Where the decision of a state court was against the validity of
an entry of land which had been allowed by the proper officers of
the United States, this Court has jurisdiction, under the 25th
section of the Judiciary Act, to revise that judgment, whether the
invalidity was decreed upon a question of fact or of law.
The adjudication of the register and receiver is subject to
revision in the courts of justice on proof showing that the entry
was obtained by fraud and the imposition of false testimony on
those officers, as to settlement and cultivation. This Court has so
decided heretofore.
Over the questions raised in the court below of the effect of a
bona fide purchase and of the statute of limitations this
Court has no jurisdiction.
But the evidence shows that the entry was obtained by false
affidavits as to residence and cultivation. The judgment of the
Supreme Court of Arkansas is therefore affirmed.
This case was brought up from the Supreme Court of the State of
Arkansas by a writ of error issued under the 25th section of the
Judiciary Act. It was a chancery case, but correctly brought up by
writ of error.
See preceding case of
Verden v.
Coleman.
It was before this Court at a preceding term, and is reported in
50 U. S. 9 How.
314. It will be perceived by referring to that case that this Court
decided that the preemption act of 1830 conferred certain rights
upon settlers upon public lands upon proof of settlement or
improvement being made to the satisfaction
Page 63 U. S. 194
of the register and receiver, agreeably to the rules prescribed
by the Commissioner of the General Land Office. And their decision
must be considered final unless impeached on the ground of fraud or
unfairness.
50 U. S. 9 How.
333. The principal point now decided was that the entry then
recognized was obtained by false affidavits as to residence and
cultivation.
Page 63 U. S. 202
MR. JUSTICE CATRON delivered the opinion of the Court.
The first question presented on the record is whether this Court
has jurisdiction to examine and revise the decision of the Supreme
Court of Arkansas by writ of error under the 25th section of the
Judiciary Act. The question arises on the following facts:
Nathan Cloyes, ancestor of the principal complainants, entered
as an occupant, at a land office in Arkansas, a fractional quarter
section of land, in 1834, under the preemption acts of 1830 and
1832. The fraction adjoined the Village of Little Rock on its
eastern side, and was for twenty-nine acres. The same land had been
patented in 1833 by the United States to John Pope, Governor of the
Territory of Arkansas, to be appropriated to the erection of public
buildings for said territory. The heirs of Cloyes claimed to have
an earlier equity, by force of their preemption right, than that of
the Governor of Arkansas.
They filed their bill in equity in the proper state court to
enforce this equity. That bill contained appropriate allegations to
exhibit an equitable title in the plaintiffs, and the opposing
right of the patentee, and thus to enable the courts to compare
them. Some of the defendants demurred to the bill; others answered,
denying the facts of the settlement and cultivation and pleading
the
bona fides of their purchase and the statute of
limitations.
The courts of Arkansas dismissed the bill on the demurrer, which
judgment was reversed in this Court, and the cause remanded for
further proceedings.
Lytle v.
Arkansas, 9 How. 314. It was prepared for hearing a
second time, and the courts of Arkansas have again dismissed the
bill, and the cause is a second time before us.
The cause was fully heard on its merits below, and the claim of
Cloyes rejected on the ground that he obtained his entry by fraud
in fact and fraud in law, and the question is can we take
jurisdiction and reform this general decree? It
Page 63 U. S. 203
rejected the title of Cloyes, and in our opinion it is
not material whether the invalidity of the title was decreed in the
Supreme Court of Arkansas upon a question of fact or of law. The
fact that the title was rejected in that court authorizes this
Court to reexamine the decree.
39 U. S. 14
Pet. 360.
The decision in the Supreme Court of Arkansas drew in question
an authority exercised under the United States, to-wit, that of
admitting Cloyes to make his entry, and the decision was against
its validity, and overthrew his title, and is therefore subject to
be reexamined and reversed or affirmed in this Court on all the
pleadings and proofs which immediately respect the question of the
proper exercise of authority by the officers administering the sale
of the public lands on the part of the United States.
