
    THE HOT SPRINGS CASES.
    John C. Hale v. The United States. Henry M. Rector v. The United States. McKay & Gitt v. The United States. John H. Russell v. The United States. William H. Gaines et al. v. The United States.
    
      On the Proofs.
    
    
      In 1814 Percifull inhabits and cultivates a piece of land at the Sot Springs, but the public lands there are not yet surveyed and offered for sale, nor is the Indian title extinguished. Ultimately P. attempts to enter a quarter-section and get a certificate of sale under the Pre-emption Act April 12,1814. In 1819 Rector files his application to locate at the Sot Springs a New Madrid certificate for 200 arpents of land. Subsequently he procures a survey to be filed and returned in the surveyor-genmil’s office, locating the 200 arpents at and around the Sot Springs. The Indian title is then extinct, but the lands there have not been surveyed or offered for sale. In 1829 Belding occupies and cultivates at the Springs as tenant of Percifull. Subsequently his heirs seek to enter and perfect title under the Act May 29, 1830. In 1832 Congress pass the Act April 20, 1832, reserving the Springs for the future disposal of Congress, and forbidding an entry to be allowed at the Land-Office. In 1870, ('the three adverse parties having a foothold or occupancy atthe Springs,) Congress pass the Sot, Springs Act, empowering this court to sit as a court of equity and adjudicate'the alleged titles to the Sot Springs, both between the claimants and the Government, and between the adverse claimants. Five parties, claiming under one or the other of the before-mentioned titles, bring their several suits, which are consolidated and tried together.
    
    I. Tlie Sot Springs Act June 11,1870, (16 Stat, L., 149,) which provides that “ any person claiming title, either legal or equitable,” to the Hot Springs of Arkansas may institute in this court “ any suit that may be necessary to settle the same,” and that the court on final decree may order the lands into the possession of a receiver for the benefit of the United States, or direct the issuing of a patent to a party whose title is adjudged valid, does not cede any right or interest of the United States, nor does it confer on others any right, legal or equitable. To maintain a title and obtain a decree under this statute, the party must be possessed as purchaser of an equitable title to the lands.
    
      II. As 'between the Government and those seeking to become purchasers or grantees of the public lands, the final action of the. Land-Office has always been regarded as final by the judiciary. And the Sot Springs Act, (16 Stat. L., 149,) which authorizes “any person claiming title, either legalor equitable,” to maintain a suit in equity against the Government in this court, does not substitute the court in the stead of the officers of the Land-Office to perform duties which they may have left undone, nor does it authorize the court to review their decisions. The extent of its power is this: that if the Land-Office, as agent of the Government, has made a valid sale of the land in dispute, the court may decree as against the Government a specific performance by the issuing of a patent.
    IÍI. When a pre-emption purchaser paid his money and procured a certificate of pre-emption, the land became severed from the public domain, and he became possessed of an equitable title thereto, though the legal title remained in. the Government till the patent issued. Conversely, a settler acquired no title, legal or equitable, until he procured this certificate -r and, until the land was thus severed from the public domain, the Government retained the right to reserve it from sale and evict the settler as a trespasser.
    IV. Where one statute (the Act May 29,1830, 4 Stat. L., 420) authorizes for one year an entry and sale in favor of settlers on public lands not “ reserved from sale by act of. Congress,” and a second (the Aet April 20, 1832, id., 505) reserves a designated tract and provides that it “ shall not be entered, located, or appropriated,” and a third (the Act July 14, 1832, id., 603) revives the first and declares that any settler “ shall be permitted to enter the said lands on the same conditions, in every respect, as are prescribed” in the first statute, it must be held that the third statute does not by implication take the designated tract out of the operation of the reservation act. The act of revival must be applied to the original act as if the intervening statute had worked a vested right in favor of a third person, which is the Government in its corporate or proprietary, as distinguished from its legislative, character.
    V. A location on the" public lands under the Seto Madrid Aet, (3 Stat. L., 211, 5 1,) according to .several opinions of the Supreme Court, consists in the surrender of a New Madrid certificate by the party and the filing of a plat and notice by the surveyor-general with the recorder of land-titles. Until the plat be filed the land is not severed from the public domain, and no right or equity is vested in the party; and this though the party may have done all that the statute required him to do and could not compel the action of the surveyor-general.
    
      The Reporters’ statement of the case:
    The facts in these cases fully appear in the opinion of the court.
    
      
      Mr. Frederick P. Stanton for John C. .Hale:
    The claimant in this case is assignee of the rights acquired by one John Percifull, who settled on the land in controversy as early as 1808 or 1809, and continued to hold and occupy it until his death in 1836. His widow and son continued the occupation after his death; and the survivor of these, the son and heir, sold and conveyed his entire right in the premises to the claimant. The pre-emption claim of John Percifull is founded on the fifth section of the Act April 12, 1814, (3 Stat. L., 122, 123.) The apt giving pre-emption to settlers in Illinois, referred to in the Act April 12,1814, will be found in 2 Stat. L., .797.
    At the time of the origin of this pre-emption claim in 1814, the land in question, embracing the Hot Springs, was a part of the Territory of Missouri. (See the Act March 26, 1804, 2 Stat. L., 287, 288, and the Act June 4,1812, 2 Stat. L., 743.) By the former act the scope of country now constituting Missouri and Arkansas was called the District "of Louisiana, and was placed under the government of the Territory of Indiana; by the latter act it was erected into a territorial government and called the Territory of Missouri. In this Territory the county of Arkansas, including the Hot Springs, was organized on the 31st December, 1813. (Geyer’s Dig. Laws of Mo., p. 133, § 7.) Arkansas Territory was established by the Act March 2,1819, (3 Stat. L., 493.)
    Thus it will appear that at the time when the pre-emption Act o/1814 was passed the tract of land now in dispute was embraced within one of the organized counties of the Territory of Missouri, but this part of the Territory was not surveyed and subdivided until the year 1838. Prior to this survey it was not possible to make proof of the right of pre-emption, or to apply to enter the land. But the fact that the lands were unsurveyed was no obstacle to the acquiring of a right of preemption, for the Act February 5,1813, which is made part of the Pre-emption Act of 1814, especially refers to the ‘‘sectional and divisional lines, run or to be run,” and evidently contemplated settlements on unsurveyed lands as well as others.
    After the land had been surveyed in 1838j and before it had been offered for sale, Sarah Percifull, the widow, and David Per-cifull, the son and only heir of John Percifull, deceased, made their application to pre-empt and enter the land at the proper land-office in Washington, Arkansas, and filed with the register and receiver their notice and proof of the pre-emption right of John Pereifull, under the Aot April 12,1814. At page 104 is to be found the decision of the register and receiver rejecting the claim. This was on the 27th September, 1838, and the reason given was that the land had been located by New Madrid certificate No. 467, in the name of Francis Langlois. In October, 1843, after the present claimant had acquired an interest in this claim, Sarah Pereifull renewed her application to enter the land •, and the additional proofs made at this time are to be found at pages 105 and 106.
    Again, in 1850, an application was made by the'present claimant to enter the land in controversy under the Pereifull preemption- and in January, 1851, under instructions from the Commissioner of the General Land-Office, depositions were taken before the register and receiver at, Washington, Arkansas, in support of the titles of the several claimants to the land. These proceedings, with the testimony taken, are to be found at pages 113 to 154. Separate opinions or arguments of the register and receiver are given at some length, the latter being in favor of Hale’s right to pre-empt under the Pereifull claim of 1814, and the former being against it. It seems that at this investigation the register and receiver did not allow to Hale the necessary and reasonable time required to procure the testimony of some of his material witnesses, and even refused to hear them when they were produced. But as the case now stands, this feature of it is not important, inasmuch as all the testimony which could be procured after so great a lapse of time is now before this court, and is amply sufficient to establish the fact that John Pereifull inhabited and cultivated the tract of land in controversy, so as to entitle him to a right of pre-emption under the Act April 12, 1814.
    In reply to the objections as to the character of Percifull’s inhabitancy and cultivation, Mr. Stanton insisted that the mode adopted was not only the most effective, but the only possible one of making the springs habitable and useful. Pereifull had his house and garden at the springs, and was reputed to be the proprietor,- but he found it necessary to make bread elsewhere, and to hunt game to supply the demand at the springs, where there was so little cultivable land. But these outside operations were merely ancillary to the claim at the springs, as that was the only pre-emption claim ever made or contemplated by the settler.
    It is not necessary to enter elaborately into the testimony to prove that Percifull performed such acts of settlement and cultivation as would have entitled him to a pre-emption under the act of 1814, supposing the land to have been subject to the provisions of that act; for in truth this has never been seriously contested by the Government. His right has been denied on other grounds, viz, the existence of the Indian title and the Reservation Act of 1832.
    The Commissioner of the General Land-Office, in his letter of March 1, 1843, says: “ The Percifull claim was decided against on the ground that if is south of the Arkansas Eiver, in a tract of country ceded subsequent to 1814 by the Quapaws.” And Oommissioner Hendricks, in his letter of November 27, 1855, admits that “ it is satisfactorily established ” that Perci-full had performed such acts of inhabitancy and cultivation as were required by the law of 1814. His opinion, like that of his predecessor, is distinctly placed on the oth'er grounds, which I now proceed to examine. The Indian title supposed to have been held by the insignificant band of Quapaw Indians prior to the treaty of 1818 has always been put forward as the great obstacle in the way of PereifnlPs pre-emption claim to the land in controversy. In the case of Thredgül v. Pintará (12 How., 24) the Supreme Court seems to have taken it for granted that the Indians had a possessory right to the lands south of the Arkansas River, merely because they assumed to make a cession of thosel ands by the second article of the treaty, (7 Stat. L., 176.)
    Hut rlo such rights were reserved to the Indians by the treaty with France of April 30,1803, (8 Stat, L., 200.) By this treaty the United States agreed to respect all treaties which Spain had made with the Indians; but no treaty had then been made with the Quapaws.
    Spain had a system of laws and regulations by which the settlement of the country was sécured, and numerous grants were made utterly regardless of the Indian title. These grants were respected by the United States, and whether perfected or inchoate, or merely claimed by virtue of actual settlement, were confirmed by virtue of a long series of laws passed for that purpose. (Act October 31,1803, 2 Stat. L., 245, 251, 272, 283, 287, 2S8, 331,445 j Act February 20,1811, 2 Stat. L., 641, 743, 744; 
      Act ApnZ12,1814,3 Stat. L., 122; Johns on y. McIntosh, 8 Wheat., 543; Worcester v. State of Georgia, 6 Pet., 556; Marsh v. Broolcs, 14 How., 513; United States y. Fernandez, 10 Pet., 303; Martin y. Waddel, 16 Pet., 367.)
    The third section of the Act April 20,1832, entitled “An aet authorizing the governor of the Territory of Arkansas to lease the Salt Springs in said Territory, and for other purpose's,” is to this effect:
    
