John Hale, Plaintiff In Error v. William Gaines and Maria Gaines His Wife, Albert Belding, Henry Belding, and George Belding, Heirs and Legal Representatives of Ludovicus Belding, Deceased Defendants

• Decision Date: 01 December 1859
• Parties: JOHN C. HALE, PLAINTIFF IN ERROR, v. WILLIAM H. GAINES AND MARIA GAINES HIS WIFE, ALBERT BELDING, HENRY BELDING, AND GEORGE BELDING, HEIRS AND LEGAL REPRESENTATIVES OF LUDOVICUS BELDING, DECEASED, DEFENDANTS
• Court: U.S. Supreme Court

63 U.S. 144

22 How. 144

16 L.Ed. 264

JOHN C. HALE, PLAINTIFF IN ERROR, v. WILLIAM H. GAINES AND MARIA GAINES HIS WIFE, ALBERT

BELDING, HENRY BELDING, AND GEORGE BELDING, HEIRS AND

LEGAL REPRESENTATIVES OF LUDOVICUS BELDING,

DECEASED, DEFENDANTS.

December Term, 1859

THIS 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 was an action of ejectment brought by William H. Gaines and the other defendants in error against John C. Hale, to recover the southwest quarter of section thirty-three, in township two south, of range nineteen west, containing one hundred and sixty acres. This claim was under the pre-emption act of Congress of the 29th of May, 1830, (4 Stat. at L., 420,) and the supplementary act of the 14th July, 1832, (4 Stat. at L., 603.)

The defendant below (Hale) claimed to hold by virtue of the fifth section of the pre-emption act of the 12th April, 1814, (3 Stat. at L., 122,) together with the act of 1st March, 1843, (5 Stat. at L., 603.)

The jurisdiction of this court was therefore clear.

The action was brought in the Hot Springs Circuit Court, (State court,) which, after a trial, gave the following judgment:

'It is therefore considered by the court that said plaintiffs. William H. Gaines and Maria Gaines his wife, Albert Belding, Henry Belding, and George Belding, do have and recover of and from the said defendant, John C. Hale, as well the possession of the tract or parcel of land described in their declaration in this behalf, as all that part of a certain tract or parcel of land designated on the public surveys as the southwest quarter of section thirty-three, in township two south, of range nineteen west, which lies between a dividing line sometimes called Mitchell's line, heretofore established by one Milus H. Wood and said Hale, between their respective possession on said quarter section and the northern or upper line of a place in Hot Springs Valley, commonly called Texas, and which part of said quarter section of land includes and embraces all the buildings, houses, out-houses, bath-houses, lots, enclosures, and gardens, connected with or pertaining to the tavern stand, sometimes and generally known as Hale's tavern stand, immediately below and south of the premises used and occupied by Warren & Stidham as a tavern stand during

the summer of the year 1851, and the said sum of five hundred dollars for their damages sustained in this behalf, and so as aforesaid assessed by the jury, as also all their costs in this behalf expended to be taxed, &c. And it is ordered by the court, that said plaintiffs do have execution hereof, by writ of possession for said land and premises, with command by levy and collect the damages and cost aforesaid, as is by law in such cases provided.'

In the course of this trial, sundry bills of exceptions were taken, which, for the purpose of this report, it is not necessary to state particularly. Under them, the case was carried to the Supreme Court of Arkansas, which affirmed the judgment of the court below, except as to a question of damages, which need not be further mentioned.

The case was brought up to this court by a writ of error issued under the twenty-fifth section of the judiciary act.

It was argued in this court by Mr. Frederick P. Stanton for the plaintiff in error, and by Mr. May and Mr. Watkins, upon a brief filed by Mr. May, Mr. Brent, and Mr. Watkins, for the defendant in error.

Mr. Stanton, for the plaintiff in error, first attacked the title of the Beldings, as between them and the United States; but, as the court did not decide this point, the argument upon it is omitted.

The next point was to show that the act of 1843 extended to the benefit of pre-emptioners under the act of April 12th, 1814. As this was the principal point in the case, his argument is reported as follows:

The act of 1814, already referred to as the foundation of Hale's title, relates back to the act of February 5th, 1813.

Stat. at Large, 2 vol., 797, 798.

These earliest among the pre-emption laws have no prohibition against a sale or transfer of the right derived under them, and hence such transfers were always treated as valid until subsequent laws made them null. The record shows Hale's title to be regularly derived from John Percifull, who settled

on the land in 1812, and continued to occupy it for many years afterwards.