In the case of
Martin v. Hunter's
Lessee, 1 Wheat. 352, the foregoing construction of
the 25th section of the Judiciary Act of 1789 was recognized, and
has been followed since, in the cases of
Choteau v.
Eckhart, 2 How. 372,
Cunningham v.
Ashley, 14 How. 377,
Garland v.
Wynn, 20 How. 6, and other cases.
Another preliminary question is presented on this record, namely
whether the
adjudication of the register and receiver,
which authorized Cloyes' heirs to enter the land, is subject to
revision in the courts of justice on proof showing that the entry
was obtained by fraud and the imposition of false testimony on
those officers as to settlement and cultivation. We deem this
question too well settled in the affirmative for discussion. It was
so treated in the case of
Cunningham v.
Ashley, 14 How. 377; again in
Bernard v.
Ashley, 18 How. 43; and conclusively in the case of
Garland v. Wynn,
20 How. 8
The next question is how far we can reexamine the proceedings in
the state courts.
In their answers, the respondents rely on the act of limitations
of the State of Arkansas for protection. As this is a defense
having no connection with the title of Cloyes, this Court cannot
revise the decree below in this respect under the 25th section of
the Judiciary Act.
Page 63 U. S. 204
Many of the defendants also relied in their answers on the fact
that they were
bona fide purchasers of the lots of land
they are sued for, and therefore no decree can be made here to oust
them of their possessions. The state courts found that a number of
the respondents were purchasers without notice of Cloyes' claim,
and entitled to protection as
bona fide purchasers,
according to the rules acted on by courts of equity. With this
portion of the decree we have no power to interfere, as the defense
set up is within the restriction found in the concluding part of
the 25th section, which declares
"That no other error shall be assigned or regarded by this Court
as a ground of reversal than such as immediately respects the
before-mentioned questions of validity or construction of the
Constitution, treaties, statutes, commissions, or authorities, in
dispute."
Mr. Justice Story comments on the foregoing restraining clause
in the case of
Martin v. Hunter's
Lessee, 1 Wheat. 358, which construction we need
not repeat.
Whether Cloyes imposed on the register and receiver by false
affidavits, when he made proof of cultivation in 1829, and
residence on the land in dispute on the 29th of May, 1830, is the
remaining question to be examined. He made oath 23d April, 1831,
that he did live on said tract of land in the year 1829 and had
done so since the year 1826. Being interrogated by the register, he
stated:
"I had a vegetable garden, perhaps to the extent of an acre, and
raised vegetables of different kinds, and corn for roasting ears,
and I lived in a comfortable dwelling, east of the Quapaw line on
the before-mentioned fraction."
Being asked did you continue to reside, and cultivate your
garden aforesaid on the before-named fraction until the 29th of
May, 1830? he answers: "I did; and have continued to do so until
this time."
John Saylor deposed on behalf of Cloyes in effect to the same
facts, but in general terms. Nathan W. Maynor and Elliott Bursey
swore that the affidavit of Saylor was true. On the truth or
falsehood of these depositions the cause depends.
In opposition to these affidavits, it is proved beyond dispute
that Cloyes and his family resided at a house for a part of the
Page 63 U. S. 205
year 1828 occupied afterwards by Doctor Liser. In the latter
part of 1828, they removed from that place to some log cabins
situate on the lots afterwards occupied by John Hutt, and where the
Governor of Arkansas resided in 1851, when the witnesses deposed.
Both places were west of the Quapaw line -- the cabins standing
probably one hundred yards west of the line, and which line was the
western boundary of the fractional quarter section in dispute.
Cloyes resided at these cabins when he swore at Batesville, before
the register, and continued to reside there till the time of his
death, which occurred shortly after his return from Batesville, say
in May or June, 1831, and his widow and children continued to
reside at the same cabins for several years after his death.
