitted to file the proof thereof, under the instructions heretofore given, identifying the tract of land as well as circumstances will admit, any time prior to 30 May next."

And they were requested to

"keep a proper abstract or list of such cases wherein the proof shall be of a character sufficient to establish, to their entire satisfaction, the right of the parties, respectively, to a preemption,"

&c.

"No payments, however, were to be received on account of preemption rights duly established, in cases where the townships were known to be surveyed, but the plats whereof were not in their office, until they shall receive further instructions."

It may be here remarked, that the public surveys of the land in question were not completed until 1 December, 1833, nor returned to the land office until the beginning of the year 1834.

On 2 March, 1831, Congress passed an act 4 Stat. 473, "granting a quantity of land to the Territory of Arkansas, for the erection of a public building at the seat of government of said territory", but this act did not designate what specific tract of land should be granted for that purpose.

On 23 April, 1831, Cloyes filed the following affidavit in the office of the register, in support of his claim to a preemption right.

"Preemption Claim, May 29, 1830"

"Nathan Cloyes' testimony, taken on 23 April, 1831, before James Boswell a justice of the peace for the County of Independence, in the register's office, in the presence of the register."

"Question by the Register. What tract of the public lands did you occupy in the year 1829, that you claimed a right of preemption upon?"

"Answer. On the N.W. fract. 1/4 of sec. 2, in township 1 north of range 12 west, adjoining the Quapaw line, being the first fraction that lies on the Arkansas River, immediately below the Town of Little Tock, and contains about twenty-eight

Page 50 U. S. 317

or twenty-nine acres, as I have been informed by the County Surveyor of Pulaski County, and I claim under the law the privilege to enter the adjoining fraction or fractions, so as not [to] exceed one hundred and sixty acres, all being on the river below the before-named fraction."

"Question as before. Did you inhabit and cultivate said fraction of land in the year 1829; and if so, what improvement had you in that year in cultivation?"

"Answer. I did live on said tract of land in the year 1829, and had done so since the year 1826; and in the year 1829 aforesaid, I had in cultivation a garden, perhaps to the extent of one acre; raised vegetables of different kinds, and corn for roasting years ears, and I lived in a comfortable dwelling, east of the Quapaw line, and on the before-named fraction."

"Question as before. Did you continue to reside and cultivate your garden aforesaid on the before-named fraction until 29 May, 1830?"

"Answer. I did, and have continued to do so until this time."

"Question as before. Were you, at the passage of the act of Congress under which you claim a right of preemption, a farmer, or in other words what was your occupation?"

"Answer. I was a tin-plate worker, and cultivated a small portion of the fraction before named for the comfort of my family, and carried on my business in a shop adjoining my house."

"Question as before. Do you know of any interfering claim under the law, that you claim a preemption right upon the fraction whereon you live?"

"Answer. I know of none. And further this deponent saith not."

"NATHAN CLOYES"

"Sworn and subscribed to before me, the date aforesaid."

"J. BOSWELL, J.P."

On the same day, Cloyes filed also the corroborative testimony of John Saylor, Nathan W. Maynor, and Elliott Bursey.

On 28 May, 1831, the register and receiver made the following entry, and gave Cloyes the following certificate.

"Preemption Claim, 29 May, 1830"

"Nathan Cloyes, No. 24, N.W. fractional 1/4 2, 1 N. 12 W. granted for the above fractional 1/4, and reject the privilege of entering the adjoining fractions. May 28, 1831."

"H. BOSWELL, Register"

"JOHN REDMAN, Receiver"

Page 50 U. S. 318

On 15 June, 1832, Congress passed an Act, 4 Stat. 531, granting one thousand acres of land to the Territory of Arkansas, "contiguous to, and adjoining the Town of Little Rock," for the erection of a courthouse and jail at Little Rock.

On 4 July, 1832, Congress passed another Act, 4 Stat. 563, authorizing the governor of the territory to select ten sections of land to build a legislative house for the territory.

On 14 July, 1832, Congress passed an Act, 4 Stat. 603, giving to persons entitled to preemption under the act of 1830, but who had not been able to enter the same within the time limited, because the township plats had not been made and returned, one year from the time when such township plats should be returned, to enter said lands upon the same terms and conditions as prescribed in the act of 1830.

On 2 March, 1833, Congress passed an Act, 4 Stat. 661, authorizing the governor of the territory to sell the lands granted by the Act of 15 June, 1832.

Under these acts of Congress, Governor Pope made a part of his location upon the fractional quarter-sections in question, upon 30 January, 1833.

It has been already mentioned, that on 1 December, 1833, the public surveys were completed, and returned to the land office in the beginning of the year 1834.

On 5 March, 1834, the heirs of Cloyes he being dead paid for the four fractional quarter-sections, and took the following receipt.

