Where a settler upon the public lands had a preemption right to
them and sold them to a person who again sold them to a third
party, the original vendor has a lien upon the land for the balance
of the purchase money still due, and can enforce it by a bill in
chancery notwithstanding the vendee has taken out a patent in his
own name under a subsequent preemption law.
On 12 April, 1814, Congress passed an Act, 3 Stat. 122, § 5,
giving a right of preemption to settlers upon certain portions of
the public lands, under certain conditions, one of which was that
the Indian title should have been extinguished.
A person by the name of Jane Matthers, claimed a right of
preemption, under this act, to the southeast quarter of section
one, township eighteen south, range one west, containing 168 96/100
acres, lying south of the Arkansas River.
On 24 August, 1818, the Indian title to this country became
extinguished by the ratification of a treaty concluded with the
Quapaw Indians.
Jane Matthers assigned her preemption right to Thomas T.
Tunstall, but at what time the record did not show.
In 1833, an agreement was made for the sale of this land,
between Tunstall and J. M. Pintard, which was not formally
concluded until the ensuing year, but Pintard, with his family,
moved upon the land in the autumn of 1833, and had several slaves
engaged in clearing the land, making fences &c.
On 1 April, 1834, Tunstall executed a deed for the land to
Pintard for the consideration of one thousand five hundred dollars
cash, and covenanted to convey the legal title as soon as a patent
should issue for it.
On 19 June, 1834, Congress passed an Act, 4 Stat. 678, declaring
"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 1833" was entitled to a preemption.
On 24 July, 1834, a preemption right and certificate of purchase
was granted and issued to Tunstall for the quarter section which he
claimed under Jane Matthers under the preemption act of 1814 by the
land officers at Little Rock.
On 23 March, 1835, Pintard sold the quarter section which he had
purchased from Tunstall, together with part of an adjacent quarter
section, which he had acquired in another way,
Page 53 U. S. 25
making two hundred acres in all, to William Rhodes, for the
price of forty dollars per acre, binding himself to convey the same
by a general warranty deed as soon as the patents could be
procured. Rhodes executed two promissory notes for $4,000 each, the
first due and payable on 1 March, 1836, and the second due on 1
March, 1837. Pintard then delivered possession of the land and
improvements to Rhodes.
On 13 March, 1837, Rhodes sold the land which he had obtained
from Pintard, together with some other land to Archibald Goodloe,
the appellant in the present case, for sixty-five dollars per acre,
being estimated to contain four hundred and fifty acres when
accurately surveyed. Five thousand seven hundred dollars was to be
paid in hand, and the balance was to be paid in sixty days, except
the amount yet remaining unpaid by Rhodes for the purchase of said
land, which was to be paid as soon as the title with general
warranty should be regularly made to said Goodloe.
On 24 February, 1838, the Commissioner of the Land Office
annulled the entry by Tunstall as assignee of Jane Matthers
"inasmuch as the tract entered was not the property of the United
States at the passage of the act under which the claim was made,"
viz., the Act of 12 April, 1814. He therefore cancelled
the certificate and directed the register and receiver at Little
Rock to refund the money to whoever might be entitled to receive
the same.
On 28 March, 1838, Goodloe paid to Pintard the sum of $600,
which was credited on the back of the note, which had become due on
1 March, 1836, given by Rhodes to Pintard.
On 22 June, 1838, Congress passed another preemption law, 5
Stat. 251, by which every settler of the public lands being the
head of a family or over twenty-five years of age should be
entitled to a preemption.
On 15 February, 1839, Goodloe proved his preemption right under
the above law entirely for his own benefit.
On 31 May, 1839, Goodloe paid to Pintard the sum of $1,363.82,
which was credited upon the same note given by Rhodes, upon which
the preceding payment was credited.
On 9 April, 1840, Goodloe obtained his preemption right, and on
3 March, 1841, a patent was issued to him by the United States.
On 3 March, 1843, Congress passed an Act, 5 Stat. 603, extending
to the settlers on the lands south of the Arkansas the same
privileges which were granted by the act of 1814.
In March, 1842, Pintard, a resident of the State of
Mississippi,
Page 53 U. S. 26
filed his bill in the Circuit Court of the United States for the
District of Arkansas against Goodloe and Tunstall, praying for a
decree against Goodloe for the remainder of the purchase money due
to him upon the purchase of the tracts of land and claiming a lien
thereon to have them subjected to sale for the payment of said
money. It is not necessary to notice any other of the proceedings
in the case than Goodloe's answer, which was filed in December,
1842. In it he resisted the claim against him principally on the
ground that Pintard never had any good and valuable claim or title
to the land, either in law or equity, and therefore Pintard was not
entitled to demand and receive the consideration agreed to be paid.
Goodloe claimed that he himself held the legal title derived
directly from the United States.
In April, 1845, the cause came on for hearing upon bill,
exhibits, answers, issues, and evidence, and was argued, and in
April, 1847, a decree was passed that Goodloe should pay to Pintard
the sum of ten thousand five hundred and fifty-two dollars,
together with ten percent interest from the rendition of the decree
till paid, that the two pieces of land mentioned in the proceedings
should be charged with the payment, and that in default of payment
by 1 November ensuing, the land should be sold, &c.
From this decree Goodloe appealed to this Court.
Page 53 U. S. 36
MR. JUSTICE McLEAN delivered the opinion of the Court.
