
    Joel Dickinson vs. Doe ex dem. Josiah Brown.
    A court of equity may give preference to a prior entry with a junior patent; because the equities alone are involved.
    All certificates issued in pursuance of any act of congress by any board of commissioners, register of a land office, or any other person or persons duly authorized to issue such certificate, founded on any warrant, or order of survey, or in right of any donation, preemption or purchase from the United States, for any lands, constitute, under the statutes of this state, a legal title, so far as to enable the holder to maintain an action thereon ; and are admissible as evidence of such.
    The certificate is but a substitute for a better title, and is not on an equal footing with a patent. A state cannot say what mode the general government shall pursue in passing title; where, therefore, a certificate of entry has been issued to one person, of land, but no patent, and the government after-wards gave a patent to the same land to another person, the latter will prevail in an action of ejectment against the former, as being the better title.,
    This court cannot say that the register and receiver, with the approbation of the commissioner of the general land office, have no power to cancel a certificate of entry; on the contrary it is believed that such power is uniformly exercised.
    ERROR from the circuit court of Greene county. Hon. A. B. Dawson, judge.
    Josiah Brown sued Joel Dickinson in an action of ejectment for the recovery of a tract of land, a description of which is not material. The jury gave a verdict in favor of Brown.
    On the trial of the cause the plaintiff introduced a patent from the United States for the land in question. The defendant admitted himself to be in possession of the land, and, after the plaintiff had closed his evidence, offered the following receipt, which was read to the jury, viz.:
    
      "Preemption Act of 1834. f Receiver's Office, Augusta, Miss.
    
    No. 6950. . ( 20th March, 1841.
    Received from Matthew Dickinson, of Green Co., Miss., the sum of eighty dollars, being in full for the lot number three of section number ten township number one north of range number six west, containing sixty-four acres, at the rate of one dollar and twenty-five cents per acre.
    Duplicate.
    $80 00 William G. Ceawley, Receiver.”
    And also offered a quit-claim deed from the heirs of Matthew Dickinson, deceased, to himself, dated the fifth day of February, 1842, and there rested. The plaintiff, to rebut that testimony, offered the following certificate, to wit:
    “ Preemption Act, June, 1834. t Land Office at Augusta,
    
    No. 6950. } Miss., 20th March, 1841.
    It is hereby certified, that, in pursuance of law, Matthew Dickinson, of Green county, state of Mississippi, on this day purchased of the register of this office, the lot or division number three of fl. section number ten in township number one, north, of range six west, containing sixty-four acres, at the rate of one dollar and twenty-five cents per acre, amounting to eighty dollars and cents, for which the said Matthew Dickinson has made payment in full, as required by law.
    Now, therefore, be it known, that on presentation of this certificate to the commission of the general land office, the said Matthew Dickinson shall be entitled to receive a patent for the above described land.
    Cancelled. W. A. TiReell, Register.
    
    
      General Land Office, March 2d, 1846.
    I, James Shields, commissioner of the general land office, do hereby certify that the annexed is a true and literal exemplification of the original on file, in this office. In testimony whereof, I have hereunto subscribed my name, and caused the seal of this office to be affixed, at the city of Washington on the day and year above written.
    [ l. s. ] James Shields,
    
      Commissioner of the General Land Office.”
    To which testimony of the plaintiff the defendant, by his counsel, objected. His objection was overruled by the court; to which opinion the defendant, by his counsel, excepted.
    The defendant, to show that the cancellation of the preemption certificate issued to Matthew Dickinson was unauthorized by law, offered a copy of the record and proceedings had in the case from the land office. The following is the substance of the matters contained in this record. A correspondence being held between the land officers of this state and the commissioner of the general land office, in relation to Dickinson’s right of preemption, the commissioner determined that it was good, and ordered the entry to be allowed, which was done. Brown being interested, objected to the legality of the entry, and on his objection a further correspondence took place between the land officers and the commissioner, which resulted in an order to have testimony taken in regard to Dickinson’s right, which was done. The evidence having been heard and examined, the register and receiver decided against Dickinson’s right and communicated their decision to the commissioner who approved it, cancelled the certificate and directed the purchase-money to be refunded. The register and receiver, in communicating their decision to the commissioner of the general land office, say; — “ In support of this opinion we herewith transmit a letter of Spencer Chatham, the witness upon whose testimony alone the claim was admitted, dated Feb. 9th, 1592, and invalidating his evidence to a great degree, if it does not render it entirely nugatory. The cultivation to which he had allusion in his affidavit, as explained in this letter, was not, in our opinion, such as was contemplated by the act of 19lh June, 1834, and whatever degree of credence his affidavit might have been entitled to subsequent to the receipt of his letter, is in our opinion entirely destroyed by the affidavits of Lott, McDonald and Evans. "We have in our investigation considered the validity of the claim as resting upon the evidence of Chatham. The subsequent affidavits of William Dickinson and William Welfórd not being proof, the former being directly interested as one of the heirs of Matthew Dickinson, and the statements of the latter not embracing the subject.”
    