"Receiver's Office at Little Rock, March 5, 1834"

"Received by the hands of Ben Desha, from Lydia Louisa Cloyes, Mary Easther Cloyes, Nathan Henry Cloyes, and William Thomas Cloyes, heirs of Nathan Cloyes, deceased, late of Pulaski County, A.T., the sum of one hundred and thirty-five dollars and seventy-six and 1/4 cents, being in payment for the northwest and northeast fractional quarters of section two, and the northwest and northeast fractional quarters of section one, in fractional township one, north of the base line, and range twelve, west of the fifth principal meridian, containing in all one hundred and eight 61/100 acres at $1.25 per acre."

"$135.76 1/4 P. T. CRUTCHFIELD, Receiver"

"A part of the land for which the within receipt is given, to-wit, 'the northwest fractional quarter of section two,' forms a part of the location made by Governor Pope, in selecting 1,000

Page 50 U. S. 319

acres adjoining the Town of Little Rock, granted by Congress to raise a fund for building a courthouse and jail for the Territory of Arkansas, and this endorsement is made by direction of the Commissioner of the General Land Office."

"P. T. CRUTCHFIELD, Receiver"

"Receiver's Office at Little Rock, March 5, 1834"

In 1843, the heirs of Cloyes filed a bill against all the persons mentioned in the title of this statement, who had purchased various interests in these fractional quarter-sections, and claimed title under Governor Pope. The bill was filed in the Pulaski Circuit Court of the state, setting forth the above facts, and praying that the defendants might be ordered to surrender their patents and other muniments of title to the complainants.

The parties who were interested in the northwest fractional quarter of section number two answered the bill. The other parties demurred.

The answers admitted that proof of a preemption right to the northwest fractional quarter of section two was made by Cloyes at the time and in the manner set forth in the bill, but deny that he had a valid preemption to it. They admit also, that Governor Pope selected said quarter in pursuance of the two acts of Congress of 15 June, 1832, and 2 March, 1833, but deny that he did so illegally or by mistake.

In July, 1844, the Pulaski Circuit Court sustained the demurrer of the parties who had demurred, and dismissed the bill as to those who had answered.

In July, 1847, the Supreme Court of Arkansas, to which the cause had been carried, affirmed the judgment of the court below, and a writ of error brought the case up to this Court.

It was argued by Mr. Lawrence and Mr. Badger, for the plaintiffs in error, and Mr. Sebastian, for the defendants in error.

The counsel for the plaintiffs in error said that the three following questions arose.

1. Was Cloyes entitled to have entered the land in question on 28 May, 1831, if the township plat had at that time been in the land office?

2. Did the act of 15 June, 1832, granting to the Territory of Arkansas one thousand acres of land, generally, confer any specific right to this particular fraction before its actual selection by the governor?

3. If not, then did not the act of 14 July, 1832, reserve this fraction from selection, location, and sale, until the expiration

Page 50 U. S. 320

of one year from the return of the township plat to the land office?

In regard to the first question, there is but one objection which can be urged with even a tolerable amount of plausibility in its favor, that which is made the first ground of demurrer by those who have demurred to the bill, namely, that the proof exhibited in the bill does not appear to have been taken in the presence of the register and receiver.

The circular dated June 10, 1830, from the General Land Office, contains, among other things, the following paragraph, viz.:

"The evidence must be taken by a justice of the peace, in the presence of the register and receiver, and be in answer to such interrogatories propounded by them as may be best calculated to elicit the truth."

The caption of the testimony in the record is,

"Nathan Cloyes' testimony, taken on 23 April, 1831, before James Boswell a Justice of the Peace for the County of Independence, in the register's office, in the presence of the register."

It is maintained that this omission in the caption to make it appear that the evidence was taken before the register and receiver, destroys Cloyes' right of preemption. To this view several answers may be given. It does not positively appear that the receiver was not present, and the presumption of law is that a government officer has done his duty till the contrary appears. Wilcox v. Jackson, 13 Pet. 511; Winn v. Patterson, 9 Pet. 663; 1 Cooke, Tenn. 492; 3 Yerger 309; 2 Tenn. 154, 284, 306, 421. It does appear that both the register and receiver, on the same day, 23d April, 1831, admitted Cloyes' right to enter the land in question.

But suppose the proof was not taken in presence of both the register and receiver, still the land office circular was merely directory to the officers as to the manner of taking the proof, and any mere error or irregularity on the part of the officers cannot prejudice the rights of the preemption. 3 Johns.Ch. 275; 2 Cond. 237, 243; 2 Edw.Ch. 261; 4 How. (Miss.) 57; Ross v. Doe, 1 Pet. 655; Pond v. Negus, 3 Mass. 230; Rodebaugh v. Sanks, 2 Watts 9; Holland v. Osgood, 8 Verm. 280; Corliss v. Corliss, 8 Verm. 390; People v. Allen, 6 Wend. 486.