Under the Act of 12 April, 1814, Jane Mathers claimed a right of
preemption, by virtue of occupancy and cultivation, to the
southeast quarter of section one, township eighteen south, range
one west, containing one hundred and sixty-eight acres and
ninety-six hundredths, lying south of the Arkansas River. She
assigned her right to Thomas T. Tunstall, who entered and paid for
the land at the Land Office at Little Rock 24 July, 1834, and
obtained a patent certificate. On 24 February, 1838, this purchase
was annulled by the Commissioner of
Page 53 U. S. 37
the Land Office on the ground that the Indian title to the land
had not been extinguished when the settlement was made. The Indian
title was relinquished to the United States by the Quapaw Treaty,
24 August, 1818.
This tract was purchased of Tunstall by Pintard in the spring of
1833, who took immediate possession and made improvements on it. In
the autumn of the same year, he removed his family to the land,
constructed cabins, stables, and other fixtures, and in the spring
of 1834 he cultivated seventy-five or eighty acres in corn and
cotton.
On 23 March, 1835, Pintard sold the above quarter section and a
part of the southwest quarter of section six, so as to make a tract
of two hundred acres, at forty dollars per acre, to William Rhodes,
who gave two notes of four thousand dollars each, payable in one
and two years, with interest at ten percent per annum. The two
hundred acres were sold by Rhodes to Goodloe on 3 March, 1837, for
sixty-five dollars per acre. As a part of the consideration for
this purchase, Goodloe agreed to pay Pintard the amount of his
claim as soon as a regular title for the premises should be
obtained.
Goodloe, on 15 February, 1839, proved a preemption in his own
name under the Act of June 22, 1838, to the quarter section, and
paying the purchase money into the Land Office, he obtained a
patent in his own name. Prior to this, on his contract with Rhodes,
he paid to Pintard nineteen hundred sixty-three dollars and
eighty-two cents. But having obtained the title to the land in his
own name, he refused to make any further payments to Pintard on the
ground that his claim was void. To enforce the payment of the sum
due him on the sale to Rhodes, Pintard filed the bill now before
us, with a prayer that the land might be sold, or so much of it as
should be necessary to discharge the balance due to him.
It must be conceded that the first settler upon this land, the
Indian title to it not having been extinguished, could claim under
the act of 1814 no preemptive right. No laws giving to settlers a
right of preemption can be so construed as to embrace Indian lands.
Such lands have always been protected from settlement and survey by
penal enactments. But it appears that the Indian claim to this land
was relinquished to the United States by treaty in 1818, after
which it was embraced by all general acts giving to settlers a
right of preemption.
By the Act of 26 May, 1824, preemption rights were given north
of the Arkansas River to all who were entitled to such rights under
the act of 1814, and by the third section of the act of 1 March,
1843, every settler on the public lands south of the Arkansas River
was entitled to the same benefits
Page 53 U. S. 38
under the provisions of the act of 1814, as though he had
resided north of said river. By these acts, a right of preemption
was given in virtue of the first settlement upon the land.
But there was another and prior act which gave to the occupant
of this tract a right of preemption. By the Act of 19 June, 1834,
every settler upon the public lands prior to the passage of that
act who was in possession of a quarter section and cultivated a
part of it in 1833 was entitled to a preemption. In 1833, Pintard
was in possession of the quarter section and cultivated a part of
it, and he continued to occupy and improve it until the spring of
1835, when he sold his right to Rhodes.
By his purchase, Goodloe entered into the possession of a
valuable property, and if he desired to rescind the contract, it
was incumbent on him to relinquish the possession of the quarter
section and claim the cancelment of the contract. He cannot avail
himself of the benefit of the contract and resist a performance of
it on his part.
But Pintard, when he sold to Rhodes, was entitled to the
preemption of the quarter section. His claim was not only a valid
one, but it was sold on reasonable terms, as Rhodes in two years
sold the same to Goodloe at an advance of twenty-five dollars per
acre. The attempt under such circumstances of Goodloe to avoid the
payment of the consideration by procuring the title in his own name
is fraudulent. A title thus procured would have enured to the
benefit of the vendor even if the preemptive right had not been
vested in him.
A doubt is suggested in the argument whether Goodloe, having
purchased from Rhodes, can be made responsible to Pintard. In his
contract of purchase, as a part of the consideration Goodloe bound
himself to pay the amount due to Pintard from Rhodes on the
previous purchase. It has been held that under such circumstances
an action at law may be maintained in the name of the person to
whom payment is to be made. But this is a case in chancery, and no
one has doubted that in equity such a contract may be enforced.
Has Pintard a lien upon the land for the balance of the purchase
money? We think he has. Goodloe not only had notice of this claim,
but he bound himself to pay it.
It is alleged that there is a mistake in the computation of the
amount due as decreed in the circuit court. If there be an error in
the calculation, it is in favor of Goodloe, and of which he has no
right to complain.
In its decree the circuit court gave the defendant a credit for
the money paid to Pintard, and also a loan to him of two hundred
dollars and a liberal allowance for the expense of procuring the
title. A proper deduction was also made for the deficiency in the
number of acres sold.
Page 53 U. S. 39
There appears to be no error in the decree; it is therefore
Affirmed with costs.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Arkansas, and was argued by counsel. On consideration whereof it is
now here ordered and decreed by this Court that the decree of the
said circuit court in this cause be and the same is hereby affirmed
with costs.