      “ That the Hot Springs in said Territory, together with four sections of land, including said springs, as near the center thereof as may be, shall be reserved for the future disposal of the United States, and shall not be entered, located, or appropriated for any other purpose whatever.” (4 Stat. L., 505.)
    It must be admitted that after the passage of this law no officer of the United States had any authority to permit the land to be entered; and the decision of Frisbie v. Whitney (9 Wall., 187) would seem. to establish the principle that any inchoate right which Percifull may have possessed under the act of 1814 was taken away or suspended by this reservation. Nevertheless, although the Government has power to violate its obligations and may refuse to carry out the law of 1814 in favor of an old settler, the moral and equitable right still remains and appeals to the sense of justice of the legislative and judicial authorities of the country. I think the act which permits these cases to be brought into this court opens the way to this claimant to assert and obtain his rights acquired under the act of 1814.
    Put this is not the first instance in which Congress has shown a disposition to do justice in the premises. The Act March 1,1843, (5 Stat. L., 603,) was passed for the express purpose of enabling the several claimants to the land at Hot Springs to assert their rights according to their respective validity and precedence. This law provides for New Madrid locations, pre-emptions under the act of 1S14, and Cherokee pre-emptions, all of which were then asserted in reference to the land now in dispute. The third section of the act is in these words :
    “ That every settler on the public land 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.”
    It has been very generally admitted that this act would fully remove the difficulty arising out of the assumed possessory right of the Quapaw Indians; and the principle is distinctly asserted by the Supreme Court in the case of Thredgill y. Pintará, (12 How., 37, 38.) The question must be considered as settled beyond further controversy.' It follows that the Indian title is no longer an obstacle, if it ever was, to the pre-emption right under the act of 1814.
    But I go further, and insist that this act of 1843 repeals the Reservation Act of 1832. Its object was to confirm the pre-emption rights south of the Arkansas River ab initio ; that is to say, it intended to place the settler in the position he would have occupied if the Indian title had been previously extinguished. That Indian title was the only obstacle at the time; and the professed object of the law of 1843 was to give full force and effect to the law of 1814 south of the Arkansas as well as north of it. This could not be done without a repeal of the reservation of 1832.
    “ A remedial act shall be so construed as most effectually to meet the end in view and prevent a failure of the remedy.” (Dwarris on 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.” (lb., 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 contrary to the former act‘in the very matter,’ and the repugnancy such that the two acts cannot be reconciled, for then leges posteriores pri-ores contrarias abrogante (Ib., 530, 531, and authorities there quoted.)
    The enactment of 1843 is that “every settler south of the Arkansas shall be entitled.” J ohn Percifull is one of these settlers, and he is included in the very words of thelaw, 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 WUcox v. Jackson, (13 Pet., 513,) and Gear v. The United States,.(3 How., 120.)
    Mr. Stanton examined these cases at some length, and insisted that they are nob applicable to tbe claim under consideration. He continued:
    But in fact this pre-emption claim of John Percifull on the land at Hot Springs was tbe only claim under tbe act of 1814 existing at tbe time of tbe passage of tbe law of 1843. It was so stated by Hon. Thomas A. Hendricks, Commissioner of tbe General Land-Office, in a letter dated January 26, 1859, and printed in Howard’s Beports, vol. 22, page 151. It is well known to all tbe parties to this, litigation and to tbeir counsel (at least to those of them wbo have long been engaged in tbe case) that tbe act of 1843 was passed at tbe solicitation of these claimants and for tbeir benefit. It now appears that at tbe time of its passage there was actually no other pre-emption claim under tbe act of 1814, south of tbe Arkansas, which bad not been settled by tbe issuance of a patent. Notwithstanding tbe pretended obstacle of tbe Quapaw title, numbers of pre-emptions bad been allowed south of tbe Arkansas, and that objection seems to have been reserved for the Hot Springs case after tbe property had become so valuable as to arouse tbe vivid interest of rival claimants.
    If there was no other case of a pre-emption under tbe act of 1814, in tbe territory south of tbe Arkansas, when tbe act of 1843 was passed, then tbe argument is irresistible that tbe law was intended for that case, and must be applied to it in spite of tbe reservation of 1832. No other case has been presented at tbe Land-Office; none other has been known or beard of.
    It is argued, on tbe authority of tbe case of Lytle v. The SfMe of Arkansas, that tbe decision of tbe register and receiver is final and conclusive. But this doctrine is not sustained by tbe cases quoted; and it is settled otherwise in numerous decisions in which tbe question has been presented in almost every variety of form. (Bernard's Reirs'y. Ashley, 18 How., 43;) Missouri v. Batcheldor, 1 Wall., 109; O’Brien v. Berry, 1 Black, 139; Lindsey et al. v. 'Raines et al., 2 Black, 554.)
    But this and all similar questions are set at rest by tbe act of 1870, referring these cases to this court. This reference must necessarily be for tbe purpose of trying tbe cases on tbeir merits and establishing tbe rights of tbe parties, if they have any, on tbe foundation of truth and justice, and not on mere technicalities.
    Our opponents also quote tbe dietum of Judge Catron in tbe case of Sale v. Gaines et al., (22 How.) In that case, however, the court held that it had ¿0 jurisdiction. Therefore all that was said outside of that point cannot be taken as authority ; but if they rely on that opinion of Judge Catron, it is fatal to Hector’s claim under the New Madrid location.
    It is very plain that, supposing there was any validity in this claim under the act of 1S30, it was cut off by the Reservation Act of 1832, and it was not revived or saved by the remedial act of 1843. It is also certain that Belding himself, in his lifetime, did not claim a pre-emption, but transferred his possession and abandoned the land. But the most remarkable feature of this case is presented by the fact that Belding was the tenant of Percifull at the time when his right under the act of 1830 is supposed to have accrued. In the investigation which took place in 1851 before the register and receiver at Washington, Arkansas, these two officers differed in their conclusions on Belding’s claim. The register decided against it on the following grounds:
    “ 1st. That Ludovicus Belding was in possession of the Hot Springs on the 29th day of May, 1830, not, however, in his own right, but as a tenant under and by virtue of a lease from John Percifull, who, it is shown, claimed said springs, and had possession of them.
    “ 2d. That said Belding did cultivate, or cause to be done, a portion of the land embraced in the quarter-section in which the Hot Springs are situated, but that he only acquired the right to cultivate said lands by means of said lease from John Percifull to him.
    “ 3d. That all the improvements which said Belding put on said quarter-section during the time he had possession were in accordance with an express agreement between him and Percifull that he should do so, and was the consideration on which Percifull leased the springs to him, and the said improvements were made for the use and benefit of said Percifull and not Belding. \
    “ 4th. That the purchase of the Millard houses was made by Belding for the use and benefit of John Percifull, and not for his own use and benefit any longer than the term of his said lease.
    “ And, lastly, for the foregoing reasons, and assuming the position to be correct, in law as well as good conscience, that the possession of the tenant is the possession of the landlord, I do not consider that said Belding was a settler or occupant of the southwest quarter of section 33, township 2 south, range 19 west, oh the 29bh day of May, 1830, or that he cultivated land on said quarter-section prior to that time, within the meaning and spirit of the law, and that consequently the heirs and legal representatives of said Belding are not entitled to enter said land by pre-emption under the provisions of the act approved 29th of May, 1830, or any act supplemental thereto.”
    These conclusions of the register are in conformity with the proofs in the case, and are undoubtedly sound and just. Nevertheless Belding’s representatives, Haines and others, were permitted by the Secretary of the Interior to enter the disputed land for the purpose, it was said, of enabling the parties to litigate their rights in the courts. But the entry made under these circumstances was very properly annulled by a succeeding Secretary. The parties interested tried to arrest the cancellation of their entry by a mandamus from the courts. The case was taken to the Supreme Court of the United States, and that tribunal sustained the act of the Secretary as legal and proper. .(Gaines v. Thompson, 7 Wall., 347.) It would be an extraordinary result in this case if Percifull’s tenant should be allowed to supersede his landlord and pre-empt this land under the act of 1830. Attorney-General Berrien, in 1830, was of opinion that “ the right of pre-emption belongs to the landlord. That a lessee cannot dispute the title of his lessor, and that the possession of the former is to be considered the possession of the latter, are. settled principles of law founded injustice and policy.” (Opin. Attys. Gen., 1791-1838, p. 722; Taylor on Land, and Ten., § 629; Williams v. Watkins, 3 Pet., 43; see Act June 1,1840, § 2, 5 Stat L., 382.)
    Many other cases might be quoted to the same effect, but the principiéis not disputed. In Lytle v. Arkansas, (22 How., 206,) the court say: ‘‘Neither could Gloyes be heard to disavow his landlord’s title. He held possession for Ashley, and was subject to be turned out on a month’s notice to quit.” It is unnecessary to add anything on this subject, except to say that it is now fifty years since this paper purports to have been executed, and no claim has ever been asserted by Paxton or any one claiming under him. The instrument may have been given as a mortgage with a mere verbal defeasance, and the debt was no doubt long since discharged.
    In 1820 an attempt was made by Henry M. Eector to locate the Langlois certificate on the Hot Springs land; but at that time Percifull was in possession under his pre-emption claim, and his wife was keeping a boarding-house at the springs. It is deemed unnecessary to make any argument on the question involved in this claim. The plat and certificate of the survey made in 1820 were not returned to the recorder’s office. This omission of itself, to say nothing of other objections, prevents any possible inchoate right or title to the land. (Bagnell v. Broderick, 13 Pet., 346; Barnes v. Gamble, 3 How., 51; Les-sieure v. Price, 12 How., 60; Sale v. Gaines, 22 How., 146; Sector v. Ashley, 6 Wall., 142; Sector et al. v. Gaines et al., 19 Ark., 70; Gaines et al. v. Sale & Sector, 26 Ark., 188.) The survey of 1S38 was in direct violation of the act of 1832, and, having been made while the reservation was in force, is entitled to little favor. If it was revived and rendered valid by the act of 1843, the prior claim of Percifull must be established with equal certainty by the same law, and by virtue of its origin in 1814 must take precedence not only of this but of all other claims,
    
