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
MR. JUSTICE MCLEAN delivered the opinion of the Court.
The complainants filed their bill in the Pulaski Circuit Court
of that state charging that Nathan Cloyes, their ancestor, during
his life, claimed a right of preemption under the Act of Congress
of 29 May, 1830, to the northwest fractional quarter of section
numbered two in township one north of range twelve west. That he
was in possession of the land claimed when the above act was
passed, and had occupied it in 1829. That he was entitled to enter,
by legal subdivisions, any number of acres, not more than one
hundred and sixty, or a quarter-section, to include his
improvement, upon paying the minimum price for said land. That
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 above
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, and on 20 May, 1831, Hartwell Boswell the
register, and John Redman, the receiver, decided that the said
Cloyes was entitled to the preemption right claimed.
That 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; also the
northeast
Page 50 U. S. 329
fractional quarter of the same section, containing forty-two
acres and thirty-two hundredths of an acre; and also the northwest
and northeast fractional quarters of section numbered one, in the
same township and range, containing thirty-five acres and forty-one
hundredths of an acre, the said fractional quarter-sections
containing one hundred and eight acres and sixty-one hundredths of
an acre, and offered to pay the United States, and tendered to the
receiver, the sum of one hundred and thirty-five dollars
seventy-six and a fourth cents, the government price for the land.
But the register refused to permit the said Cloyes to enter the
land, the receiver refused to receive payment for the same, on the
ground that he could only enter the quarter-section on which his
improvement was made. That the other quarter-sections were
contiguous to the one he occupied.
That under the Act of 29 June, 1832, entitled, "An act
establishing land districts in the Territory of Arkansas," the
above fractional sections of land were transferred to the Arkansas
Land District and the land office was located at Little Rock, to
which the papers in relation to this claim of preemption were
transmitted.
The bill further states that under an Act of Congress of 15
June, 1832, granting to the Territory of Arkansas one thousand
acres of land for the erection of a courthouse and jail at Little
Rock, and under "An act to authorize the governor of the territory
to sell the land granted for a courthouse and jail, and for other
purposes," dated 2 March, 1833, John Pope, then Governor of said
territory, among other lands, selected, illegally and by mistake,
for the benefit of the territory, the said northwest fractional
quarter of section numbered two, for which a patent was issued to
the governor of the territory and his successors in office, for the
purposes stated.
That the said John Pope, as governor, under an act 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 dated 2
March, 1831, and an act to authorize the governor of the territory
to select ten sections to build a legislative house for the
territory, approved 4 July, 1832, selected the northeast fractional
quarter of section two and the northwest fractional quarter and
northeast fractional quarter of section one as unappropriated lands
and, having assigned the same to William Russell a patent to him
was issued therefor, on or about 21 May, 1834, both of which, the
complainants allege, were issued in mistake and in violation of
law, and in fraud of the legal and vested right of their ancestor,
Cloyes.
That after the refusal of the receiver to receive payment
for
Page 50 U. S. 330
the land claimed, an act was approved 14 July, 1832, continuing
in force the Act of 29 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 said lands on the same conditions in every
respect as prescribed in said act within one year after the surveys
should be made and returned, and the occupants upon fractions in
like manner to enter the same so as not to exceed in quantity one
quarter-section. And that the act was in full force before Governor
Pope selected said lands as aforesaid. That the public surveys of
the above fractional quarter-sections were made and perfected on or
about 1 December, 1833, and returned to the land office the
beginning of the year 1834. On 5 March, 1834, the complainants paid
into the land office the sum of one hundred and thirty-five dollars
and seventy-six and one forth cents in full for the above-named
fractional quarter-sections. That a certificate was granted for the
same, on which the receiver endorsed, that the northwest fractional
quarter of section two was a part of the location made by Governor
Pope in selecting one thousand 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 that 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.
That the 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 rights of the
complainants.
The answer of the Real Estate Bank and trustees admits the proof
of the preemption claim of Cloyes, but they say
"From beginning to end, it is a tissue of fraud, falsehood, and
perjury, not only on the part of Cloyes, but also on the part of
those persons by whose oaths the alleged preemption was
established. And they allege, that the lots four, five, and six, in
block eight, in fractional quarter-section two, claimed by the
bank, were purchased of Ambrose H. Sevier in the most perfect good
faith, and without any notice or knowledge whatever, either
constructive or otherwise, of any adverse claim thereto."
