Elizabeth Barnard, Mary Barnard, Corrine Barnard, William Barnard, and Thomas Barnard, Infant Children and Sole Heirs of Thomas Barnard, Deceased By William Cannon, Their Guarian and Next Friend, Complainants and Appellants v. Mary Ashley, Executrix and William Ashley, and Frances Ashley, and Henry Ashley, An Infant, By Mary Ashley, His Guardian, Heirs of Chester Ashley, Deceased and Silas Craig Representatives

Decision Date01 December 1855
PartiesELIZABETH J. BARNARD, MARY A. BARNARD, CORRINE BARNARD, WILLIAM S. BARNARD, AND THOMAS BARNARD, INFANT CHILDREN AND SOLE HEIRS OF THOMAS BARNARD, DECEASED, BY WILLIAM CANNON, THEIR GUARIAN AND NEXT FRIEND, COMPLAINANTS AND APPELLANTS, v. MARY W. W. ASHLEY, EXECUTRIX, AND WILLIAM E. ASHLEY, AND FRANCES A. ASHLEY, AND HENRY C. ASHLEY, AN INFANT, BY MARY W. W. ASHLEY, HIS GUARDIAN, HEIRS, & C. OF CHESTER ASHLEY, DECEASED, AND SILAS CRAIG'S REPRESENTATIVES
CourtU.S. Supreme Court

THIS was an appeal from the circuit court of the United States for the southern district of New York.

The case is stated in the opinion of the court.

It was argued by Mr. Pike, for the appellants, and by Mr. Lawrence and Mr. Crittenden, for the appellees.

The points of law made by the respective counsel were so interwoven with the facts, that they cannot be explained without an elaborate statement of the case.

Mr. Justice CATRON delivered the opinion of the court.

The proceedings in the court below consisted of a bill filed by Barnard against Ashley and Craig, praying that certain patents for lands issued to the defendants might be decreed to be cancelled, upon the ground of a violation of pre emption rights on part of the complainant, to the following tracts, namely: N. E. 1/4 and S. W. fr. 1/4 of sec. 27; S. E. fr. 1/4 of sec. 28, T. 18 S., R. 1 W.; S. W. fr. 1/4 of sec. 15, T. 19 S., R. 1 W.; S. E. 1/4 of sec. 22, T. 18 S., R. 1 W.; and a cross-bill on part of Ashley to be quieted in his title to the S. E. qr. of sec. 22, against the right set up by Barnard to that tract, under a junior patent therefor, upon the ground that Barnard had no right to this tract, and that the patent was issued to him improperly.

The title of Ashley and Craig (the appellees) to the first four tracts is derived from a sale to them of the land in controversy by the governor of Arkansas, in consequence of a selection made by him of the land under certain provisions of the acts of congress of the 2d of March, 1831, and the 4th of July, 1832, (4 Stats. at Large, 473, 563,) upon which selection and sale patents were issued by the United States. The title to the S. E. 1/4 of sec. 22, T. 18 S., R. 1 W., is derived from the location of what is called a 'Lovely donation claim' on this quarter section, by virtue of the provisions of the 8th section of the acts of the 24th of May, 1828, (4 Stats. at Large, 306,) and 6th of January, 1829, (Ibid. 329.)

According to the conceded facts, it is insisted, on the part of Ashley and Craig, that the register and receiver having, on due proof and examination, rejected Barnard's claims to a preference of entry of the four quarter sections, he is thereby concluded from setting them up in a court of equity, because the register and receiver acted in a judicial capacity, and their judgment, being subject to no appeal, is conclusive of the claim. And the cases of Jackson v. Wilcox, and Lytle v. The State of Arkansas are relied on to maintain this position.