Cloyes was by trade a tinner, and in December, 1826, rented of
William Russell a small house, constructed of slabs set upright, in
which he carried on his business of a tin plate worker. He
covenanted to keep and retain possession for Russell of this shop
against all persons, and not to leave the house unoccupied, and to
pay Russell two dollars per month rent, and surrender the house to
Russell or his authorized agent at any time required by the
lessor.
Under this lease, Cloyes occupied the house until the 19th day
of June, 1828, when he took a lease from Chester Ashley for the
same, and also for a garden. He covenanted to pay Ashley one dollar
per month rent; to put and keep the building in repair; to keep and
retain possession of the same, until delivered back to said Ashley
by mutual consent, either party having a right to terminate the
lease on one month's notice. The house and garden were rented by
the month.
Under this lease, Cloyes occupied the house as a tin shop to the
time of his death. Both the leases state that the shop was east of
the Quapaw line, and on the public lands.
This slab tenement was built by Moses Austin about 1820. On
leaving Little Rock, he sold it to Doctor Mathew Cunningham; it
passed through several hands till it was finally owned by Col.
Ashley. Buildings and cultivated portions of the public lands were
protected by the local laws of the Arkansas Territory; either
ejectment or trespass could have
Page 63 U. S. 206
been maintained by Ashley against Cloyes to recover the
premises, nor could an objection be raised by anyone except the
United States to these transfers of possession -- neither could
Cloyes be heard to disavow his landlord's title. He held possession
for Ashley, and was subject to be turned out on a month's notice to
quit.
Cunningham and other witnesses depose that the shop rented to
Cloyes stood west of the Quapaw line. It however appears from
actual survey that it was on the section line, which ran through
the house, taking its southeast corner on the east side but leaving
the greater part of the shop west of the line.
Another pertinent circumstance is that when Cloyes heard the
preemption law of 1830 was about to pass or had passed -- it is
uncertain which from the evidence -- he removed his wife and
children, with some articles of necessary furniture, to the
tinner's shop from his residence at the Hutt place and kept his
family at the shop for a few months, and then they returned to
their established home. This contrivance was probably resorted to
at the instance of Benjamin Desha, who had agreed with Cloyes to
pay into the land office the purchase money and all incidental
expenses to obtain a title from the government for an interest of
one-half of the land. These evasions were mere attempts to defraud
the law and to furnish some foundation for the necessary affidavits
to support his preemption claim at the land office.
On this aspect of the case, the question arises whether Cloyes'
possession as lessee and tenant of Ashley, occupying a shop as a
mechanic, the corner of which accidentally obtruded over the
section line, upon the public land, and who was subject to removal
by his landlord each month, was "a settlement" on the public lands
within the true intent and meaning of the act of May, 1830?
That Cloyes never contemplated seeking a home on the public
lands as a cultivator of the soil is manifest from the proof; he
worked at his trade, when he worked at all, say the witnesses, and
followed no other avocation. Our opinion is that the affidavits on
which the occupant entry was founded
Page 63 U. S. 207
were untrue in fact and a fraud on the register and receiver,
and that Cloyes had no
bona fide possession as tenant of
the tinner's shop within the true meaning of the act of 1830.
We are also of opinion that the affidavits are disproved as
respects the fact of cultivation in 1829. There was no garden
cultivated in that year adjoining or near to the shop. To say the
least, it is quite doubtful whether there was such cultivation east
of the Quapaw line; and the state courts, having found that there
was none, it is our duty to abide by their finding, unless we could
ascertain, from the proof, that they were mistaken, which we cannot
do; our impressions being to the contrary.
The question of cultivation in May, 1830, depended on parol
evidence of witnesses. The judges below knew them; they decided on
the spot, with all the localities before them, and as the evidence
is contradictory, it would be contrary to precedent for this Court
to overrule the finding of a mere fact by the courts below.
On the several grounds stated, we order that the decree of the
Supreme Court of Arkansas be affirmed, with costs.
MR. JUSTICE McLEAN and MR. JUSTICE CLIFFORD dissented.