That they have made improvements on the same which have cost
twenty-five thousand dollars without ever having it intimated
Page 50 U. S. 331
to them that there was any adverse claim, until all of said
improvements had been completed.
James S. Conway, in his answer, denies the validity of the
preemption right set up in the bill, and alleges that it was
falsely and fraudulently proved. And he says that when he
purchased,
"he did not know that there was any
bona fide adverse
claim or right to said lots, or any of them, and he avers that he
is an innocent purchaser for a valuable consideration, and without
actual or implied notice except as hereinafter stated."
And he admits that he occasionally heard the claim of Cloyes
spoken of, but always with the qualification that it was fraudulent
and void, and had been rejected by the government.
Samuel A. Hempstead, in his answer, denies that at the time of
the purchase of said lots or the recording of said deed, he had
notice either in fact or law of the complainants' claim.
The other defendants filed special demurrers to the bill. The
circuit court, as it appears, sustained the demurrers, and in
effect dismissed the bill. The cause was taken to the Supreme Court
of Arkansas by a writ of error which affirmed the decree of the
circuit court.
The demurrers admit the truth of the allegations of the bill,
and consequently rest on the invalidity of the right asserted by
the complainants. The answers also deny that Cloyes was entitled to
a preemptive right, and a part if not all of them allege that they
were innocent purchasers for a valuable consideration, without
notice of the complainants' claim.
The first section of the Act of 29 May, 1830, 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
Page 50 U. S. 332
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
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 the 30th of 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."
Under this instruction, on 28 May, 1831, the register and
receiver held that Nathan Cloyes was entitled to the northwest
fractional quarter, as stated in the bill, but rejected the
privilege of entering the adjoining fractions.
Several objections are made to this procedure. It is contended
that the land officers had no authority to act on the subject until
the surveys of the township were returned by the surveyor general
to the register's office, and also that in receiving the proof of
the preemption right of Cloyes, the land officers did not follow
the directions of the Commissioner.
The first instruction of the Commissioner, dated 10 June, 1830,
required the proof to be taken in presence of the register and
receiver, and it appears that the proof was taken in the presence
of the register only.
The law did not require the presence of the land officers when
the proof was taken, but, in the exercise of his discretion, the
Commissioner required the proof to be so taken. Having the power to
impose this regulation, the Commissioner had the power to dispense
with it for reasons which might be satisfactory to him. And it does
appear that the presence of the register only in Cloyes' case was
held sufficient. The right was sanctioned by both the land officers
and by the Commissioner
Page 50 U. S. 333
also, so far as to receive the money on the land claimed,
without objection as to the mode of taking the proof. And, as
regards the authority for this procedure by the land officers, it
appears to be covered by the above circular of the Commissioner
dated 7 February, 1831. In the absence of the surveys, the parties
entitled to the benefits of the act of 1830 were "permitted to file
the proof thereof," &c., identifying the tract of land, as well
as circumstances will admit, any time prior to 30 May, 1831.
The register and receiver were constituted by the act a tribunal
to determine the rights 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, and the decision cannot be impeached on the ground of
fraud or unfairness, it must be considered final. 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 the case 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. Under those acts, Cloyes was
only required to do what was necessary to perfect his right. But
those steps within the law which had been taken were not required
to be again taken.
It is well established principle that where an individual in the
prosecution of a right does everything which the law requires him
to do, and he fails to attain his right by the misconduct or
neglect of a public officer, the law will protect him. In this
case, the preemptive right of Cloyes having been proved, and an
offer to pay the money for the land claimed by him, under the act
of 1830, nothing more could be done by him, and nothing more could
be required of him under that act. And subsequently, when he paid
the money to the receiver under subsequent acts, the surveys being
returned, he could do nothing more than offer to enter the
fractions, which the register would not permit him to do. This
claim of preemption stands before us in a light not less favorable
than it would have stood if Cloyes or his representatives had been
permitted by the land officers to do what, in this respect, was
offered to be done.
