Lytle v. Arkansas (50 U.S. 314)

Statement of the case
T case was brought up from the Supreme Court of the State of Arkansas, by a writ of error issued under the twenty-fifth section of the Judiciary Act.

It 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 the 29th of May, 1830 (4 Stat. at Large, 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 the 10th of 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 [p316] 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 7th February, 1831, was issued, instructing the land officers, where persons claiming preëmption 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 preëmption," &c. "No payments, however, were to be received on account of preëmption 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 the 1st of December, 1833, nor returned to the land office until the beginning of the year 1834.

On the 2d of March, 1831, Congress passed an act (4 Stat. at Large, 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 the 23d of April, 1831, Cloyes filed the following affidavit in the office of the register, in support of his claim to a preëmption right.

"Nathan Cloyes's testimony, taken on the 23d of 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 preëmption upon?

"Answer. On the N.W. fract. ¼ 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 Rock, and contains about twenty-eight [p317] 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 the 29th of 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 preëmption, 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 preëmption right upon the fraction whereon you live?

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

"N C.

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

"J. B, J. P."

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

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

"Nathan Cloyes, No. 24, N. W. fractional ¼ 2, 1 N. 12 W. granted for the above fractional ¼, and reject the privilege of entering the adjoining fractions. May 28, 1831.

"H. B, Register.

J R, Receiver."

[p318] On the 15th of June, 1832, Congress passed an act (4 Stat. at Large, 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 court-house and jail at Little Rock.

On the 4th of July, 1832, Congress passed another act (4 Stat. at Large, 563), authorizing the Governor of the Territory to select ten sections of land to build a legislative house for the Territory.

On the 14th of July, 1832, Congress passed an act (4 Stat. at Large, 603), giving to persons entitled to preëmption 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 the 2d of March, 1833, Congress passed an act (4 Stat. at Large, 661) authorizing the Governor of the Territory to sell the lands granted by the act of 15th June, 1832.

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

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

On the 5th of 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 ¼ 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.

"$135.76¼.

"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 [p319] acres adjoining the town of Little Rock, granted by Congress to raise a fund for building a court-house and jail for the Territory of Arkansas; and this indorsement 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 preëmption 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 preëmption to it. They admit also, that Governor Pope selected said quarter in pursuance of the two acts of Congress of 15th June, 1832, and 2d 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.

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

Argument for plaintiffs 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 the 28th of May, 1831, if the township plat had at that time been in the land office?
 * 2) Did the act of 15th 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 14th July, 1832, reserve this fraction from selection, location, and sale, until the expira- [p320] tion 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's testimony, taken on 23d 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's right of preëmption. 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 et al. v. Patterson, 9 Pet. 663; 1 Cooke, (Tenn.) 492; 3 Yerger, 309; 2 Tennessee, 154, 284, 306, 421. It does appear that both the register and receiver, on the same day (23d April, 1831), admitted Cloyes's 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 preëmption. 3 Johns. Ch. 275; 2 Cond. Rep. 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 incon- [p321] venience, was never fully carried out in fact, and was finally rescinded by the circular of 22d July, 1834 (2 Land Laws, 589).

The decision of the register and receiver was in favor of Cloyes's 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's right of preëmption, 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 preëmption law of 1830.

2. The act of 15th June, 1832, (which was passed after the act of 20th 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. 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 the 30th of January, 1833.

3. Prior to this selection, the act of 14th July, 1832, was passed, giving to persons entitled to preëmption under the act of 29th 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 [p322] of section two could not be legally selected by the Governor, in 1833, because Cloyes had a right of preëmption to it under the act of 29th 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 14th 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's 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 any thing beyond the fractional quarter on which he was settled.

The act of 29th May, 1830, does not restrict the right of preëmption 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 14th 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- [p323] section; 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 7th May, 1833.

Argument for defendants in error
Mr. Sebastian, for the defendants in error, contended, –

First, That the proof of preëmption was not taken in the presence of the register and receiver, agreeably to the rules prescribed by the Commissioner of the Land Office. The authority conferred upon them was joint, not only in taking the testimony, but in deciding on the sufficiency of the proof. Proof made to one was not a compliance with the law. 5 How. (Miss.) 752; 13 Peters, 511; 1 Peters, 340; Attorney-General's Opinion, in 2 Land Laws, 85, 98.

But it is said, that it does not positively appear that the receiver was not present, and the presumption of law is, that every government officer does his duty until the contrary appears. The rule is well stated, but admits of exceptions. It is a mere rule of evidence, to supply proof of relevant facts where the contrary does not appear. The silence of the proof upon this subject would have left the presumption to operate to its fullest extent in favor of the legality of the proceedings, but it went further, and disclosed the fact that the proof was taken before the register alone. Conclusio unius exclusio alterius, is a rule of construction that may well apply in this instance. It is not easy to see how the absence of the receiver could be better stated than in the terms which affirmed the presence of the register.