Although in 1814 the land in question was in the county of Arkansas, one of the organized counties of the Missouri Territory, and therefore supposed to be subject to settlement and pre-emption, the General Land Office subsequently held the contrary, because the Indian title had not then been extinguished. By the treaty with the Quapaw Indians, made November 15th, 1824, the land was ceded to the Government.

The reservation act above quoted was passed April 20th, 1832.

The remedial act for the benefit of pre-emptioners under the act of 1814 was passed on the 1st March, 1843, (5 Stat., 603;) and as everything depends on the construction of this law, it is deemed proper to quote it at large, as follows:

'An act to perfect the titles to lands south of the Arkansas river, held under New Madrid locations and pre-emption rights under the act of 1814.

'Be it enacted, &c., That the locations heretofore made of warrants issued under the act of 17th February, 1815, entitled 'An act for the relief of the inhabitants of the late county of New Madrid who suffered by earthquakes,' which were made on the south side of the Arkansas river, if made in pursuance of the provisions of that act in other respects, shall be perfected into grants in like manner as if the Indian title to the lands on the south side of said river had been completely extinguished at the time of the passage of said act.

'SEC. 2. And be it further enacted, That in all cases in which the locations so made, &c., may have been sold, &c., the owner of the warrants, &c., shall have a right to enter other lands, &c.

'SEC. 3. And be it further enacted, That every settler on the public lands south of the Arkansas river shall be entitled to the same benefits accruing under the provisions of the pre-emption act of 1814, as though they had resided north of said river.

'SEC. 4. Be it further enacted, That all Cherokee pre-emptions which have been or may be located * * * south of the base line in Arkansas, shall be confirmed, and patents shall issue as in other cases.'-

The Indian title to the lands north of the Arkansas river had been extinguished by the treaty with the Osages, made 10th November, 1808.

7 Stat., 107.

In view of the rights of a bona fide settler on the Hot Springs tract in 1814, does the act of 1843 repeal the reservation act of 1832? The department holds the negative. Yet it is believed that the repugnance of the two statutes is such that they cannot be construed to stand together.

Not only the title, but the whole scope of the law, indicates that the purpose of Congress was to remove the difficulty arising from the Indian title resting on the lands south of the Arkansas in 1814, and subsequently. As a historical fact bearing on this point, the court is referred to the report of the committee which introduced the bill into the Senate. They expressly say that, inasmuch as the Indian title south of the Arkansas river had not been extinguished in 1814, and some pre-emptions had on that account been decided to be unlawful, 'the bill therefore provides that the settlers on both sides of the Arkansas river shall be placed upon the same footing.'

Sen. Rep. No. 36, 2d sess. 27th Cong.

The act of 1843 intended to confirm the pre-emption rights south of the Arkansas river ab initio—that is to say, it intended to place the pre-emptor in the position he would have occupied if the Indian title had been previously extinguished. That Indian title was the only obstacle; and the professed object of the law of 1843 was to remove that obstacle, to cure that defect of title, and to give full force and effect to the law of 1814, south of the Arkansas as well as north of it.

'A remedial act shall be so construed as most effectually to meet the end in view, and to prevent a failure of the remedy.'

Dwar., Stat., 614.

'Beneficial statutes, therefore, have always been taken and expounded ultra the strict letter, but not, it is well and wisely said, contra the letter.'

Ibid., 623.

'Every affirmative statute is a repeal of a precedent affirmative statute, where its matter necessarily implies a negative;

but only so far as it is clearly and indisputably contradictory and contrary to the former act 'in the very matter,' and the repugnancy such that the two acts cannot be reconciled; for then leges posteriores priores contrarias abrogant.'

Ibid., 530 to 531, and authorities there quoted.

The enactment of 1843 is, that 'every settler south of the Arkansas shall be entitled.' John Percifull was one of those settlers, and he is included in the very words of the law—as much so as if the settlers had been enumerated and called by name. The Hot Springs were reserved in 1832, but John Percifull was settled there in 1814. The repugnance of the two laws is 'in the very matter;' they cannot stand together.

Against this construction have been quoted:

Wilcox v. Jackson, 13 Pet., 513.

Gear v. United States, 3 How., 120.

Of these, the latter alone deserves consideration, having an apparent application to the case in hand.

In the case of Gear, a lead mine was claimed by pre-emption, upon the ground that all the lands in a certain district were directed to be sold by a law passed in 1834, which law made some special exceptions, but did not except lead mines. This court held that the general law of 1807, which reserved all lead mines and salt springs from sale, was operative in the district mentioned, notwithstanding the broad terms of the law of 1834.

The facts of...