In cases arising under the pre emption laws of the 29th of May, 1830, and of the 19th of June, 1834, the power of ascertaining and deciding on the facts which entitled a party to the right of pre emption was vested in the register and receiver of the land district in which the land was situated, from whose decision there was no direct appeal to higher authority. But, even under these laws, the proof on which the claim was to rest was to be made 'agreeably to the rules to be prescribed by the commissioner of the general land-office;' and, if not so made, the entry would be suspended, when the proceeding was brought before the commissioner by an opposing claimant. In cases, however, like the one before us, where an entry had been allowed on ex parte affidavits, which were impeached, and the land claimed by another, founded on an opposing entry, the course pursued at the general land-office was to return the proofs and allegations, in opposition to the entry, to the district office, with instructions to call all the parties before the register and receiver, with a view of instituting an inquiry into the matters charged; allowing each party, on due notice, an opportunity of cross examining the witnesses of the other, each being allowed to introduce proofs; and, on the close of the investigation, the register and receiver were instructed to report the proceeding to the general land-office, with their opinion as to the effect of the proof and the case made by the additional testimony. And, on this return, the commissioner does in fact exercise a supervision over the acts of the register and receiver. This power of revision is exercised by virtue of the act of July 4, 1836, § 1, which provides 'that, from and after the passage of this act, the executive duties now prescribed, or which may hereafter be prescribed by law, appertaining to the surveying and sale of the public lands of the United States, or in anywise respecting such public lands; and also such as relate to private claims of land, and the issuing of patents for all grants of land under the authority of the government of the United States, shall be subject to the supervision and control of the commissioner of the general land-office, under the direction of the President of the United States.' The necessity of 'supervision and control,' vested in the commissioner, acting under the direction of the President, is too manifest to require comment, further than to say that the facts found in this record show that nothing is more easily done than apparently to establish, by ex parte affidavits, cultivation and possession of particular quarter sections of land, when the fact is untrue. That the act of 1836 modifies the powers of registers and receivers to the extent of the commissioner's action in the instances before us, we hold to be true. But if the construction of the act of 1836, to this effect, were doubtful, the practice under it for nearly twenty years could not be disturbed without manifest impropriety.

The case relied on, of Wilcox v. Jackson, 13 Pet. 511, was an ejectment suit, commenced in February, 1836; and as to the acts of the register and receiver, in allowing the entry in that case, the commissioner had no power of supervision, such as was given to him by the act of July 4, 1836, after the cause was in court.

In the next case, 9 How. 333, all the controverted facts on which both sides relied had transpired, and were concluded before the act of July 4, 1836, was passed; and therefore its construction, as regards the commissioner's powers, under the act of 1836, was not involved. Whereas, in the case under consideration, the additional proceedings were had before the register and receiver in 1837, and were subject to the new powers conferred on the commissioner.

In Lytle's case, we declared that the occupant was wrongfully deprived of his lawful right of entry, under the pre emption laws, and the title set up under the selection of the governor of Arkansas was decreed to Cloyes, the claimant, this court holding his claim to the land to have been a legal right, by virtue of the occupancy and cultivation, subject to be defeated only by a failure to perform the conditions of making proof and tendering the purchase-money. There the facts were examined to ascertain which party had the better right; and, following out that precedent, we must do so here.

Governor Pope was authorized to select lands equal to ten sections in the Territory of Arkansas, in tracts not less than a quarter section each, and to sell the same for the purpose of raising a fund to erect public buildings in the territory. The three first-named quarter sections lie in township 18, the survey of which was made and returned to the local land-office, and approved June 4, 1834, when the lands therein were subject to entry by the governor.

He made his final amended selections of the three tracts in township 18, June 6, 1834. The bill claims title to these tracts under the occupant law of June 19, 1834. As Governor Pope's assignees, Craig and Ashley had a vested right when the act of June 19 was passed; it did not operate on these lands, which were appropriated to the use of the United States; and patents for them were properly awarded to the purchasers from the governor.

The condition of the S. W. quarter of sec. 15, T. 19, differs from the preceding lands in this: the township survey of No. 19 was found to be inaccurate when first returned to the land-office at Little Rock, and a resurvey was ordered as to some of the section lines, which were...

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