Again, it is contended that the land office circular requiring proof to be taken in the presence of the register and receiver was directory to the officers as to the manner of taking the proof, and that any irregularity upon the part of the officers cannot prejudice the right of preëmption.

It is undoubtedly true, that where the State intrusts a duty to a public officer, and prescribes a particular manner in which he shall perform it, an irregularity in the manner of its performance shall not prejudice the right appearining to the act of performance. The rule extracted from the cases seems to admit of many exceptions. It applies to the acts of ministerial officers, and not to those who act in a judicial capacity; to those who act irregularly within the limits of authority, but [p324] not where there is a total want of it (see Wilcox v. Jackson, 13 Peters; 2 Tenn. 154); to those who act as a public and common agent, independent of or as a trustee of the parties, but not where the act is controlled or to be done by the party himself. 2 Tenn. 284. Now here the register and receiver acted in a judicial capacity. (Wilcox v. Jackson, and Opinion of Attorney-General, above cited.) The act of May 29th, 1830, § 4, makes it the duty of the settler to make the proof, and the circular from the land office prescribes how and before whom he shall make it. The true question, therefore, in this case is, not whether a ministerial duty has been imperfectly performed, but whether a judicial function has not been performed without any authority at all. The only adjudged case upon the direct point has taken this view of the question. Fulton v. McAfee, 5 How. (Miss.), above cited.

The supposition that the letter from the Treasury Department (2 Land Laws, 572), by authorizing the receiver to take payment from Cloyes, suspended pro hac vice the general regulation as to proof, is unfounded in the terms of that letter. It was done expressly, not to waive any objection, but "to enable them the more effectually to maintain their rights before the judicial tribunals, without prejudice to an adjudication of the land office." It decided in favor of Governor Pope's locations, and left Cloyes's claim just where it found it. Had it been so intended, it was then too late to remove the defect and cut out the intervening rights under the location of Governor Pope. The general regulation was not repealed until July 22, 1834, and until all the rights in controversy had been fixed under the old law.

If the proof of preëmption should be considered regular, and in compliance with the act, and the authoritative instructions issued in conformity with it, then it is contended that the northwest fractional quarter of section two, a part of the lands sued for, was specifically appropriated by the act of Congress of 15th June, 1832 (4 Stat. at Large, 531), granting one thousand acres of land to the Territory of Arkansas, "contiguous to and adjoining the town of Little Rock"; so that when the act of 14th July, 1832 (4 Stat. at Large, 603), extending and reviving that of 29th May, 1830, was passed, there was nothing on which the act could operate. When the supplemental act was passed, the tract on which the preëmption had once been granted and lapsed was no longer unappropriated land. The original act, thus revived, extended the right of preëmption to unappropriated lands only. The land granted by the act of 15th June to the Territory could not, on the 14th of July fol- [p325] lowing, be considered unappropriated. Upon this point the instructions from the General Land Office of 10th June, 1830, were explicit. (2 Land Laws, 539.) In these it is said, "that all lands not otherwise appropriated, of which the township plats are or may be on file in the register's office, prior to the expiration of the law, are subject to entry." The peremption act of 1830 expired by its own limitation on the 29th of May, 1831, and before it was revived, July 14, 1832, the act of 15th June granted the tract of land to the Territory. The proof of preëmption describes the tract cultivated as being immediately below Little Rock, and the act of 15th June, 1832, above mentioned, grants to the Territory of Arkansas "a quantity of land not exceeding one thousand acres, contiguous to and adjoining the town of Little Rock." By this act the United States was concluded. It was not executory, but passed a present interest, and executed itself. It was not a general grant, but specific, and conveyed, not a mere right at large to locate, but certain lands, and although it did not pretend to fix the exterior limits or boundaries, yet one feature was well defined, most important in its operation in this case. The land was "contiguous to and adjoining the town of Little Rock." However indefinite in some features, its terms of description embraced the very tract on which the ancestor of complainants had claimed a preëmption. This grant was a contract, and constituted a lien upon the lands coming within its descriptive terms. Pinson and Harkins v. Ivey, 1 Yerg. 322; 2 Vern. 482; 1 P. Wms. 429; 2 Vern. 97; 1 Eq. Cas. Abr. 31, ch. 4, and 87, ch. 6.

It was, if not a grant, at least a reservation of all those lands "adjoining and contiguous to the town of Little Rock," for the satisfaction of the grant, and, to that extent and for that purpose, was an appropriation by law. It was an exemption of such lands from the operation of all subsequent laws, until its objects could be satisfied and the act have effect. When the land should be selected, the title would legitimately relate to the date of the act, which is the source of the title. This relation, however, is unnecessary to overreach the title of complainants, as the selection of the lands was long prior to the application of Cloyes's heirs to enter them, in March, 1834, under the act of 14th July, 1832. Not only so, but on the 2d of March, 1833, after the location or selection by Governor Pope, an act was passed authorizing him to sell the lands thus selected, of which the northwest fractional quarter of section two was a part. See 4 Stat. at Large, 661.