      Mr. Albert Pike (with whom were Messrs. Sanborn & King) for Henry M. Eector:
    This claim is founded on the Sew Madrid Act of February 17, 1815, (3 Stat. L. 211.) By that act the location of a claim under it was to be made, on application of a claimant, by a survey. That survey was thus expressly declared to be the location, and it was so of course. The duty of the principal deputy surveyor, further, was to return to the recorder of land-titles “a plat of such location made,” with a notice designating the tract located and the name of the claimant. These the recorder was required to record in his office, report the claim allowed, and locations made, and grant certificates on which patents should issue. The Act April 29, 1816, (3 Stat. L., 325,) created the office of surveyor (afterwards called surveyor-general) for Illinois and Missouri. He was to furnish registers with plats of all lands that had been or might be surveyed, and copies of such plats to the General Land-Office. And all plats and surveys in any office before then established or authorized for the purpose of executing or recording surveys of lands in these Territories were required to be delivered to the surveyor-general, who was authorized to certify copies to be evidence in the courts. After this act went into operation, the surveys of New Madrid claims could no longer be returned by the deputy surveyors to the recorder of land-titles; they had to be returned to the surveyor-general. The recorder’s office was no longer the depository of any surveys. It was no longer necessary that the plats and notices sent him should be recorded by him. Before then it was, because if not recorded there they would be recorded nowhere. Consequently none were recorded there until 1830. The act of 1796 required public surveys to be recorded in a book; but the principal deputy surveyor was not required to record plats or surveys in a book. No provision of law ever required the surveyor-general to record surveys of New Madrid locations in a book, and surveys of French and Spanish grants were strictly private surveys. (Stat. of February 28,1826,2 Stat. L., 352.) After the passage of the act of 1816 the recorder of land-titles had no power to certify a copy of a plat or survey; and when a plat and notice came to him it was not for his approval, correction, or revision. He had no power in regard to it. When approved by the surveyor-general it was a finality. And after the passage of the act of 1816' all the surveys of private land-claims of every description were kept in the office of the surveyor-general for Illinois and Missouri. By law none could be retained in the office of the recorder of land-titles. And ■the Act June 16, 1832, (4 Stat. L., 531,) creating the office of surveyor of the Territory of Arkansas, required the surveyor for Illinois and Missouri to deliver to the new officer all the maps, papers, records, and documents relating to the public lands and private, land-claims in the Territory of Arkansas. There is no provision, nor ever was any, requiring any other office or officer to furnish such surveys.
    At the time of the passage of the New Madrid Act, the public surveys in Missouri not having even been commenced, it was of course impossible to make a location under it in accordance with the lines of the public surveys. The lands owned by individuals in Missouri then were held by French and Spanish grants, located and surveyed in every possible shape. On the rivers they bad generally so much front, more or less, and the lines ran back from the river for quantity. Sometimes they were defined by natural marks or boundaries, and they varied greatly as to the quantity of land contained in them. The New Madrid Act allowed the locations to be made, and provided for making them, in the same way; for if they could not be made in that way, they could not be made at all, and the law amounted to nothing.
    It was equally an annihilation of the law if lands owned by the United States, but not yet offered for sale, or not surveyed, were lands the sale of which was not authorized by law. The act permitted the claimants to locate, in lieu of these injured lands, a like quantity on any lands in the Territory “ the sale of which,” it said, u is authorized by law.” The Hot Springs of the Ouachita were at that time in the country afterwards quit-claimed to the United States by the Quapaw Indians. But before the location of the Langlois claim was made, their pretense of title had been extinguished by treaty. The first instrument given by Langlois to Story was actually a conveyance. It was a power to locate for his own benefit, and that alone would make it a conveyance in equity. In fifty such cases, upon like powers given in Arkansas, upon what were known as Lovely claims, under an act of 1828, legal title has been decreed by the courts of equity. The power here was coupled with an interest, was therefore irrevocable, was expressly declared to be so, and gave power to sell the land loeated and to relinquish to the United States the injured land. And the deed of Langlois and wife ratified the power and conveyed the laud. All the conveyances in this case are ancient ones, admissible as evidence without proof of execution, and, moreover, no one of those whose interests are affected by them is here contesting or denying them. The location was on lands the sale of which was authorized by law at the time of location aud survey; and it was not necessary that the public surveys should have been made. If the Attorney-General and Secretary of the Treasury had known the condition of the public lands in Missouri in February, 1815, the act of Congress would have been more correctly interpreted in 1820. But they were Virginians, and knew nothing about it; and the consequence was that they egregiously blundered, and the attorney, not in consequence of that, but for want of knowledge of legal princi-pies, blundered still more, and inexcusably. The Commissioner of the G-eneral Land-Office was a resident of New England, and his first attempt to restrict the beneficial operations of the act of 1815 was to instruct the surveyor-general at Saint Louis, on the 10th of July, 1816, that New Madrid locations could only be made on the tract of land of about one hundred townships that had been directed to be surveyed for the purpose of being offered for sale at Saint Louis; but he did admit that locations might be made before the public survey of the same, and that the form of the surveys was left to the discretion of the surveyor. (Instr. and Opin.) On the 15th of April, 1817, he advised the surveyor-general that land which the President had not directed to be prepared for sale could not with propriety be deemed lands the sale of which is authorized by law. (Instr. and Opin.) After the receipt by the surveyor-general at Saint Louis of the opinions of 1820 of the Attorney-General and the instructions of the Commissioner, he could not receive as an official survey that made by James S. Conway of the location of the Langlois claim. It being declared a location unwarranted by law, it could not become a record of his office. It was strictly a private survey under these rulings. He was expressly advised not to approve or recognize such locations, but that they might be withdrawn or amended so as to conform to the sectional lines. That location could not conform .to the sectional lines, for the adjacent country had not been surveyed, and was not until after or about 1836.
    The first opinion of Mr. Wirt, that locations of New Madrid claims must conform with the general plan of surveying the public land, was unwarranted by anything in the law of 1815, was utterly inconsistent with its purpose, intention, spirit, and letter, and was simply amendatory of legislation. It was not true in law; as he stated in June, 1820, that locations made in a square, before the sectional lines were run, were inadmissible. It was not true in point of law that the sale of lands was not authorized by law until the sectional lines were 'run, and that consequently all locations made previously to that were unauthorized. The act of 1815 meant and said that they might be made without reference to the public surveys; and under it the claims could be located in any shape that would give the quantity, and any where. And there was no warrant in law for holding, as the Attorney-General did, that permitting locations to be so surveyed as to make fractions was unauthorized by law, and the sale of the fractions so caused was illegal and void; for the location of many New Madrid claims, e. g., this for 170 acres and a fraction, could not possibly be located in any way without causing fractions.
    It was error on the part of the Secretary of the Treasury to hold and direct, on the 27th of November, 1818, (Instr. and Opin., 296,) that the Territory of Missouri, within the meaning of the law, meant the Territory as organized into counties, and that the pre-emption laws were only operative within the limits of organized counties. To those who are fond of lauding the earlier days of the republic, and comparing the men and the decisions of that day with the men and decisions of this, that would be an instructive book (and of no small size either) which should set down as plainly and briefly as possible all the unsound and even all the strangely illogical and absurdly preposterous decisions of the great Magistrates and men in great places of the earlier days of the republic, especially in the Bureaus and Departments. It was, most of all, an error of the Attorney-General to decide that the phrase, “ the sale of which is authorized by law,” rigidly required the sale to be authorized at the time of the passage of the law. The Supreme Court of the United States exploded that nonsense in Stoddard v. Chambers (2 How., 318) and Naston v. Salisbury, (3 How., 431.)
    For a consideration of the meaning of the word “ is,” we respectfully refer the court to the argument which follows.
    The Act March, 2, 1827, (4 Stat. L'., 219,) also enacted for the benefit of New Madrid claimant’s, provided<( that the locations of lands, heretofore made according to law,” by virtue of warrants issued under the New Madrid Act, not exceeding 640 acres in the whole, to any one sufferer, “ should be perfected into grants in the manner prescribed by that act, any construction thereof to the contrary notwithstanding.”
    It appears by exhibit A of the deposition of Hesse that Langlois obtained four certificates, numbered 270,271,467, and 470, on account of the injury to his land. His locations, therefore, including that on the Hot Springs, were among those intended to be cured by this act; and it was for a time held by the Secretary of the Interior that this act of 1827 healed locations made south of the'Arkansas, on lands claimed by the Quapaws. And, as this location was made according to law, it was confirmed by the act of 1827, and entitled from that time to be perfected by a patent. By the Act April 29, 1822, enacted not to remedy any defect in the act of 1815 or to legalize any locations made contrary to that act, but to remove out of the way the objections and misinterpretations, some ridiculous and even ludicrous, and all erroneous, of the high officers of the Government, locations not conforming to the lines of the public surveys were confirmed. In Barry v. Gamble (3 How., 32) the court held that locations could be made before lands were offered for sale, and even before they had been surveyed by the public surveyor. And it was broadly held that Lafiuer’s New Madrid location was rendered valid by the act of 1822, though the section-lines had not been run when the location was made.
    The Attorney-General made his never-sufficiently-to-be-admired decisions in regard to the word u is” on the 10th of October, 1825, and 4th of December, 1826; and long after the Supreme Court had exploded them, even in 1851, a Secretary of the Interior, contrary to the direct opinion of Mr. Attorney-General Cushing, deliberately renewed the absurd decision of Mr. Wirt, and applied it to this case. When the survey of the Langlois location had been made by the deputy surveyor, Rector and Hammond had a right to receive a copy of it. ■ It; was made in triplicate, and one of the parts was lodged in the surveyor-general’s office and the others retained. by themselves. These originals were found precisely where they belonged, in the custody of Rector, and in 1850 he lodged them in the office of the surveyor-general of Arkansas. If that which had been in the office had not been lost, it would have been of no higher dignity, nor more authentic. Elias Rector has been dead more than fifty years. The certificate and claim have been in his hands and possession, and those of his son, for one-half a century. If any conveyance of Langlois, Story, or Hammond is imperfect, or. not fully authenticated, or if any one is wanting, all that has been done will be presumed to have been rightfully done, and any necessary deeds or assignments will be presumed to have been made. (Btrotlier v. Lucas, 12 Pet., 452, 411; Lewis v. Baird, 3 McLean, 57; Hepburn v. Auld, 5 Cranch, 262; Mitchell v. The United States, 9 Pet., 712; Stod-dard v. Chambers, 2 How., 316.) And any claims of any of these parties and of all persons claiming under them will be deemed to have been abandoned, and tbe title of Rector to be rightful, under valid sales and cessions. It is too late to impeach these now. (Strother v. Lucas, 12 Pet., 452.)
    The rights of assignees are recognized by the Acts April 26, 1822, and March 1, 1843; and assignees have been always deemed to be the “legal representatives” of the original parties. (Instr. and Opin., 2, 3, 5, 83, 395, 740, 741; Galt v. Galloway, 4 Pet., 339; Lessee of French v. Spencer, 21 How., 226.) It is proven that the order for the survey was given. Such orders were simply instructions to the surveyors, and were not preserved. If it were not proved to have been given, it would be presumed. A survey is made by a surveyor under oath, and is eyidence as to all things that are properly within the line of his duty. (Flliott v. Pearl, 10 Pet., 441; Bussell v. Transylvania University, 1 Wheat., 432; Craig v. Bradford, 3 Wheat., 594; Taylor <& Quarles v. Broivn, ■ 5 Oranch, 234; Lessee of Hams v. Buchan et al., 1 Wash. C. 0., 191: Griffith v. Bradshaw, 4 Wash. O. C., 171.) That the protocols of the survey were in the possession of Rector in 1850, and have come from his possession, is the best proof of their genuineness. That is established prima facie by showing that the document comes from the proper custody, from the place and person where it might reasonably and naturally be expected to be found; from the custody of one who had an interest in keeping and preserving it. (1 Greenl. Ev., § 142; Bishop of Meath v. Marquis of Winchester, 3 Bing. N. C., 183; Neale v. Samples, 8 Ad. & E., 151.)
    The Supreme Court of the United States has decided and settled that the mere application to locate or for a survey is not a location in these New Madrid cases, and that is correct as to the cases where a survey was necessary. If the location were of one or so many particular subdivisions by the public surveys, the application would be itself the location. Where a survey was necessary, it was to be applied for and paid for by the party. It was a private survey; the plat and field-notes were his; the United States permitted its officer to make the survey for him. If, therefore, he did not follow up his application by procuring the survey to be made and returned, he did not sever any particular body of land, by fixed, defined, and specific limits, from the public domain. There are three steps in perfecting titles under the New Madrid act: the application to locate and for a survey; the actual survey; and the return to the office where such surveys are kept and belong of the plats and field-notes, which are the evidence of the location.
    The Supreme Court has never said that anything more than these three things was necessary to perfect a location. It has only been misinformed as to the place and office to which the surveys were returnable, where they were to be filed andremain, and' copies be thence procured. If the survey had been lost or destroyed ,on its way to the place of return, the location would none the less have been made. It would be the common case of the loss of evidence which could be supplied. The act of 1815 defined what the “ location ” of a New Madrid claim should be. The words of it are, u the location made, on the application of the claimant, by the principal deputy surveyor.” By his agent and instrument, the deputy surveyor, in the field, he located the claim by making the survey. If his approval of it was necessary to make the location complete, that approval, like any other ratification of the act of an agent, retroacted, and made the location complete from the date of actual survey. And when the survey had been returned to him to his office, and approved, his subsequent neglect to furnish' any other officer the evidence of it could not unmake the location. Under this act a location was effected precisely as it was under other and former laws, by the survey, and the return of it to the principal deputy surveyor or surveyor-general. (Act March 2, 1805, § 8, 2 Stat. L., 324; Act April 21,1806, id., 395; Act March 8,1807, id., 441; Act March 3, 1811, id., 663; Act April 12, 2814, 3 id., 121; Act April 18,1814, id., 137.)'
    When the law speaks clearly, it is usurpation in a court to make a thing or word mean more than the law expressly says it means. The Supreme Court has nob intended to do that. It has said that the land was never appropriated until the survey was returned, and considered that the return had to be made to the recorder, because he alone had to record the plat and notice. Perhaps the court was right if the act of 1816 had not changed that. It has never meant to establish any new principle in the law; and, although it has decided locations void because no plat and certificate had been returned to the recorder of land titles, it has been misled to do so by mistake of fact, and has given wrong judgment upon right principles. It has never held that the return of the survey to the office where it was to belong, to be received, filed, recorded, approved, and made a finality, was not a completion of the location. The cases are, Bagnell v. Broderic7c, (13 Pet., 436;) Stoddard v. Chambers, (2 How., 284;) Barry v. Gamble, (3 How., 32;) Lessieur v. Price, (12 How., 60;) Hale v. Gaines, (22 How., 144;) Rector v. Ashley, (6 Wall., 142.) We discuss these cases carefully in the argument that follows, to which we respectfully ask the consideration of the court. The recorder had nothing to do with making the location. He passed on the question of the party’s right to select and have other lands, and gave the official evidence of the right to location. Then he had nothing more to do with the matter until the evidence came to him, by the copy of the plat and the notice of the principal deputy surveyor or surveyor-general, that the location had been made. Then he had simply to perform the ministerial duty of issuing the patent-certificate. After the act of 1816 it was not even uecessary for him to receive the plat, and the notice that the location had been made, as shown by the plat. There is nothing in the world in these New Madrid claims, in the act of 1815, or in anything, anywhere, connected with them, that made inapplicable to their survey and location the settled rules of law, universally agreed to, in regard to the selection and location of lands under warrants or other evidences of right to select and have lands out of the common mass.
    That law, as defined by the Supreme Court of the United States, was that the validity of a survey did not depend on its being recorded; that a grant for so much land “is located by a survey made by a proper officer;” that the title to specific land under such a grant rests upon a designation of it, accompanied by a survey or description made by the surveyor-general; and that, in the cases of Spanish grants, where, on certificate and plat being filed with the register or recorder, patent-certificate was to be issued by him, the survey completed the right to a patent. (Smith v. The United States, 10 Pet., 333; West v. Cochran, 17 How., 413; Kessell v. Saint Louis Public Schools, 18 How., 25.) Where there was a confirmation by commissioners of a Spanish grant to so much land, the location and title were complete when the land was surveyed, and the survey apprroved at the suveyor-general’s office as a proper one. (Coiisin v. Blands Fxecutors, 18 How., 210; Bryan v. For-
      