The claim of a preemption is not that shadowy right which by
some it is considered to be. Until sanctioned by law, it has no
existence as a substantive right. But when covered by the law, it
becomes a legal right, subject to be defeated only by a failure to
perform the conditions annexed to it. It is founded in an
enlightened public policy, rendered necessary by the enterprise of
our citizens. The adventurous pioneer who is
Page 50 U. S. 334
found in advance of our settlements encounters many hardships
and not unfrequently dangers from savage incursions. He is
generally poor, and it is fit that his enterprise should be
rewarded by the privilege of purchasing the favorite spot selected
by him, not to exceed one hundred and sixty acres. That this is the
national feeling is shown by the course of legislation for many
years.
It is insisted that the preemption right of Cloyes extended to
the fractional quarter-sections named in the bill, the whole of
them being less than one hundred and sixty acres. We think it is
limited to the fractional quarter on which his improvement was
made. This construction was given to the act by the Commissioner in
his circular of 10 June, 1830. He says, "The occupant must be
confined to the entry of that particular quarter-section which
embraces the improvement." The act gives to the occupant whose
claim to a preemption is established the right to enter, at the
minimum price, by legal subdivisions, any number of acres not
exceeding one hundred and sixty. But less than a legal subdivision
of a section or fraction cannot be taken by the occupant. It is
contended, however, that several fractional quarter-sections
adjacent to the one on which the improvement was made may be taken
under the preemptive right, which shall not exceed in the whole one
hundred and sixty acres. And the second section of the Act of 14
July, 1832, which provides "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," it is urged, authorizes this
view. But in the case of
Brown's Lessee v.
Clements, 3 How. 666, this Court said the Act of 29
May, 1830,
"gave to every settler on the public lands the right of
preemption of one hundred and sixty acres; yet if a settler
happened to be seated on a fractional section containing less than
that quantity, there is no provision in the act by which he could
make up the deficiency out of the adjacent lands or any other
lands."
Did the location of Governor Pope under the act of Congress
affect the claim of Cloyes? On 15 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 30 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
Page 50 U. S. 335
be charged to him. In the case above cited from 3 Howard, the
Court said:
"The Act of 29 May, 1830, appropriated the quarter-section of
land in controversy, on which Etheridge was then settled, to his
claim, under the act for one year, subject, however, to be defeated
by his failure to comply with its provisions. During that time,
this quarter-section was not liable to any other claim,"
&c. And the supplement to this act approved 14 July, 1832,
extended its benefits. The instruction of the Commissioner, dated
September 14, 1830, was in accordance with this view. He says
"It is therefore to be expressly understood, that every purchase
of a tract of land at ordinary private sale to which a preemption
claim shall be proved and filed according to law at any time prior
to 30 May, 1831, is to be either null and void, the purchase money
thereof being refundable under instructions hereafter to be given,
or subject to any legislative provisions."
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.
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 is
Reversed and the cause is transmitted to that court 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 section
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.
MR. JUSTICE CATRON, MR. JUSTICE NELSON, and MR. JUSTICE GRIER
dissented.
Page 50 U. S. 664
MR. JUSTICE CATRON, dissenting.
The complainants allege that they have the superior equity to
the fractional quarter-section No. 2, and to the other lands
claimed by the bill, by virtue of an entry under a preference
right, and that the respondents purchased and took their legal
title with full knowledge of such existing equity in the
complainants.
1. The defendants claiming section No. 2 or part of it deny that
any such equity exists under the legislation of Congress. 2. That
they purchased and took title without any knowledge of the claim
set up, and being innocent purchasers, no equity exists as to them
for this reason also, regardless of anything alleged against them.
3. That they expended large sums on the lands purchased and made
highly valuable improvements thereon without any objection being
made by complainants or notice of their claim being given to
respondents, and therefore a court of equity cannot interfere with
their existing rights.
The bill was dismissed, without any particular ground's having
been stated in the decree why it was made for respondents, and in
this condition of the record the cause is brought here by writ of
error under the twenty-fifth section of the Judiciary Act.