MR. JUSTICE McLEAN:
I dissent from the opinion of the Court, as now expressed, and
shall refer to the former opinion, to show the nature of the
case:
"After the refusal of the receiver to receive payment for the
land claimed, an act was passed, 14 July, 1832, continuing the Act
of the 29th May, 1830, and which specially provided that those who
had not been enabled to enter the land, the preemption right of
which they claimed, within the time limited, in consequence of the
public surveys not having been made and returned, should have the
right to enter such lands, on the same conditions in every respect
as prescribed in said act, within one year after the surveys shall
be made and returned.
Page 63 U. S. 208
And this act was in full force before Governor Pope selected
said lands. That the public surveys of the above fractional
sections were made and perfected on or about the 1st of December,
1833, and returned to the land office the beginning of the year
1834. On the 5th of March, 1834, the complainant paid into the land
office the sum of $135.76 1/4, in full for the above-named quarter
section."
That a certificate was granted for the same,
"on which the receiver endorsed, that the northwest fractional
quarter section two was a part of the location made by Governor
Pope in selecting 1,000 acres, adjoining the town of Little Rock,
granted by Congress to raise a fund for building a courthouse and
jail for the territory; and that the endorsement was made by
direction of the Commissioner of the General Land Office. . . .
That the register of the land office would not permit the said
fractional quarter sections to be entered."
It appeared that
"he patentees in both of said patents, at the time of their
application to enter the lands, had both constructive and actual
notice of the right of Cloyes and that the present owners of any
part of these lands had also notice of the right of the
complainants."
In his dissenting opinion, Judge Catron says:
"The proof of occupancy and cultivation was made in April, 1831,
under the act of 1830, pursuant to an instruction from the
Commissioner of the General Land Office having reference to that
act. The act itself, the instruction under its authority, and the
proofs taken according to the instruction, expired and came to an
end on the 29th May, 1831. After that time, the matter stood as if
neither had ever existed; nor had Cloyes more claim to enter from
May 29, 1831, to July, 1832, than any other villager in Little
Rock."
Now although it may be true that until the act of 1832 had
passed, the act of 1830 having expired, the preemptive right of
Cloyes could not be perfected, yet the policy of the law was, where
vested rights had accrued, which, by reason of delays in the
completion of surveys, could not be carried out, the government
gave relief by extending the law. And the inchoate right was
secured by the policy of the government. It
Page 63 U. S. 209
is therefore not strictly accurate to say the party entering a
preemption has no right. He has a right, recognized by the
government, by which he is enabled to perfect his right, and under
such circumstances, no new entry could interfere with a prior one,
though imperfect.
This Court says, the proof of the preemption right of Cloyes
being entirely satisfactory to the land officers under the act of
1830, there was no necessity of opening and receiving additional
proof under any of the subsequent laws. The act of 1830 having
expired, all rights under it were saved by the subsequent acts. No
steps which had been taken were required again to be taken.
Did the location of Governor Pope under the act of Congress
affect the claim of Cloyes? On the 15th of June, 1832, one thousand
acres of land were granted, adjoining the town of Little Rock, to
the Territory of Arkansas, to be located by the governor. This
selection was not made until the 30th of January, 1833. Before the
grant was made by Congress of this tract, the right of Cloyes to a
preemption had not only accrued, under the provisions of the act of
1830, but he had proved his right under the law to the satisfaction
of the register and receiver of the land office. He had, in fact,
done everything he could do to perfect this right. No fault or
negligence can be charged to him.
"By the grant to Arkansas, Congress could not have intended to
impair vested rights. The grants of the thousand acres and of the
other tracts must be so construed as not to interfere with the
preemption of Cloyes."
From the citations above made in the original opinion in this
case, the following facts and principles of law are too clear to
admit of doubt by anyone:
1. That Cloyes' preemption to fractional quarter section No. 2
was clearly established by the judgment of the land officers and of
this Court.