      syth, 19 How., 334; Lessee of Lewis v. Meredith, 3 Wash. C. C., 84.) Everywhere and always it was held that where a warrant gave a right to a certain quantity of land, to be fixed and located at a future day by a survey, there was a location when the survey was made and returned. (Lessee of Lewis v. Meredith, 3 Wash. C. G., 84; Dubois v. Neivman, 4 Wash. O. C., 77.) When a survey was made, no matter at what length of time after filing of the application designating the lands and asking a survey, the survey related to the date of the application, when this would not prejudice any bona-fide title or right in another that, had intervened. As against‘the United States, the survey of one of the claims, made in 1859, related to the date of the application, filed prior to 1823, as if it had been made on the day when that was filed. All the several parts and ceremonies necessary to complete a conveyance are taken together as one act, and operate from the substantial part by relation. (Jaolcson v. MaeMichael, 3 Cow., 75; Caroley v. Wallace, 12 Mo., 145; Lands v. Brent, 10 How., 373.)
    This doctrine has its simplest possible application in cases of lands claimed by warrant and survey. The survey gives effect to the selection. It is the realization of it, and but for the just effect of relation, fraud would thrive, and a junior selection, with a survey sooner made, would take the land from the older applicant, because the surveyor chose to delay his survey. The Attorney-General and Secretary of the Treasury forbade the surveyor-general to send to the recorder of land-titles a copy of any survey like the one in this case. They did that wrongfully. If the claimant would be liable to suffer by the failure of the surveyor-general to do that duty, or by his own failure to see that the surveyor-general did transmit the papers, the United States cannot rely, nor can anybody claiming under it rely, on the failure of the surveyor-general to do what the highest authority forbade him to do, as a ground for holding that the location was not perfected. Some rules of honesty restrain even nations from knavery. (Lytle v. The State of Arlcansas, 9 How., 314; Taylor & Quarles v. Brown, 5 Cranch, 241; Coin. Gen. Land-Office, Instr. and Opins., 639; Craig v. Bradford, 3 Wheat., 494; Stringer v. Lessee of Young, 3 Pet., 338; Castellero’s Case, 2 Black, 97; Glasgow v. Sortie, 1 Black, 601.)
    There was no exchange of lands. The contract of exchange is in the nature of a mutual sale. The act of 1815 provided that upon the location of other lands the injured land should revert to and vest in the United States. This could be effected without conveyance, because all such lands were held by French and Spanish grants, and the United States had made no title. No relinquishment was necessary. The law required none. But officials are generally inclined to consider that they can mend the law’s defects, and the recorder of laud-titles, thinking that Congress had by oversight omitted to require relin-quishments, invested himself with the powers of Congress, and legislated to remedy this oversight. An exchange of lands is of the nature of a contract of sale. Each party is both buyer and seller, and each warrants against eviction and incum-brances. (Pothier, Traité du Oontr. de Yente, part YII, art. Y, Nos. ,618, 620, 621, 623; L. 2, Code, de rer. permut; L. 2, ff. de permut; L. 1, § 1, ff. de contrah. empt.; L. i, Princip. ff. de contrah. empt.)
    The United States received, more than fifty years ago, a relinquishment of the land of Langlois. The Supreme Court has held a location invalid where there was no relinquishment, and has said, in Lessieur v. Price, that there must be “a concurrent vestiture of title,” and “the injured land must have vested in the United States at the time that title was taken by the new location.” In every such transaction (if the transaction was an exchange) there must be mutuality. If there is no location until the United States takes title, then it cannot by objections almost fraudulent, because utterly without ground of law or reason or common sense, but having the ponderous authority of superior power, defeat the location and retain the injured land. The United States have had the Langlois land, for which Hammond and Rector paid, fifty-five years ago, $640, (Rector, in fact, $600 for half of it,) during the same long space of time. To what would that money amount at compound interest? Holding the injured land, the Government could no more, by the Reservation Act of 1832, prevent Rector from perfecting the location by a new survey than it could rely on the failure to do what the surveyor-general was ordered by his superiors not to do. The Government’s own act reserving the lands from sale cannot be its muniment of title to retain the land which was selected and surveyed in lieu of that relinquished. For what was the act of 1832 but a mere declaration that the United States would bold and not sell tbe laud % The surrey made in 1838 could be valid only as a resurvey of that of 1820. The surveyor-general had no power to order it for the purpose of locating the claim, because the reservation of 1832 prevented that. And he had no right to close the public surveys on any other than the old lines, or to have it surveyed at all without reference to those lines.
    Six objections have been set up against thisjelaim or applied to it, and prevented obtaining a patent. Not one of them ever had any validity or found any support in law or fact. We present and reply to them as follows:
    That the location was invalid, because made in a square, and before any public survey of the neighboring lands; the law of 1815 requiring all locations to conform to the lines of the public surveys.
    This objection was removed by the Act April 26,",.1822,. entitled “ An act to perfect certain locations and sales of the public lands in Missouri,” (3 Stat. L., 668,) which provides that the locations theretofore made of warrants issued under the act of 1815, if made in pursuance of that act in other respects, should be perfected into grants in like manner as if they had conformed to the sectional or quarter-sectional lines of the public surveys. That objection therefore disappeared as to all such locations.
    That locations of New Madrid claims could be made only upon lands that had been directed to be surveyed for the purpose of being offered for sale at Saint Louis; the act of 1811 directing that the lands so surveyed should be offered for sale. That lands which the President had not directed to be prepared for sale were not lands the sale of which was authorized by law.
    • These were one and the same objection; the atteznpt to limit the location of New Madrid claims to the lands that were to be-sold at Saint Louis resting on the fact that these were the only lands that had been directed by the President to be surveyed.. The one question, therefore, was whether the sale of lands was “ authorized by law ” as soon as a law was enacted providing for their survey and sale at such future times as the President should be pleased to designate, or whether it was not so until he had actually directed the survey. The New Madrid Act gave the right of location in very general terms, “on any of the public-lands of tbe said Territory the sale of which is authorized by law,” lead mines and salt springs being excepted. It is the law by which lands are authorized to be sold thereafter, at the direction of the President as to time, by which their “ sale is authorized by law.” (Ordinance of July 9,1788; Old Journals, iv, 832. Act May 26,1824, 4 Stat. L., p. 50, § 5 ; Act May 18, 1796, 1 id., 464; Act May 10, 1800, 2 id., 737 ; Act March 3, 1803, id., §§ 10, 11, 12, p. 232; Act March 2, 1805, id., § 7, p. 320 ;• Act March 31,1808, id., § 1, p. 480. And as conclusive, Act February 15, 1811, id., §§ 6, 8, 9, 10, p. 665; Act March 3, 1811, id., 663; Act March 11, 1820, 3 id., 577; Act February 17, 1818, id., 406; Act April 24, 1820, id., 566.)
    The Acts of February 15,1811, and March 3,1811, (2 Stat. L., 663,665,) authorized the sale of all the lands in the whole Territory of Missouri without further legislation; and from the date of the former act the sale of all lands in the Territory was “ authorized by law,” with such exceptions as the laws expressly made.
    That the Territory of Missouri, within the meaning of the Pre-emption Act of 1814, was the Territory as organized into counties ; and that when the New Madrid Act passed, no part of that Territory south of the river Arkansas had been organized into counties. This notion was absurd, and, if there had been anything in it, the Hot Springs were in 1820 in the organized county of Clark.
    That the location of a New Madrid claim could only be made on lands the sale, of which was authorized by law on the 17th day of February,, 1815, when the New Madrid Act was passed, and that the sale of the lands south of the river Arkansas was not authorized by law while the Quapaw title remained unex-tinguished, as it did until August 24, 1818. This conceit of Mr. Wirt had no foundation in law or in the rules of syntax. The word “ is ” is often used in a future sense. On all this question we respectfully refer the court to our argument. (Ordinance of May 20, 1785; Act March 3,1803, 2 Stat. L., 230; Articles of Confederation, art. 7; Constitution, art. 3, § 3; Stoddart v. Chambers, 2 How., 284; Barry v. Gamble, 3 How., 32; Bissell v. Penrose, 8 How., 317; Watts v. Stoddard, 8 How., 345.)
    The laws in force in 1820 empowered the President to cause to be surveyed and sold any lands the Indian titles whereto might at any time be extinguished. The Quapaw title was extinguished in 1818, and from that moment the sale of the lands which they had claimed was u authorized by law.” (Act March 3,1811, § 8, 2 Stat. L., 665; Act May 13,1796,1 id., 464; Act April 29,1816, 3 id., 3; Act February 17, 1818, 3 id., 406 ; Act April 5,1826, 4 id., 153; Act March 2, 1827, 4 id., 235; Opin of Atty. Gen. Legaré, 3 Opins. Attys. Gen., 705; Act February 17,1818, 3 Stat. L., 406.)
    That the reservation contained in the act of 1832 was not set aside or recalled or rendered no longer applicable to the Lang-lois location by the Act March 1, 1843, (5 Stat. L., 603,) because the latter was general and the former special, and because the latter only proposed to cure the single defect of the non-extinguishment of the Quapaw title at the time of the passage of the New Madrid Act. That act (5 Stat. L., 603) removed an objection illegally interposed twenty years before to the issuance of a patent on the location of the Langlois claim ; It applied to all locations and pre-emptions south of the Arkansas Liver. It did not, in reality, in the least enlarge the right of Lector or remove any legal bar or objection to the claim ; for it was not located until after the Indian title was extinguished, and when the sale of the land was authorized by law. But the objection had all the time been in the way that the Indian title was not extinguished when the New Madrid Act passed, in 1815, and that the sale of the land was not then authorized by law. As to the Percifull pre-emption, the act removed a legal objection. As to the Langlois location, it removed an illegal one, but which in fact prevented the issuing of a patent. If the act of 1843 had removed, in this case, an objection that really applied to the case aiid was valid, then, perhaps, as the claim was, on account of that valid objection, not a valid claim prior to the act of 1843, that act would not have operated to annul the reservation. But, as to this claim, the act of 1843 removed no valid objection, cured no actual defect. That the Indian title was not extinguished at the date of the Neio Madrid Act never was a valid objection, if it was extinguished before the location. Wherefore the act of 1843 did not confirm an invalid location by curing a real defect'in this case; it did not give any new right or title or add any new or increased validity to the claim. So that the reservation of April 20,1832, (4 Stat. L., 505,) was not recalled or set aside by this act of 1843, so far as this claim, is concerned. The latter act simply left the claim as it stood before that reservation, declining longer to rely on the only objection to it that existed at that time, and which was one whereof to be ashamed. The act of 1832 provides that four sections of land, including the Hot Springs, shall be reserved for the future disposal of the United States, and shall not be entered, located, or appropriated for any other purpose whatever. If the effect of the removal of the illegal obstacle interposed by Mr. Wirt is to enable Rector to assert his good title, there is, of course, neither entry nor ■ location nor appropriation of the land. He does not enter it. His father had located it twenty years before, and it had then become absolutely his. It had been appropriated then by the location.
    It must be clear that the declaration in the act of 1832, that the United States would not sell until they should see fit to sell the land, could not stand in ’the way of the removal of an obstacle unjustly interposed to prevent or delay the obtaining a patent upon a good and valid location made long before. Whether the act of 1843 was general or special, it unquestionably removed that obstacle as to all cases. None are excepted. The effect of the removal in a given case is another question. The Act March 1,1843, (5 Stat. L., 603,) provided that u the locations heretofore made” of warrants issued under the New Madrid Act, upon lands south of the Arkansas River, if made in pursuance of that act in other respects, (as that of the Lang-lois claim was,) should be perfected into grants, in like manner as if the Indian title to such lands had been completely extinguished at the time of the passage of that act. The effect of this was to make, by relation, those locations valid ah initio, precisely as if, in the very words of the law, there had never been any Indian title in the way. And this intention is even more clearly shown by the second section, which gave the claimant, in case his location had been sold, the right to enter a like quantity of land anywhere in Arkansas; that is, the law virtually déclared that the objection that the Indian title had not been extingnished at the passage of the New Madrid Act never was valid, if it had been extingnished when the location was made, and if in that respect, as well as in all others, the location had been made in pursuance of law. Else why compensate the claimant for the loss of lands sold by the Government, to wliich he had no title by a valid location? (Opin. of Atty. Gen. Legaré, December 7, 1841, 3 Opins. of Attys. Gen., 720.; Opin. of Atty. Gen. Johnson, 5 Opins. Attys. Gen., 236, 237; Opin. of Atty. Gen. Cashing, 6 Opins. Attys. Gen., 700.)
    The question is not of repeal. The act of 1832 is not repealed. The question is whether, when Congress removed the valid or invalid objection of the existence of the Indian title in 1815, and declared that the locations south of the Arkansas should be perfected into grants, precisely as if that title had not then existed, this did not reach back and confirm the location ab initio. If it did,, then it was made to have been a good title by valid location before the reservation, and that reservation did not apply to it any more than it would have done if the objection of Indian title had never been made or had never even existed. If the statute did not retroact, then intervening preemption claims would defeat the location, and it could not be perfected into a grant, in like manner as if that Indian title had never existed. If it did not, the effect of the act was to make a grant, and not to perfect into grants locations made twenty-five years before. Every ratification retroacts, and is equivalent to a mandate. It makes the act of the agent to have been all the time ab origine the act of the principal. It reaches back and, by relation, cuts out intervening liens, incumbrances, and titles. Here the retroactivity is express. The locations are not made good from henceforward, but as though the Indian title had never existed, for the past as well as the future, and must be everywhere held to have been always good.
    