The case made on the face of the bill was rejected, and the
inquiry on such general decree must be whether the claim set up
sought protection under an act of Congress or an authority
exercised under one, so as to draw either in question, no matter
whether the claim was well founded or not, and the fact being found
that such case was made, then jurisdiction must be assumed to
examine the decree, and this being clearly true in the present
instance, jurisdiction must be taken, and the equity claimed on
part of complainants reexamined.
If, however, the decree had proceeded on the second or third
grounds of defense, regardless of the first, and had so declared,
then this Court would not have jurisdiction to interfere, as no
Page 50 U. S. 665
act of Congress or an authority exercised under it would have
been drawn in question.
In regard to the lands claimed, except the fractional
quarter-section No. 2, we are agreed that the bill should be
dismissed. So far, the controversy is ended, and as to section No.
2, I think the bill should be dismissed also.
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 given under its authority, and
the proofs taken according to the instruction,
expired and came to an end on 29 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 14, 1832, than any other
villager in Little Rock.
July 14, 1832, another preemption law was passed providing,
among other things, that when an entry could not be made under the
act of 1830, because the public surveys were not returned to the
office of the register and receiver before the expiration of that
Act 29 May, 1831, then an occupant who cultivated the land in 1829,
and was in actual possession when the act of 1830 was passed,
should be allowed to enter under the act of 1832 the
quarter-section he occupied, and also adjoining lands to which the
improvement extended, in legal subdivisions, so as to increase his
entry to a quantity not exceeding 160 acres. Under the act of 1832,
the entry in controversy was offered and afterwards allowed for the
purpose of letting in complainants, so that a court of justice
might investigate their claim, although it had been pronounced
illegal at the Department of Public Lands, the officers there
acting under the advice of the Secretary of the Treasury.
The act of 1830 and the circular under it having expired, the
Commissioner issued a new circular 28 July, 1832, 2 Land Laws and
Opinions 509, prescribing to registers and receivers the terms on
which entries should be allowed under the act of 1832, by which
circular proof was required of cultivation in 1829, and residence
on 29 May, 1830, and that this proof should be made after the legal
surveys were returned to the office of the register and receiver,
and the right to make the proof and to enter should continue for
one year after the surveys were returned unless the lands were
sooner offered at public sale, and that then the entry should be
made before the public sale took place.
The necessity of this new proceeding is manifest. By the Act of
April 5, 1832, all actual settlers at this date (5 April,
Page 50 U. S. 666
1832) were authorized to enter, within six months thereafter,
one-half quarter-section, including their respective improvements.
Such rights stood in advance of claimants under the Act of July 14,
1832. In the mutations of a new country, the fact was well known
that improvements passed from hand to hand with great frequency by
sale of the possessions, and one in possession April 5, 1832, could
well enter an improvement cultivated in 1829, and held on 29 May,
1830, he having purchased such possession. If Cloyes, therefore,
had sold out to another before the Act of April 5 was passed, then
that other occupant, and not Cloyes, would have had the right to
enter section No. 2, and therefore it was highly necessary to know
who had the best right to a preemption at the time each entry was
offered. A still greater necessity existed for new proof. Until the
surveys were returned, it was usually improbable for the register
and receiver to know what subdivision had been occupied, or to what
land or how much the preemption right extended, and as all those
who had a right of entry on lands not surveyed and legally
recognized as surveyed were provided for by the Act of 14 July,
1832, and the act required them to make proof, and to enter, within
one year after the surveys were returned, by legal subdivisions
according to the surveys, it is hardly possible to conceive what
other course could have been adopted at the land office than that
which was pursued, as the surveys were the sole guide at the local
offices where entries were made. But it is useless to speculate why
the new circular was issued; the Commissioner had positive power to
do so, and the act, when done, bound every enterer. Nor could a
legal entry be made under the Act of 14 July, 1832, without the new
proof, and an adjudication by the register and receiver founded on
such proof, that the right of entry existed, and as no such proof
was offered by the complainants, they had no right to enter even
the 30 88/100 acres, and certainly not the 108 61/100 acres. That
an entry could not be lawfully made, without new proof to warrant
it, for the lesser quantity, is our unanimous opinion, and in this
we concur with those conducting the General Land Office.