2. That the location of Governor Pope, being subsequent to the
right of Cloyes, could not affect, under the circumstances, that
right, and that the conveyance was subject to it. This appears by
the certificate of the land office, by the uniform
Page 63 U. S. 210
action of the government in all such cases, and the good faith
which has characterized the action of government, in protecting
preemption rights, by giving time to protect such right, where the
government officers had failed in doing their duty. And in addition
to these considerations, in the solemn declaration of this Court,
"that Congress could not have intended to impair vested rights."
And the Court says "the grants of the thousand acres and of the
other tracts must be so construed as not to interfere with the
preemption of Cloyes."
This Court says
"The supreme court of the state, in sustaining the demurrers and
dismissing the bill, decided against the preemption right claimed
by the representatives of Cloyes, and as we consider
that
a valid right as to the fractional quarter on which his improvement
was made, the judgment of the state court was reversed."
"Now the defendants demurred to the original bill, which they
had a right to do, and rest the case on the demurrer's appearing on
the face of the bill. But this Court held Cloyes' right valid, and
consequently reversed, on this head, the judgment of the state
court. And the cause is transmitted to the state court for further
proceeding before it, or as it shall direct on the defense set up
in the answers of the defendants,
that they are bona fide
purchasers of the whole or parts of the fractional section in
controversy, without notice, and that that court give leave to
amend the pleadings on both sides, if requested, that the merits
may be fully presented and proved, as equity shall require."
Now it is perfectly clear that nothing was transmitted under the
direction of this Court to the state court except the latter part
of the sentence beginning
"and the cause is transmitted to that
court," &c. And that part relates wholly to the inquiry
whether the defendants were
bona fide purchasers of the
whole or parts of the fractional section in controversy. And for
this purpose leave was given to amend the pleadings. If there is
anything in this bill which afforded any pretense to the state
court to open the pleadings and examine any matters in the bill
except those specified in its close, it has escaped my notice.
Page 63 U. S. 211
It is said in the bill,
"The register and receiver were constituted by the act a
tribunal to determine the right of those who claimed preemptions
under it. From their decision no appeal was given. If, therefore,
they acted within their powers, as sanctioned by the commissioner
and within the law, the decision cannot be impeached on the ground
of fraud or unfairness; it must be considered final."
The court here was speaking of its own powers of jurisdiction
and investigation, and not the powers of any other tribunal. It was
supposed that no superior court would willingly permit its judicial
powers to be subverted, new parties made, new subjects introduced,
and the whole proceedings reversed at the will of an inferior
jurisdiction, without the exercise of a controlling power.
This state record of Arkansas seems to have been a prolific
source of controversy, as its proportions have grown to about a
thousand pages, not including briefs and statements of facts. It
certainly must require some skill in legislation to draw into the
state court so large an amount of business under the laws of
Congress. And it may become a matter of public concern when such a
mass of judicial action is not only thrown into the state court,
but new rules and principles of action are liable to be sanctioned,
in disregard of the laws of the United States.
Without any authority, it does appear that the judgment of the
Supreme Court has been reversed by the Arkansas court, its
proceedings modified in disregard of its own judgments and opinions
clearly expressed, and new rules of proceedings instituted and
carried out, and this under an authority given to the Arkansas
court to ascertain whether certain purchases had been made
bona
fide.
Cloyes, in his lifetime, by his own affidavit and the affidavits
of others, made proof of his settlement on and improvement of the
above fractional quarter according to the provisions of the act, to
the satisfaction of the register and receiver of said land
district, agreeably to the rules prescribed by the Commissioner of
the General Land Office; on the 20th May, 1831, Hartwell Boswell
the register, and John Redman, the
Page 63 U. S. 212
receiver, decided that the said Cloyes was entitled to the
preemption right claimed.
"On the same day, he applied to the register to enter the
northwest fractional quarter of section two, containing thirty
acres and eighty-eight hundredths of an acre."
But the register very properly decided that Cloyes could only be
permitted to enter the fraction on which his improvement was
made.