      Mr. Joseph Oasey for McKa3r & Gift:
    Before the cession of Louisiana, Francis Langlois, a Creole, was the owner of 200 arpents of land on Bayou Saint John, Hew Madrid district. On 8th April, 1805, Langlois conveyed to Joseph Michel original deed produced in court and filed. Michel died, having devised it to his wife and children. The title was confirmed by Louisiana commissioners in 1811, and certificate of location 1076 issued June 20, 1811. The land was injured by earthquake, and on proof the recorder of land-titles at Saint Louis issued New Madrid certificate No. 467, under Act February 17, 1815, in the name of Francis Langlois. On 5th August, 1818, Bobert McCoy, executor of Michel, made a deed of relinquishment of the 200 arpents on Bayou Saint John to the United States. By regular conveyance the Michel title is vested in McKay and Gitt. November 10,1818, Langlois made a power of attorney to Joseph Story. July 12,1819, Langlois and wife conveyed the land to Story. February 24, 1821, Joseph Story assigns his right in the premises to William Hammond and Elias Rector. January 27,'1819, Hammond and Rector applied to have certificate No. 467 located upon the locus in quo. July 16,1820, survey made; afterward returned to surveyor-general and approved by him.
    No plat was returned to the recorder of land-titles or notice in writing given, as required by the act of 1815. In 1838, when the public surveys were made in that region, these lines were retraced, a resurvey made, and returned into the Land-Office' at Washington. (See record, p. 63.)
    I make three points in this argument:
    First. Whether the Hot Springs tract was subject to entry on this New Madrid certificate. Second. Whether the entry was made in conformity with law. Third. And, if not, whether there is such an equity in the New Madrid claimants as forbids the United States, in this case, from setting up against them any legal defects in their title.
    I.' Whether the locus in quo was subject to entry in 1820 by this certificate. The Indian title had been extinguished in 1818 by the treaty with the Quapaws, and therefore, at the date of location, this was not in the way.
    It is insisted, however, that to have authorized the location of this New Madrid certificate on these lands, the Indian title must have been extinguished on the 17th February, 1815, the date of the Neto Madrid Act; that the act contemplated an exchange of lands, and all incidents necessary to work this transmutation must have existed complete on that day; and that all the subsequent acts necessary to complete and perfect the exchange related back and had reference to that time. Such was the opinion of Attorney-General Wirt and the Land-Office. This narrow and technical construction of an act of private and public beneficence could not stand the test of judicial interpretation. But Congress, in the passage of the Act March 1,1843, (5 Stat.- L., 603,) has precluded all argument on that question. It emphatically declares that no such limitation and restriction were intended.
    