For another reason I think their claim should be rejected.
Little Rock was the seat of the territorial government, at which
certain public buildings were necessary, and on 15 June, 1832, an
act was passed that there be then granted to the Territory of
Arkansas a quantity of land not exceeding one thousand acres, 11
contiguous to and adjoining the Town of Little Rock, for the
erection of a courthouse and jail in said town, which lands shall
be selected by the Governor
Page 50 U. S. 667
of the territory, and be disposed of as the legislature shall
direct, and the proceeds be applied towards building said
courthouse and jail.
On 30 January, 1833, the governor selected the land and filed
his entry in the land office at Little Rock, which entry was
received and forwarded to the General Land Office at Washington,
and there ratified. The entry included the fractional
quarter-section No. 2 now claimed by the heirs of Nathan
Cloyes.
By the Act of March 2, 1833, the governor of the territory was
required to furnish to the Secretary of the Treasury a description
of the boundaries of the thousand acres, and the secretary was
required to cause to be issued a patent therefor to the governor,
in trust &c. And the governor was directed to lay off in town
lots, as part of the Town of Little Rock, so much of the grant as
he might deem advisable, and said governor was authorized to sell
said lots and to dispose of the residue of said thousand-acre
grant, and which sale was to be at auction, as regarded the town
lots and the residue of the land. And he was also authorized to
select and lay off three suitable squares, within this addition to
the town, on which might be erected a statehouse, a courthouse, and
a jail, one square for each building, for the use thereof forever,
and for no other use.
The sales were to be for cash, and the governor was directed to
make deeds to purchasers when the purchase money was paid. A patent
issued to governor John Pope for the land. In October, 1833, he
proceeded to sell at auction, in lots and blocks, the fraction No.
2, in part, to Ambrose H. Sevier, under whom most of the defendants
on No. 2 claim. Those who have answered deny that they had any
knowledge of the claim of Cloyes when they purchased and took
title, and that complainants stood by, permitted the purchase, and
saw great city improvements made, and large sums of money expended
without objection or any intimation's being given that they
intended to bring forward any such claim as the one now set up.
But, as remarked in the outset, this Court has no jurisdiction of
these matters, and must therefore leave them to the state courts
for adjudication and final settlement.
How, then, did the claim of the complainants stand when the city
lots were sold in 1833? Cloyes never offered to enter fraction No.
2 alone; he offered to enter, says the bill 28 May, 1831, with the
register at Batesville, sectional quarter No. 2 for 30 88/100
acres, northeast fractional quarter for 42 32/100 acres, and
northwest and northeast fractional quarters of section No. 1,
containing 35 41/100 acres, making
Page 50 U. S. 668
in all 108 61/100 acres. The proof made was that he resided on
No. 2 for 30 88/100 acres. This entry was refused on a ground not
open to controversy. By the act of 1830, only that quarter-section
on which the improvement was could be entered, no matter what
quantity it contained. In this we are unanimous now, and also that
the entry allowed is void for all but the fraction No. 2. Here was
an offer to enter in 1831 that could not be lawfully done at that
time; then a refusal to receive the entry was proper. The claim to
enter 108 51/100 acres was adhered to throughout by Cloyes and his
heirs. The offer to enter the whole quantity of 108 61/100 acres
was again made in 1834, and we agree in opinion that the entry
could not be lawfully received at the latter period for this larger
quantity; less than the whole was never claimed.
As already stated, the entry that was admitted in 1834 was made
to enable the party to litigate his rights, if any existed, as
against the city title, not because the claim to enter was lawful
in the estimation of the Secretary of the Treasury and the
Commissioner of the General Land Office, for they had decided
against its validity. The offer to enter being illegal, and the
entry as received being illegal, it is not perceived on what ground
a court of equity can uphold the claim even in part, and thereby
overthrow a patent of the United States and oust purchasers who
relied on such patent.