This brings us to the consideration of the question as to the competency of the United States to thus appropriate the land [p326] in controversy, (as they most unquestionably did by the acts referred to,) and the nature of the interest in the public domain acquired by settlers upon it.

(The counsel then proceeded to argue, that the preëmption law was not a grant, but merely a bounty which the United States may at any time before final acceptance of its terms and performance of its conditions wholly modify, destroy, or restrict. 2 Land Laws, 101, 102; 9 Cranch, 92; 1 Scam. 367; 3 Pet. C. C. 40; 5 Martin, N.S. 417; 6 Martin, 342; 9 La. Rep. 53; 5 How. Miss. 765; 13 Pet. 514.)

But, waiving the question whether the act of June, 1832, was a great, or even a positive reservation, I recur again to the argument, that this act was at least an appropriation. That is all that is necessary to sustain the title of the defendants. It is sufficient alone that the act of 15th June, 1832, was a "setting apart" of a portion of the public domain for any purpose. This is but an indication by the government, through some one of its departments, of its intention to devote it to some particular purpose. The title still remains in the United States, and the land thus indicated is withheld from all subsequent laws. Whether as a grant the act was specific or general, whether it passed a present or future interest, commencing upon the "selection," cannot alter its operation as an appropriation. It can be an appropriation of all lands within its descriptive terms, without being a grant of them. The donation was for one thousand acres, "contiguous to and adjoining the town of Little Rock." The appropriation was therefore coextensive, not with the boundaries that might be ascertained by the selection under the act, but it was as broad as the description of the lands out of which the selection was to be made. This will be fully comprehended by observing the clear distinction between the tract selected and the body of lands out of which the selection was authorized to be made. The appropriation was temporary, and for a particular purpose. Still, it was to this extent an appropriation. But this act the lands were "set apart," and severed from the public domain, until the purposes of that act could be satisfied. Doubtless it is true, that, when the objects of the appropriation were accomplished, the lands held from disposition by its force would relapse into the mass of unappropriated land. But in this case, the appropriation of this tract, amongst others embraced in this description of the law, held it until it was selected, and the selection held it for ever.

Again, when the act of 14th July, 1832, was passed, the lands claimed by the complainants were not surveyed, nor [p327] any plats on file in the register's office at the time of the expiration of the act of 1830. The bill states the surveys to have been made, and the plats thereof to have been returned, in December, 1833, and January, 1834. To such lands the act of 1830 did not extend the right of preëmption. On this point the circular letter of instruction from the General Land Office, of June 10th, 1830 (2 Land Laws, 540), is explicit: – "Lands not otherwise appropriated, of which the township plats are or may be on file in the register's office prior to the expiration of the law (29th May, 1831), are subject to entry under the act." These instructions are in precise conformity with the act, and should be considered as a part of it. The whole tenor of the act shows that it never contemplated the possibility of a preëmption on any other than surveyed lands, officially known to be such. All the terms of the act, particularly the fourth section, contemplate the maps of the surveys being on file. The case of settles upon the unsurveyed domain was a clear omission. Such settlers never came within its provisions. The act of 14th July, 1832, was designed for the relief of that class. So far it was not a revival, but an extension, of the terms of the act of 1830. It embraced what the old act did not. The cultivation and possession of unsurveyed land was nothing under the first act. They were the very basis of right under the new law. Whatever interest, therefore, the complainants had, is legally to be ascribed to this latter act, notwithstanding the proof of preëmption before the expiration of the preëmption law. Should this question, then, be considered as a mere contest between titles by relation, extending retrospectively to the first link in them, the defendants have the elder title.

The second ground of demurrer is, "that the bill shows on its face that said Cloyes was not the settler or occupant of the northwest and northeast quarters of section two, and northwest and northeast quarters of section one, township one, north range twelve west." The third, fourth, fifth, sixth, seventh, eighth, and ninth causes of demurrer are all based upon the second cause assigned, are altogether substantially the same proposition, and may be considered in connection. The objections which they present are applicable alone to the title of complainants to the northeast fractional quarter of section two, and the northwest and northeast fractional quarters of section one, part of the lands claimed by the complainants. These tracts were claimed under the privilege, as appurtenant to the right of preëmption, proven on the tract cultivated, which privilege was rejected. These three fractions are held by one [p328] of the defendants under patents, issued upon selections made by Governor Pope, under different acts of Congress, granting ten sections of land to the Territory. Those acts have no connection with the title to the tract before considered. The claims thus located were assigned to Wm. Russell, one of the defendants.

That the privilege of preëmption did not extend to the additional fractions claimed as appurtenant to it, that the decision of the register and receiver was right in rejecting it, and that decision conclusive until reversed or set aside, and that the subsequent proceedings of the receiver at Little Rock in granting his certificate were unwarranted, appear by reference to the act of 29th May, 1830, the instructions of the Commissioner of the General Land Office under it, and the opinions of the Attorney-General in exposition of them.

(The counsel then proceeded to show that the title of the complainants was not good to the three fractional quarter-sections.)