      II. Was the sale of this land so authorized by law as to allow of our location of this certificate upon it?
    This is denied upon the ground of the settled general policy of the United States to preserve the legal subdivisions of the public lands. This policy, so far as it was just and practicable, we admit. But our public-land system is full of exceptions to it, and especially in the public lands ceded to us by Spain, France, and Mexico. In all those instances the United States were bound by treaties to recognize the grants and concessions made by those nations before the# concession. In the very region where the . premises in dispute are situated numerous Spanish, and French grants existed. They had been confirmed, located, and surveyed, in all sorts of irregular figures and shapes, to comply with the original description, and that in many instances long before the public surveys, and even before the extinguishment of the Indian title. But the Act April 26,1822, (3 Stat. L., 668,) sweeps this objection away. It provides that they “ shall be perfected into grants in like manner as if they had conformed to the sectional or quarter-sectiona.1 lines of the public surveys.” It also authorized the sale of the fractions abutting on these irregular surveys.
    The second section expressly enacts that thereafter the surveys on these New Madrid certificates shall conform to the lines of the public surveys as nearly as the quantities will admit. This was intended to change the law, and is a clear, distinct legislative recognition that it was different before.
    This provision was wholly superfluous and unnecessary if the law was before as the then and now Attorneys-General contend.
    From these general premises I conclude that the land in controversy was subject to location in 1819 and 1820 by the New Madrid certificate.
    III. Was the location made in conformity to law ?
    Thisis undoubedly the pinch of thiscase. The SupremeOourt, in several cases, has carefully construed the second proviso to the first section of the Act February 17, 1815, declaring that the injured lands, where the location is made according to the act, u shall revert to and become absolutely vested in the United States,” that certain things are necessary to work this transmutation of title. Among these requisites is “ that a plat of location made by the surveyor shall be returned to the recorder of land-titles, together with a notice in writing designating the tract located and the name of the claimant.” (Bagnell v. Brod-ericlc, 13 Pet., 436; Barry v. Gamble, 3 How., 32; Lessieur y. Price, 12 id., 59; Rale v. Gaines, 22 id., 144; Rector v. Ashley, 6 Wall., 143; McKay v. Raston, 19 Wall., 619.)
    These and othér cases solemnly decided by the Supreme Court stand unreversed and undoubted, and bear directly on the point. They stand like a wall of adamant against the legal positions assumed on this branch of the case'by the distinguished counsel for Hector. To rest the case upon his theory is to give it up. . To sustain the New Madrid title, we must have something more tangible and substantial.
    IY. Is there an equity which the court can recognize i.n this case as against the United States ? Does the act under which the cause is being tried in this court authorize it to uphold and enforce an equitable right as against the United States ? This is necessarily so; for it was known to Congress when the Act June 11,1870, was passed that the legal title still remained in the United States. But the first section expressly provides u that any person claiming title, either legal or equitable, to the whole or any part of the four sections of land, &c., may institute against the United States in the Court of Claims, and prosecute to final decision, any suit that may be necessary to settle the same.” These suits are to be in the nature of a bill in equity, to be governed and conducted by equity rules and principles; 'and the court is invested with the jurisdiction and powers of a court of equity necessary to give “ full relief in any such suit.”
    Where different claimants bring such suits, the cases are to be consolidated, and “ the court shall determine the question of title, and grant all proper relief as between the respective claimants, as well as between each of them and the United States.” The fifth section, directing how any decree may be carried into effect, completes the almost unlimited powers conferred upon this court in this controversy. Eecognizing the fact that the legal title is in the United States, it directs, in case the decree be in favor of any'of the claimants, not only that they be put into possession of the premises, but requires the Secretary of the Interior to issue a patent to such successful claimant. Is there in any of these parties claiming under the New Madrid certificate such an equity as under this forbids from setting np a technical defense, or a mere naked legal title to defeat this equitable right ; and, if so, what are the equitable considerations ! I enumerate:
    First. In the Act February 17,1815, the United States made a solemn pledge to us to make us a grant in lieu of our land destroyed by earthquake.
    Second. Relying upon this solemn pledge, we conveyed the title and surrendered the possession of our injured lands to the United States, and accepted in lieu of it the certificate laid upon the premises in dispute.
    Third. The United States received and accepted this deed.of relinquishment, and have at no time returned or offered to return the title or possession, but have kept both for more than fifty-six years.
    Fourth. A lawful survey made by the proper officer, and certified to the General Land-Office.
    Fifth. The non-return to the recorder of the plat and notice resulted from the illegal and mistaken opinions and instructions of the Attorney-General and Commissioner of the Land-Office.
    Sixth. It would be most unjust and inequitable for the United States to insist upon that as a defect in our title which their officers rendered impossible for us to have done.
    Seventh. If the Land Department and Attorney-General had not interfered and prevented the return of plat and notice of survey, they would have been made. And equity will consider as done what in good conscience and justice ought to have been done.
    Eighth. If on the 20th July, 1820, we were entitled to have the plat returned and notice of survey filed in the office of the recorder of land-titles, and the United States officers, through mistake or wrong, prevented it, our title was then complete in equity.
    Ninth. For more than fifty years the United States have allowed us to hold and improve these premises, under the exchange we made with them, without let or hinderance, or even a notice to quit. Is not this a presumptive confirmation and ratification of. our title in equity ?
    Tenth. The resurvey by Hale, in 1838, the patent-certificate by the recorder of land-titles, and the opinion of the Attorney-General in favor of the location.
    Eleventh. The platting of the public surveys upon this loca-tiou, substantially, iu 1838; itsapproval by the surveyor-gen eral; returned to the Land-Office, and ever since recognized by the United States as the true and official survey of the land, with its surrounding fractions.
    Twelfth. By Act April 26, 1822, the New Madrid certificate was void after April 26, 1823, and can be located on no other lands; and, unless our equity is recognized here, we lose our injured lands conveyed to .and disposed of by the United States, and get nothing in return.
    Thirteenth. The legislation in 1822 and 1843, to confirm the location and remove objections made against it.
    These facts appear to create and constitute such an equity as is contemplated by the act giving jurisdiction in these cases.
    If the cases were between private individuals, I should be entirely confident of this. There is uo reason why these principles shall not apply against the United States in this case. For, says the act, these suits against the United States “ shall be conducted and determined in all respects according to the rules and principles of equity practice and jurisprudence in the other courts of the United States.”
    Y. If there be an equitable title uuder this New Madrid certificate, in whom is that equity ? Is it in Hector, or McKay and G-itt ? This depends upon three questions:
    Is McKay and Gitt’s or Hector’s the older or better title ? Hammond or Hector pretend to no title or right till Story’s assignment, January 4,1819, aud his deed of February 24,1821. We show a conveyance of the land by Langlois to Joseph Michel, through whom we claim, in 1805. Being prior in time, is stronger in right, unless destroyed by some defect or omission.
    Was recording necessary to give effect in this suit to deed of 1805, under the Act March 2,1805, § 5, (2 Stat. L., 344,) and the various extensions and re-enactments in 1806,1807, 1812, and 1813 ? The penalty for not recording is that such deed shall not “ be considered or admitted as evidence in any court of the United States against any grant derived from the United States.” (Act June 13,1812,2 Stat. L., 751; Act Februry 27,1813, § 2, 2 Stat. L., 807, repeated in Act May 11, 1820, 3 Stat. L., 574.) This construction is sustained by United States v. Powers’ Heirs, (11 How., 585, 586.) None of these parties claim under grants from the United States, and none have the right to invoke the benefit of these acts. All stand upon the same level.
    
      Besides, under the New Madrid Act, only the owner of the injured or destroyed lands bad any right to the certificate. (Rector v. Ashley, 6 Wall., 142.) The deeds and transfers of Story and Langlois to Rector vest no title in him. The relinquishment to the United States raised no equity; for, having no title, he could neither convey nor relinquish any. It was simply a fraud on the deed of 1805 to Michel. It is only when Rector’s location and survey is backed up and supplemented by Michel’s title and McCoy’s deed of relinquishment to the United States that he can claim a spark of either legal or equitable right to these premises. In addition, he shows no scintilla of title from Hammond. That part appears to be gobbled up in the same way they have our certificate. We, as the owners, may come in, as we do in this case, and adopt the location. We show a relinquishment before Story’s, by McCoy, executor of Michel, iu whom was vested the undisputed title. This conveyed the title to the injured lands to the United States, and not Story’s deed. It was our land, and we gave it up, and therefore the equity is all with us. (See Hector v. Ashley, 6 Wall., 143.)
    We can adopt the acts of Rector and Hammond; and, if even they had received a patent, it would inure to our use and benefit. (Minnesota 'v. Batchelder, 1 Wall., 109 ; Stark v. Starrs, 6 ib., 402; Silver v. Ladd, 7 ib., 219; Johnson v. Towsley, 13 ib., 72-,)
    
    There is not the faintest spark of abandonment in the case; the owners have never lost sight of it; there never was a time till now when these men could have asserted their title in a judicial proceeding; they only had an equity; the legal title was and still is in the United States. No statute of limitation bars them; no presumptions outlaw them; no spark of evidence of abandonment exists in the case. He who asks equity must do equity. We concede that Mr. Rector may justly and equitably be entitled to consideration for services rendered and expenses incurred in the prosecution of this case and in the maintenance of the title generally. The powers of the court are ample to so mold its decree as to meet every aspect and exigency of the case.
    