      The following extract contains all that is material in the above-mentioned letter from Chatham. “ Dickinson, it seems, inclosed a piece of ground in the latter part of December, 1833, in what we call the twelve days; planted it, or part of it, in cabbage seed, &c., and in the spring of 1834 himself and son-in-law Welford moved to it, or perhaps Welford might not have settled till the summer or fall of 1834, and all settled, as they thought, on the same quarter-section of land; but the land being surveyed since, the house that Dickinson built was on another quarter by a few yards — not on the quarter that was cultivated, but Welford’s house is on the same quarter that was first improved, and himself and family, or Dickinson’s family have cultivated it ever since, and if the house of Dickinson failing to be on that quarter should defeat- his preemption, Wel-ford must be the proper preémptor. If no person but Brown was on the land, he cannot have a preemption, because he is living on his own land that has been paid for. There is a law that provides that where a person resides on one quarter seer tion and cultivates another, he may prove his claim on which he chooses, and I never once thought that any difficulty could arise from the situation of the house being on another quarter section from the improvement.”
    The depositions of Murray, Cooley, Evans, McDonald and Lott were taken for Brown; those of William Dickinson, Dunn, William and Celia Murray, for Dickinson; and appear in the records from the land office, but it is not deemed requisite to notice them further.
    This record and proceedings were rejected by the court, as not proving that the cancellation was unauthorized by law; to which opinion of the court the defendant by his counsel excepted.
    The defendant then offered to prove that the patent read by the plaintiff was obtained by fraud and as the first link in his chain of evidence offered the copy of the record and proceedings above-mentioned; which record, on motion of the plaintiff’s attorney was (after having been read to- the jury) withdrawn by order of the court, and excluded from them. To which opinion of the court, withdrawing and excluding said testimony, the defendant by his counsel excepted.
    After the rendition of the verdict of the jury the defendant made a motion for a new trial, for the following reasons :
    1st. The rejection of the record and proceedings of the whole matter, as ground upon which to prove that the patent of plaintiff was obtained by fraud.
    2d. For matters contained in the affidavits of defendant. It is not deemed necessary to set out these affidavits.
    The motion was overruled, and this writ of error prosecuted.
    
      Joel Dickerson, for plaintiff in error,
    contended, that the court below erred,
    1. In admitting the certificate of purchase marked “ can-celled ;” analogous to a title acquired under judgment, in which the whole record must be produced.
    2. “ The rejection by the court of the record offered by Dickinson, to prove that such cancellation was unauthorized.” Act of congress establishing the office of commissioner gives no authority. Register and receiver act judicially, and their acts are conclusive. Opinion of Butler, attorney-general. Opin. and Ins. 84, 92, 140. Where a tribunal has no jurisdiction its acts are a nullity. 9 Cow. 227; 6 How. 114, 234. Res adjudícala is conclusive. 4 How. 151. Where a court has jurisdiction, and has decided, its acts are binding on every other court. 1 Pet. 340.
    3. The rejection of the same record as a ground on which to prove that the patent of Brown was obtained by fraud, overruling the motion for a new trial. “Any act may be set aside for fraud.” 5 How. 386; Acts, 1841, pp. 120,121.
    
      George Calhoun, for defendant in error,
    cited Bledsoe v. Wells, 4 Bibb, 329; 1 Munf. 134; 5 Com. Dig. tit. Patent, letters A. 1, F. 2; 2 Black. Comm. 350-352; Jennings v. Whitaker, 4 Mun. 50; 5 Mun. 213; Polk v. Wendell, 4 Cow. R. 652; How. & Hutch. 599, 605; Acts of 1844, p. 230.
   Chief Justice Sharkey

delivered the opinion of the court.

