An Act of Congress passed in 1812, 2 Stat. 729, gave a bounty of
160 acres of land to every regular soldier of the army, and made
void all sales or agreements by the grantee before the patent
issued.
Another Act, passed in 1826, 4 Stat. 190, permitted the soldier,
under "certain circumstances," to surrender his patent, and select
other land. This act did not contain the avoiding clause contained
in the first act.
These acts have no necessary connection in this particular, and
an agreement to convey, made after the first patent was
surrendered, and before the second was issued, held to be valid and
binding.
Maxwell and Watkins brought an ejectment against Moore and
others to recover the northeast quarter of section ten, in township
seven north, range seven west, containing 160 acres of land, in the
County of White, and State of Arkansas. The plaintiffs claimed
under the heirs of one McVey upon the ground that, under the two
acts of Congress of 1812 and 1826, McVey could not alienate his
land or covenant to convey it away
Page 63 U. S. 186
before the issuance of a patent. There were other points
involved in the trial in the state courts, as will be seen by a
reference to 18 Ark. 475. But the above was the only point before
this Court.
Page 63 U. S. 190
MR. JUSTICE CATRON delivered the opinion of the Court.
This cause is brought before us by writ of error to the Supreme
Court of Arkansas, and presents a single question for our
consideration.
Allen McVey served as a regular soldier in the War of 1812, and
was entitled to a tract of 160 acres of land as a bounty for his
services. The land was located and granted in what is now the State
of Arkansas. By the Act of May 6, 1812, which granted the bounty
lands, all sales or agreements made by a grantee of these lands
before the patent issued were declared to be void.
Many tracts of the lands granted turned out to be unfit for
cultivation, so that the soldier took no benefit, and as
compensation, the Act of May 22, 1826, declares that the soldier,
or his heirs, to whom bounty land has been patented in the
Territory of Arkansas, and which is unfit for cultivation, and who
has removed or shall remove to Arkansas with a view to actual
settlement on the land, may relinquish it to the United States and
enter a like quantity elsewhere in the district, which may be
patented to him. This act was continued in force by that of May 27,
1840.
McVey surrendered his first patent according to the act of 1826,
and in 1842 another issued in his name for the land in dispute.
In 1834, McVey gave William Pelham a bond to convey to him the
land that might be entered on his certificate of surrender, known
as a float, and a power of attorney to locate the same, and obtain
the patent. McVey died in 1836. In 1842, Pelham entered the land in
controversy in McVey's name.
Page 63 U. S. 191
A special act of the Legislature of the State of Arkansas was
passed, authorizing McVey's administrator to convey the land to
Pelham, which was done.
Afterwards, the plaintiffs in error obtained a conveyance from
the heirs of McVey, on which their action of ejectment is founded.
As the title vested in Allen McVey's heirs by the patent of 1842,
they could well convey the land unless the administrator's deed
stood in the way.
Galloway v.
Findley, 13 Pet. 264. That the special act of
assembly authorized the administrator to make a valid deed, and
divest the title of the heirs was decided in this case by the
Supreme Court of Arkansas, and which decision on the effect of the
state law is conclusive on this Court. We exercise jurisdiction to
revise errors committed by state courts, where the plaintiff in
error claims title by force of an act of Congress and the title has
been rejected on the ground that the act did not support it. And
this raises the question whether the act of 1826, allowing the
soldier to exchange his land, carried with it the prohibition
against alienation contained in the act of 1812.
The court below held that it did not, and that Allen McVey did
lawfully bind himself to Pelham for title.
It is insisted that the acts of 1812 and 1826 are on the same
subject, must stand together as one provision, and the last act
carry with it the prohibition found in the first. We are of the
opinion that the acts have no necessary connection; that there was
no good reason why the soldier who removed to Arkansas, and
inspected his tract of land, then patented, and alienable, should
not contract to convey the tract he might get in exchange. We can
only here say, as we did in the case of
French
v. Spencer, 21 How. 238, that the act of 1826 is
plain on its face and single in its purpose, and that in such cases
the rule is that where the legislature makes a plain provision
without making any exception, the courts of justice can make none,
as it would be legislating to do so.
There being no other question presented by the record within the
jurisdiction conferred on this Court by the 25th section of the
Judiciary Act, we order that judgment of the Supreme Court of
Arkansas be
Affirmed.