      Mr. JJ. II. Blackburn for John H. Russell:
    Russell claims under Henry M. Rector, by virtue of a deed of conveyance executed in due form, and properly acknowledged, bearing date March 5, 1867. More than $1,000 of the purchase-money was paid at the time the deed was executed and delivered, (viz, March 5, 1867.) The execution and delivery of this deed are admitted by Henry M. Hector in his supplemental petition filed July 1,1873, page 5, and are proved by the depositions of John H. Russell and E. W. Rector, who also prove the payment of more than $1,000 by Russell to Rector at the time of the execution and delivery of said deed. The words of this instrument are free from ambiguity; they'are clear and explicit; and no evidence is admissible, aside from the deed itself, for the purpose of explaining it according to the surmised or alleged intention of the parties. (Sayre v. Pede, 1 Barb., S. C., 464; Morris v. FAwards, 1 Ohio, 206; Smith v. Thompson, 8 C. B., 44, 59; Poe v. Westlalce, 4 Barn. & Aid., 57; Morley v. Bouthly, 3 Bing., 107, 112; Arms v. Ashley, 4 Pick., 71.) Henry M. Rector, for defense to said deed, relies upon a deed from Russell to him, executed the same day, and claims that the two deeds constitute one transaction. This claim is wholly unwarranted, as will be observed from an examination of the instrument. The second deed — that is the deed executed by Russell — was a nullity from its inception. No money was ever paid by Rector to Russell. This agreement was based upon a promise by Russell to secure legislation throifgh and by his means and personal influence. Rector had been somewhat active in aiding the late confederacy in attempting to destroy the United States. Russell had remained loyal to the United States, and was therefore supposed to have influence with members of Congress, and such influence he was to use in obtaining legislation by Congress to the mutual benefit of both the contracting parties.
    Courts of justice never enforce such contracts, but hold that they are null and void. (Tool Company v. Norris, 2 Wall., 45; Fuller v. Pana, 18 Pick., 472; Gray v. Sanie, 4 Com., 449; Marshall v. The Baltimore and Ohio Railroad Company, 16 How., 314; Bryan v. Reynolds, 5 Wis., 200; Sarris v. Roof, 10 Barb., 489; Rose v. Truax, 21 Barb., 361; Wood v. McCann, 6 Dana, 366 ; Clippings v. Sepbaugh, 5 W. & S., 315; Frost v. Inhabitants of Belmont, 6 Allen, 152; Sedgwiolc v. Stanton, 4 Kern., 289.)
    The deed from Rector to Russell was an absolute conveyance, and upon its delivery on the 5th day of March, A. D. 1867, all the right, title, and interest of Rector in and to the property in dispute became vested in Bussell, and the second deed did not affect Bussell’s interest.
    The second deed contains a proviso which, if the two deeds are to be taken and construed together, makes Bussell’s interest a conditional estate — an estate subject to defeat by a condition subsequent, a condition which was impossible at the time of making it. Francis Langlois was dead many years before, and it was impossible for Bussell to procure legislation to perfect the title of the property in dispute in and to a man who had been many years dead. It was not possible for Bussell to control the Congress of the United States. That body would legislate, not as Bussell demanded, but as the members thereof saw proper, and the condition in said deed contained was impossible at the time it-was made, and ever remained impossible, and the estate of Bussell, being vested, was not divested, but became absolute. (4 Kent’s Com., 9th ed., 147.) Moreover, conditions subsequent are never favored in law, and are construed strictly, because they tend to destroy estates. (Mer-rifield v. Gobleigh, 4 Cush., 178.) And a court of equity will not lend its aid to divest an estate for the breach of a condition subsequent. (4 Kent’s Com., 9th ed., 147.)
    
      Mr. John Wilson and Mr. F. M. Mumford for W. H. Gaines et al. :
    
    This claim is to the southwest quarter of section 33, in township 2 south, of range 19 west, of the fifth principal meridian in the Washington land-district, Arkansas, except those claiming under the New Madrid location of Francis Langlois, which claim extends into and covers part of the northwest quarter of section 33, and of the northeast and southeast quarters of section 32, excluding also part of the east and south portions of the southwest quarter of section 33, all in the same township and range.
    The land now in controversy was included within the boundaries of a land-district established by the Act February 17, 1818, (3 Stat. L., 406.) At that time it belonged to the Quapaw Indians, and was ceded by them to the United States by a treaty made 24th August, 1818, ratified January 5, 1819, (7 Stat. L., 176.) A register was commissioned for the land-district above mentioned on the 19th February, 1822, and a receiver on the 4th March, 1824; and the lands, including this tract, were surveyed by John C. Hale in the first .quarter of 1838, under contract of 9th May, 1837. The Act April 20,1832, third section, (.4 Stat. L., 505,) directs that11 the Hot Springs, * * * together with four sections of land, including said springs, as near the center thereof as may be, shall be reserved for the future disposal of the United States, and shall not be entered, located, or appropriated for any other purpose whatever.”
    The first claim in the order of date is that of John Percifull, under the Act April 12, 1814, (3 Stat. L., 122.)
    The provisions and regulations directed by the act of 181.3 are substantially that the claimants shall file a written notice of their claims with the register of the land-office, and shall enter the same with the register at least two weeks before the commencement of the public sales ; and every person failing to do so shall forfeit his right of entry. Percifull cannot possibly have any claim to this land, because it was rightfully claimed, owned, and held by the Quapaw Indians at the date of the law under which he claims, as evinced by the subsequent cession of it to the United States, and therefore was not within the purview of the act of 1814; further, because it has not been shown that he had actually inhabited and cultivated it, the proof only showing that he claimed it, while his home was several miles distaut; and, finally, because he did not file the notice and make the entry in the manner and within the time prescribed by the law. The public sales of the lands in this neighborhood commenced 19 th August, 1839, and the testimony in support of this case was taken at the house of one Carson, in Hot Springs, in 1838, but there is nothing to show that notice of it was filed, as required by the law.
    The laws regulating trade and intercourse with the Indian tribes positively prohibited settlements from being made on Indian lands under severe penalties : and these were certainly Indian lands till 1818 or 1819, when they were sold to the United States by treaty. (See Act March 30,1802, § 5,2 Stat. L., 131.)
    This act remained in full force till repealed by the Act June 30, 1834, (4 Stat. L., 729, § 27, p. 734,) and would have been violated if Percifull had made the settlement claimed to have been made by him.
    The decisions of the court bearing on the Indian fight of occupancy and possession are found in the cases of Danforth v. 
      Wear, (9 Wheat., 675;) The Cherokee Nation v. The State of Georgia, (5 Pet., 1;) Worcester v. The State of Georgia, (6 Pet., 517;) Clark v. Smith, (13 Pet., 195;) Treadgill v. Fintarcl, (12 How., 37;) and numerous decisions of the State courts.
    The next case in chronological order is that of Francis Lang-lois, under the Act February 17, 1815, “ for the relief of the inhabitants of the late county of New Madrid, in the Missouri Territory, who suffered by earthquakes. (3 Stat. L, 211.) Henry M. Rector, George McKay et al., William H. Russell, John C. Hale, and John H. Russell claim under Langlois. The claim of Langlois, however, will be considered without reference to the respective' rights of those who claim under him.
    Langlois’ claim or right was not assignable, (see Attorney-General Wirt’s opinion of July 10, 1816,) and yet Langlois himself has uot appeared át any time in it, the whole proceedings under that claim having been managed by persons claiming to be his assignees.
    It is alleged that this claim of Langlois for 200 arpents was surveyed by James S. Conway, deputy surveyor, so as to include these Hot Springs as nearly in the middle of the survey as possible, on the 16th July, 1820, under instructions from William Rector, surveyor-general of Illinois and Missouri, including the then Territory, now State, of Arkansas. No copy of any such instructions has been shown or alleged, as far as we are advised, though all instructions for surveys of any kind, and especially of this character, were uniformly given in writing, forming portions of the records of the department, as they were all recorded. Without such instructions a deputy surveyor had no power or right to make a survey, and a survey so made was a violation of law. Adopting either of those dates, the survey was illegal and void, as it was not authorized bylaw. The first section of the Act February 17,1815, making this grant, authorized such locations to be made on lands the sale of which is authorized by law. The sale of lands is not authorized by law till the Indian title is extinguished, till they have been surveyed, a laud-office established, and the land-officers appointed. (See Act March 3, 1811, 2 Stat. L., 665, and opinions of Attorney-General Wirt of May 11 and June 19 and 23, 1820, and decision of the Supreme Court of the United States in Barry v. Gamble, 5 How., 52.) This land was included in a land-district established by the Act February 17, 1818, (3 Stat. L., 406;) but at that time this tract belonged to the Qua-paw Indians, and was ceded to the United States by those Indians by treaty made August 24, 1818, and ratified January 5, 1819, (7 Stat. L., 176,) the date of the ratification being that of the extinguishment of their right of occupancy. The register of the land-office was not commissioned till February 19, 1§22, and the lands were surveyed by John C. Hale in the first quarter of 1838, under contract of May 9,1837. The act of 1815 made it the duty of the surveyor-general, if such survey or location was made, to return a plat of it to the recorder, together with a notice in writing designating the tract located and the name of the claimant in ivhose behalf such location was made. The legal presumption is that a public officer, acting under the solemnities of an oath, performed the duties required of him by law; and as there is no evidence that any such return was made by the surveyor-general to the recorder of land-titles, nor even an allegation to that effect, till after Hale’s survey of this township on February 28,1838, the legal inference is irresistible that no such official location or survey was made of this claim of Langlois at the time thus claimed. The survey of Langlois’ claim was recorded by the recorder of land-titles at Saint Louis on June 16, 1838; and this, as shown by Hector’s testimony, was recorded as Hale’s survey and return of February 28, 1838. The 16 th June, 1838, therefore, was the date when the terms of the act of 1815 were first complied with, so far as location and survey are concerned, and whatever right the representatives of Langlois may have in this survey attached at that time and not sooner.
    The second section of the Act February 17, 1815, made it the duty of the recorder to transmit a report of the claims allowed and locations made under this act to the Commissioner of the General Land-Office, and to deliver to the party a certificate stating the circumstances of the case, and that he is entitled to a patent for the tract therein designated. The only evidence that such report was made is contained in the record, pages 155 to 201, inclusive; which record was compiled by the surveyor-general under instructions from the General Land-Office of November 1, 1848, to’ Surveyor-General F. M. Oonway, and was transmitted to the General Land-Office with surveyor-general’s letter of November 9,1863. This report appears to have been ■made up to cover this special case, and establishes the fact that the requirements of the Act February 17,1815, had not been complied with.
    The testimony in Langlois1 claim shows that it was not surveyed or located as required by the act of 1815, and that the only bona-fide location of it was made in 1838.
    The Act April 26,1822, (3 Stat. L., 668,) “ to perfect certain locations and sales of public lands in Missouri,” applies only to claims that were surveyed without reference to the sectional or subdivisional lines, aud legalizes such locations when made in pursuance to the act of 1815 in other respects. The second section requires such locations after that date to conform as nearly as practicable to the lines of the public surveys. Nonconformity of the survey of these claipis to the lines of the public surveys is the only point cured by this law.
    The Act March 2,1827,' (4 Stat. L., 219,) supplementary to this act of 1822, confirms those claims only which were located according to law. This law was intended to cure a difficulty as to the quantities located, (the subject of the opinions of Attorney-General Wirt of May 11 and June 19, 1820,) the doubt being as to the number of acres that should be located under New Madrid certificates, where they were for more or less than a legal subdivision.
    The Act March 1,1843, (5 Stat. L., 603,) confirms locations of New Madrid claims, under Act February 17, IS 15, south of the Arkansas River, “ if made in pursuance of the provisions of that act in other respects.” This law does not reach this ease, for Langlois’ location was made in pursuance of the law in other respects. It was not returned by the survey or-general to the recorder of laud-titles till after the 28 th of February, 1838, when Hale had surveyed it. In the case of Barry v. Gamble, (3 How., 51,) above referred to, the Supreme Court held that the return of the survey “ by the surveyor, with a notice of location, to the office of the recorder of land-titles, was the first appropriation of the land,” for the very good reason that until such return the claimant might change his location. The same doctrine is held in the case of Lessieur et al. v. Price, (12 How., 73, 74.) In that case, in stating the proper practice under the Act February 17, 1815, the Supreme Court says : “ The warrant or location certificate issued from the recorder’s office, and there it was returnable ,• there the plat and certificate were returned and recorded; that officer issued the patent certificate; in that office the law required all official business to be transacted, and not in the surveyor-general’s office.” (See also Bagnell v. Broderick, 13 Pet., 436 ; Lessieur v. Brice, 12 How.; Sale v. Gaines et al., 22 How., 358.)
    The affidavit of George A. Worthen, chief clerk of the surveyor-general’s office at Little Pock, dated 23d September, 1850, speaks for itself. There is no evidence that this plat and survey were in the office of the surveyor-general till they were placed there on the 18th of June, 1850, by Henry M. Eector; nor is there any evidence that such plat and survey were transferred from Saint Louis to Little Pock, though there is no doubt the other papers in the case were so transferred. The whole evidence shows conclusively that there was no act amounting to an appropriation of the land by Langlois or his legal representatives, as such appropriation is defined by the Supreme Court in the case of Barry v. Gamble, (3 How., 51,) above mentioned. It is equally apparent that not one of the remedial laws touched this case, for reasons, above stated. Therefore the whole claim of Langlois is simply void, as was decided by the Supreme Court in the case of Sale v. Gaines et al., (22 How., 157.)
    This brings us to the claim of Ludovicus Belding, under the Pre-emption Act May 29, 1830, (4 Stat. L., 420.) That act grants to “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, * * * the right 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,” &c. The third section of this act provides “that, prior to any entries being made under the privileges of this act, proof of settlement or improvement shall be made to the satisfaction of the register and receiver of the land-district in which such land may lie, agreeably to the rules prescribed by the Commissioner of the General Land-Office for that purpose,” &c.
    This land was not surveyed until 1838; the subdivisions and south boundary in the first quarter of 1838. The plat and survey of the township was certified by the surveyor-general on the 30th April, 1838, and a copy of it was sent to the General Land-Office with tbe surveyor-general’s letter of 26th Juno, 1838. Of course the tract covered by Belding’s pre-emption could not be designated till those surveys were made and returned. The Act July 14, 1832, (4 Stat. L., 603,) supplemental to the act of 29th May,,1830, above mentioned, provides that where proof and payment could not be made within one year, as prescribed by the act of 1830, because the surveys had not been made and returned, the parties entitled under the act of 1830 should have one year after such surveys were made and returned in which to make such proof and payment. In accordance with the provisions of this act, proof was made of cultivation in 1829, and actual occupancy on the 29th May, 1830, by said Ludovicus Belding, and the receiver reported that the testimony established the fact that Belding cultivated this land in 1829, and was in possession of it on the 29 th May, 1830, but held that he did so as tenant of Percifull. The register reported that the facts of cultivation in 1829, and possession on the 29th May, 1830, were fully established, and that Belding was therefore entitled to pre-emption under that act. On these statements the Commissioner of the General Land-Office, on the 26th August, 1851, (p. 15, Belding’s amended petition,) reported to the Secretary of the Interior that the case had been fully considered by his, (the Commissioner’s) office, and the pre-emption claim of John Percifull deemed settled by want of concurrence in the opinion of the register and receiver on the question of fact as to actual habitancy and cultivation by the claimant as required bylaw; also that both officers agreed as to cultivation by Belding in 1829, and possession on the 29th May, 1830; the register deciding there was such cultivation and possession as entitled Belding to a pre-emption, the receiver concurring as to such cultivation and possession, but being of opinion that Beld-ing performed them as Percifull’s tenant. The Commissioner stated that “this office is of opinion that the judgment of the register is correct; the testimony taken in connection with all the acts of the claimant being such as to negative the idea of Belding acting as the mere agent or lessee of another in what he may have done upon the land; and in the absence of all authority to recognize the right or power in any individual to lease the public land to another, acts performed in accordance with the requisitions of the law, and made the basis of a right under it, should be regarded as inuring to the benefit of the person performing them, wherever there is good ground to believe that the animus directing and controlling these acts was in good faith to acquire-whatever rights or benefits might accrue therefrom as a settler or occupant of the public lands.”
    On this the Secretary of the Interior, on the 21st November, 1851, advised the Commissioner of the General Land-Office that “ upon consultation with the Attorney-General (J. J. Crittenden,) and after full consideration of the application of A. H. Lawrence, esq., attorney for the heirs of Ludovicus B'elding, one of the claimants to the Hot Springs of Arkansas, on appeal from your decision of the 15th ultimo against permitting said heirs to make an entry under the act of 29th May, 1830, and 14th July, 1832, I have concluded it will be proper, and in accordance with precedent, to permit them so to do, and you will therefore instruct the register and receiver accordingly.”
    The land-officers were so instructed, and, in accordance with these instructions, Belding’s heirs were permitted to enter this land on the 19th December, 1851, as will be seen by copies of' the register’s certificate and receiver’s receipt on pages 16, 17, and 18, amended petition, and which certificate and receipt have never been canceled, as alleged.
    The first question that arises in this case is, had the Commissioner of the General Land-Office and the Secretary of the Interior the right and power to take the action had by them, as above stated? In the case of Lytle v. The State of Arkansas, (9 How., 333,) the Supreme Court held that “ the register and receiver were constituted by the act a tribunal to determine the rights of those who claim pre-emption under it. From their decision no appeal was given. If, therefore, they acted within their powers as given by the Commissioner, and within the law, and the decision cannot be impeached on the ground' of fraud or unfairness, it must be considered as final. The instructions of the Commissioner of the General Land-Office in this case are dated October 23,1850, and are found on page 187, Supreme Court record,.and are as follows, to wit: “The Secretary directs that each claim will be examined and adjudicated separate and without reference to the others or to any question as to the liability of the land to the one or the other claim, so that all questions of law may be left to the determination of the Department’, &c.”
    