The Commissioner of the General Land Office and the register and
receiver declare they were satisfied with the proof made in the
case, but the Supreme Court of Arkansas decided against the
preemption right claimed by the representatives of Cloyes, and the
Supreme Court of the United States said, "as we consider
that a valid right as to the fractional quarter on which
the improvement was made, the judgment of the state court is
reversed."
How does this case now stand? It stands reversed upon our own
records by the Supreme Court of Arkansas, and by no other power. A
majority of this bench entered the judgment, as it now stands, in
1849. But through the reforming process of a record of a thousand
pages, not including notes and statements of facts, it has become a
formidable pile -- enough to fill with despair the first claimant
of the preemption right.
It is true the cause was sent down for a special purpose, every
word of which I now copy:
"And the cause is transmitted to that court the Supreme Court of
Arkansas for further proceedings before it, or as it shall direct,
on the defense set up in the answers of the defendants, that they
are
bona fide purchasers of the whole or parts of the
fractional sections in controversy,
without notice, and
that that court give leave to amend the pleadings on both sides, if
requested,
that the merits of the case may be fully
presented and proved, as equity shall require."
Several of the defendants alleged they were
bona fide
purchasers of a part or the whole of the fraction without notice,
and the object in sending the case down was to enable persons to
show they were purchasers of this character. This did not
necessarily involve fraud. And this embraces the whole subject of
inquiry.
Page 63 U. S. 213
It would have been inconsistent for this Court to say we
consider the preemption claim by the representatives of Cloyes as a
valid right as to the fractional quarter on which his improvement
was made, and on that ground to reverse the judgment of the state
court and at the same time send the case down, open to the charge
of fraud and every conceivable enormity. The object was to know who
were purchasers without notice. That this was the intention of the
supreme court is palpable from the language of the entry.
The majority of the Supreme Court had full confidence in the
validity of Cloyes' claim, and consequently they reversed the
judgment of the state court, leaving the question open, whether the
defendants were purchasers without notice. It may be that this
entry would have protected all the purchasers.
From the nature of preemption rights, it is presumed a person
desirous of such a right is the first applicant. And the proof of
such a right, if sustained by the register and receiver and the
Commissioner of the Land Office, the proof required, is deemed
satisfactory. It is only where a fortunate selection appears to be
made by the prospect of a city, or some great local advantage is
anticipated that a contest arises as to such a claim.
The officers of the land department, whose peculiar duty it was
to protect the public rights, seemed to have discharged their duty
to the satisfaction of the government. This was also entirely
satisfactory to a majority of the judges of this Court, with the
single exception that from the answers it was probable that there
may have been purchasers of this right without notice. And from the
evidence introduced it would seem to have been considered that
anyone who at any time desired to purchase considered himself as
having a right to complain, although he had no means to make the
purchase or had no desire to make it.
If I mistake not, evidence was heard from witnesses from twenty
to twenty-five years after the preemption right was sanctioned by
the government. Such a course tends greatly to embarrass land
titles under the general land law. Everyone knows that a man who
endeavors to obtain a preemption
Page 63 U. S. 214
must, in the nature of things, be a man of limited means and
incapable of maintaining an expensive suit at law, and it has
always appeared to me the true policy to limit those questions to
the land department of the government. At all events, that they
should be limited to the federal tribunals, where, it may be
presumed, the land department will have an uniform
administration.
As this case now stands, I think the judgment of the Arkansas
Supreme Court must be reversed on two grounds:
1. Because it has reversed the judgment of this Court, entered
by a majority of the members at December term, 1849, in these
words:
"The supreme court of the state, in sustaining the demurrers and
dismissing the bill, decided against the preemption claimed by the
representatives of Cloyes, and as we consider
that a valid
right as to the fractional quarter on which his improvement was
made, the judgment of the state court is reversed."
This is the judgment of this Court as it now stands upon our
docket. And
2. The judgment of the state court must be reversed because it
wholly disregarded the directions of this Court in trying the
issues transmitted to it.