In the next place, when the Act of June 15, 1832, was passed
authorizing the Governor of Arkansas Territory to locate the
thousand acres, the act of 1830 had expired; no right of entry
existed in Cloyes. The land appropriated to public use was to be
taken "contiguous to and adjoining the Town of Little Rock;" all
the land adjoining was reserved by the act, subject to a selection
by the governor as a public agent; the grant was a present grant of
the thousand acres, without limitation. Cloyes had no claim to
interpose at that time, and on the selection's being made, it gave
precision to the land granted, and the title attached from the date
of the act. In the language of this Court in
Rutherford
v. Greene's Heirs, 2 Wheat. 206, the grant which
issued to Governor Pope in pursuance of the Act of June 15, 1832,
"relates to the inception of his title." That also was a present
grant of 5,000 acres to General Greene made by an act of the
Legislature of North Carolina, but unlocated by the act of
assembly. It was granted in the military district generally, and
ordered to be surveyed by certain Commissioners. Soon afterwards it
was located by survey, and the question presented to this Court was
as to what time the title had relation for the land selected, when
it was held that the
Page 50 U. S. 669
grant was made by the act directly, and gave date to the title,
and of necessity overreached all intervening claims for the land
selected.
This case is far stronger than that. Here the act of 1830 was
made part of the Act of July 14, 1832; they stood as one act, and
took date on 14 July. The act provides
"That no entry or sale should be made under the provisions of
this act of lands
which shall have been reserved for the
use of the United States or either of the states."
The land, to the quantity of one thousand acres adjoining the
then Town of Little Rock, had been expressly reserved by the Act of
15 June, and stood so reserved when the Act of July 14 was passed,
subject to selection in legal subdivisions. The Act of June 15 had
no exception; the object was of too much importance to allow of
any. If this villager could claim a preemption, so might any other,
and the act of June would have been without value, as the whole
grant might have been defeated by occupant claims and the seat of
government transferred to private owners. This is manifest. Cloyes
was a tinner, carrying on his trade in the edge of the town and
next his dwelling; adjoining to his house and shop he cultivated a
garden, and on this occupancy and cultivation his claim was
founded. Others, no doubt, were similarly situated. The seat of
government was located on the public lands, then unsurveyed, and if
the act of July 14, 1832, conferred an equity on Cloyes to take 160
acres, so it did on others in his situation all around the then
town and adjoining thereto. If the occupant could take the land
adjoining, how was it possible for the governor to add lots and
squares to the seat of government? The intention of Congress
manifestly contemplated that the right of selection should extend
to all lands adjoining the then town, and that these were reserved
for public use is, in my judgment, hardly open to controversy on
the face of the Act of July 14. But when we take into consideration
the fact that General Greene's title had been upheld on the
principle that it took date with the act making the grant, and that
the grant made in trust to Governor Pope depended on the same
principle and equally overreached all intervening claims, no doubt,
it would seem, could well be entertained, either at the General
Land Office or by purchasers, that this occupant had no just claim
and could not interfere and overthrow titles derived under the Act
of June 15, 1832.
And this is deemed equally true for another and similar reason.
If this preference of entry for public use could be overthrown by a
subsequent preemption law, so may every other made to
Page 50 U. S. 670
secure locations for county seats and public works. The
reservation was quite as definite as where salt springs and lead
mines were reserved or lands on which ship timber existed. In such
cases, the President determines that the lands shall be reserved
from sale, and this is always done after the surveys are executed
and returned; and certainly, had such power been vested in him to
reserve lands adjoining the seat of government of Arkansas, for the
use thereof, he could have lawfully made the selection; and
authority to do so having been conferred by Congress on the
governor, his power was equal to that of the President in similar
cases, where lands are reserved for public use by general laws.
For these reasons, I think the decree ought to be affirmed, and
I have the more confidence in these views because they correspond
with the accumulated intelligence and experience of those engaged
in administering the Department of Public Lands and with the
practice pursued at the General Land Office from the date of the
Act of July 14, 1832, to this time.
Order
This cause came on to be heard on the transcript of the record
from the Supreme Court of the State of Arkansas and was argued by
counsel. On consideration whereof it is now here ordered, adjudged,
and decreed by this Court that the decree of the said supreme court
in this cause be and the same is hereby reversed with costs, and
that this cause be and the same is hereby remanded to the said
supreme court for further proceedings to be had therein in
conformity to the opinion of this Court.