The Commissioner of the General Land Office, who issued the circular, by authorizing the receiver to take the payment offered by the heirs of Cloyes without taking any exception to the manner in which the proof had been taken, suspended pro hac vice the regulation, and sanctioned the mode in which it was in fact taken. The regulation itself was full of inconvenience,

Page 50 U. S. 321

was never fully carried out in fact, and was finally rescinded by the circular of 22 July, 1834, 2 Land Laws 589.

The decision of the register and receiver was in favor of Cloyes' right to the northwest fractional quarter of section two, and it being upon a matter within their exclusive jurisdiction, and no appeal being given, that decision was final and conclusive. Wilcox v. Jackson, 13 Pet. 498.

Cloyes' right of preemption, then, was perfect, and he was only prevented from consummating it by the fact, that the township plat was not returned before the expiration of the preemption law of 1830.

2. The Act of 15 June, 1832, which was passed after the Act of 20 May, 1830, had expired, was only a general grant of one thousand acres of land in the vicinity of Little Rock, without any specification or description of any particular land whatever, "which lands," it provides, "shall be selected by the governor of the territory in legal subdivisions," &c.

We maintain that before such selection there was no appropriation of or lien upon any particular tract. It was the selection by the governor that was to withdraw any tract from the public domain. 46 U. S. 5 How. 10.

Covenant to settle particular lands, if for valuable consideration, creates a lien upon the lands, which will be enforced against all but a purchaser for value and without notice. 1 Vern. 206; 1 P.Wms. 282, 429.

But covenant to settle lands of a particular value, without mentioning any lands in particular, creates no lien on any of the covenantor's lands. 1 P.Wms. 429; 4 Bro.Ch. 468, Eden's note; Russell v. Transylvania University, 1 Wheat. 432.

Governor Pope did not make his selection until 30 January, 1833.

3. Prior to this selection, the Act of 14 July, 1832, was passed, giving to persons entitled to preemption under the Act of 29 May, 1830, but who had not been able to enter said lands because the township plats had not been made and returned, the right to enter said lands, on the same conditions in every respect, within one year from the time when said township plats should be returned.

It is clear, then, that if the grant of one thousand acres to Arkansas did not confer a specific right to any particular land, until selection made by its governor, and that selection was not made until after this act of 14th July, 1832, was passed, then the latter act reserved from any future selection lands which came within its provisions. The northwest fractional quarter

Page 50 U. S. 322

of section two could not be legally selected by the governor in 1833, because Cloyes had a right of preemption to it under the Act of 29 May, 1830, which the want of the township plat had alone prevented him from completing. That township plat was not returned until the beginning of the year 1834. The Act of 14 July, 1832, gave him until the year 1835 to make his entry, and within that time he made his payment and applied to enter the land.

It is manifest, then, that the bill should have been sustained by a decree in favor of the right of Cloyes' heirs to the northwest fractional quarter of section two, on which his settlement and cultivation were proved.

As to the remaining fractional quarters, the parties interested have filed a demurrer to the bill, setting out several grounds of demurrer. The first and principal of these grounds has already been answered. Most of the other grounds are but different statements of a single objection -- namely that Cloyes, having proved his settlement upon one quarter fractional section alone, could not legally claim anything beyond the fractional quarter on which he was settled.

The Act of 29 May, 1830, does not restrict the right of preemption to the quarter-section on which settlement is made. The first section is

"That every settler or occupant of the public lands, prior to the passage of this act, who is now in possession and cultivated any part thereof in the year one thousand eight hundred and twenty-nine, shall be and he is hereby authorized to enter with the register of the land office for the district in which such lands may lie, by legal subdivisions, any number of acres, not more than one hundred and sixty, or a quarter-section, to include his improvements, upon paying,"

&c. 1 Land Laws, 173.

The only restriction which the law imposes is one hundred and sixty acres, to be entered by legal subdivisions, and to include his improvement. Within these conditions, he may enter any number of acres and any number of legal subdivisions. But we are told that the General Land Office put upon this law the construction that the claimant was to be confined to the fraction on which he settled. It is true that for a time this construction did prevail in the General Land Office, and, as we contend, without any warrant of law.

But that construction has long since been overruled in that office. It was overruled by express act of Congress. The second section of the Act of 14 July, 1832, provided

"That the occupants upon fractions shall be permitted in like manner to enter the same so as not to exceed in quantity one quarter-section,

Page 50 U. S. 323

and if the fractions exceed a quarter-section, the occupant shall be permitted to enter one hundred and sixty acres, to include his or their improvement at the price aforesaid."

Since that time a different construction has prevailed in the General Land Office. See Circular, March 1, 1834, 2 Land Laws, 587. See also the letter of Secretary of Treasury of October 31, 1833, 2 Land Laws, 572; also Circular of 7 May, 1833.

Page 50 U. S. 328

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