This was an action of ejectment for sixty-four acres of land, being part of Section No. 10, in Township No. 1, of Range 6, west. Brown, the plaintiff below, introduced a patent from the United States, for the land in question, dated 26th of April, 1843. The patent is not set out, nor is there anything to show the date of the entry on which it was made. To overreach this title, the defendant introduced a receipt from the receiver of public money at Augusta, which is for the purchase-money for the same land, dated 20th March, 1841, and was given to-Mathew Dickinson, in connection with which a quitclaim deed from Matthew Dickinson’s heirs to the defendant, seems to have been offered. As rebutting evidence, the plaintiff then offered the certificate of entry given by the register on the above named receipt of the receiver, to Matthew Dickinson. The entry seems to have been made under the preemption law, and across the face of the certificate is the word “cancelled.” To this is attached the certificate of the commissioner of the general land office, that it is a true and literal exemplification from the original on file in his office. To the introduction of this the defendant objected, but it was admitted. To prove that the cancellation was unauthorized by law, the defendant offered to introduce a correspondence between the land officers of this state and the commissioner of the general land office, in relation to Dickinson’s right of preemption. The commissioner determined that it was good, and ordered the entry to be allowed, which was done. Brown being, as it would seem, interested, objected to the legality of the entry, and on his objection a further correspondence took place between the land officers and the commissioner, which resulted in an order to have testimony taken in regard to Dickinson’s right, which was done, the result of which was that the register and receiver decided against Dickinson’s right, and communicated their decision to the commissioner, who approved it, cancelled the certificate, and directed the purchase-money to be refunded. This evidence was excluded by the court, because it did not prove that the certificate was cancelled contrary to law. The defendant then offered to prove that the plaintiff’s patent was procured by fraud, and the correspondence and decision cancelling the certificate of entry, were offered as the first step towards such fact; but, having been read to the jury, they were withdrawn from them. A verdict was found for the plaintiff, and the defendant moved for a new trial, and filed two affidavits, which, however, need not be noticed, as they give no support to the motion. The errors assigned relate to the admission of the cancelled certificate, and to the rejection of the correspondence •which led to the cancellation of the certificate.

The plaintiff’s patent was a legal title, sufficient to justify a recovery, without further or additional proof. The title set up by the defendant, was the certificate of the receiver of public moneys, which was not in strictness even an entry; it was but an authority to enter. The entry is made with the register, who gives a certificate. But suppose this receipt is to be regarded as an entry, then, as against the government it constituted but an equity. A court of chancery may give preference to a prior entry with a junior patent, because the equities alone are involved. But it is insisted that our statute makes the certificate of the receiver a legal title. It makes “ all certificates issued in pursuance of any act of congress, by any board of commissioners, register of a land office, or any other person or persons duly authorized to issue such certificate, founded on Any warrant, or order of survey, or in right of any donation, preemption, or purchase from the United States, for any lands,” &c., a legal title, so far as to enable the holder to maintain an action' thereon, and admissible in evidence as such. This statute makes the certificate but a substitute for a better title. It does not profess to place it on an equal footing with a patent. The public lands belong to the United States, and congress have declared what shall be the complete legal title. When that legal title passes it must be intrinsically superior to a mere entry. The state cannot say what mode the government shall pursue in passing title. The certificate then was the inferior title.

But admitting that it constituted a legal title, it was in proof that the certificate of entry had been cancelled, and we cannot say that the register and receiver, with the approbation of the commissioner of the general land-office, had no power to cancel it; on the contrary, it is believed that such power is uniformly exercised. To a certain extent these officers have a discretion in such matters. They are empowered to hear and decide on an application for a preemption right. As against the government, the certificate was but an incipient or inchoate title; the officers discovered that it had been improvidently issued, and cancelled it, and issued a complete legal title to another; and refunded, or offered to refund, the money paid; and it was competent for the plaintiff to prove this statement of facts.

In the next place this correspondence was offered by the defendant to prove that his certificate had been cancelled improperly, and that the plaintiff’s patent was obtained by fraud. If the facts disclosed by the correspondence be true, they prove the very reverse of this; they prove that the certificate of entry was procured improperly, and .properly cancelled; or at least the facts were regarded as establishing that state of case. It certainly does not prove fraud, and the court was right in deciding that it was inadmissible for that purpose. We see no ground, therefore, for reversing the judgment.

Judgment affirmed.  