      In cases where an entry was allowed on ex-parte affidavits that were impeached, and the lands claimed by another, the General Land-Office always returned the proof, &c., to the district land-officers, with instructions to call all the parties before them, allowing each to present any proof he saw proper, the witnesses to be cross-examined by each party, full notice being given for that purpose; and at the close of the investigation the land-officers were required to report the proceedings to the General Land-Office, with, the testimony, and their opinion on it and on the whole case. On this return the Commissioner of the General Land-Office exercises a supervision over the acts of the register and receiver by virtue of the Act July 4, 1836, § 1, (5 Stat. L., 107.) The necessity and propriety of that officer exercising such supervision and control is too apparent to need argument or comment; and such power has been exercised by him ever since the passage of that law. This act of 1836 so modifies the powers of the district land-officers as fully to justify his action in this case. (Barnard v. Ashley, 18 How., 43.)
    The Act March 3, 1849, (9 Stat. L., 395,) authorized the Secretary of the Interior to perform all the duties in relation to the General Land-Office, of supervision and appeal, previously discharged by the Secretary of the Treasury. The eleventh section of the Act September 4, 1841, (5 Stat. L., 456,) authorized the district land-officers to settle all questions relative to the right of pre-emption arising between different settlers, “subject to an appeal to and a review by the Secretary of the Treasury of the United States/’ This provision was amended by the Act June 12, 1S5S, (11 Stat. L., 326,) which enacted that the eleventh section of the Act September 4,1841, should be amended, so that appeals from the decisions of the district officers, in cases'of contest for the right of pre-emption, shall hereafter be decided by the Commissioner of the General Land-Office, whose decision shall be final unless appeal therefrom. be taken to the Secretary of the Interior. When these instructions were given, pre-emptions were regarded as valid vested rights. The Supreme Court, in the above-cited case of Lytle v. State of Arkansas, (9 How., 333,) says the claim of a pre-emption is not the shadowy right which by some it is considered to be. Until sanctioned by law, it has no existence a-s 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. This decision and others of like character, and the uniform usage of the General Land-Office for many .years, caused pre-emptions to be regarded by that office as valid vested rights, and on this view of the subject this action was had ; and as the officers who took this action were fully authorized by law so to do, their acts are conclusive. (Voorhees v. United States Banlc, 10 Pet., 478; United States v. Arredondo, 6 Pet., 729; Foley v. Harrison, 15 How., 448; Hey-dell v. Dufresne, 17 How., 23.)
    Thus the action of the Commissioner of the General Land-Office and of the Secretary of the Interior, in ordering this investigation of the claims to this land, is fully sustained by the decisions of the Supreme Court and the acts of Congress. Such being the fact, .the entry of this land by Belding’s heirs, as above .stated, must hold, unless there was some fatal objection to that entry. That point will now be considered. The Act May 29,1830, (4 Stat. L., 420,) enacted “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 1829, 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 subdivision, any number of acres, not more than one hundred and sixty, or a quarter-section, to include his improvements,” &c. As this land was not surveyed at that time, Be'lding could not designate the particular tract claimed by him. As there were many settlers and occupants of the public land in the same condition, Congress, on the 14th July, 1832, (4 Stat. L., 603,) passed a supplemental act “that all the occupants and settlers upon the public lands of the United States who are entitled to a pre-emption according to the provisions of the act of-Congress approved 29th May, 1830, and' who have not been and shall not be enabled to make proof and enter the same within the time limited in said act, in consequence of the public surveys not having been made and returned, # * # the said occupant shall be permitted to enter said lands on the same conditions, in every respect, as are prescribed in said hot, within one year after the surveys are made,” &c. This act is supplemental to that of 29th May, 1830, and the two must be taken and construed as one, the latter supplying an omission of the former. In this case the plat of the survey was returned on the 26th day of June, 1838, and Belding’s proof of pre-emption and the tender of the purchase-money were made on the 10th March, 1839, within one year after the return of said plat of survey. This was in strict conformity with the requirements of the act.
    It has been supposed, however, that the reservation made by the third section of the Act April 20,1832, (4 Stat. L., 505,) interposed a barrier to the consummation of Belding’s claim. That section enacts “that the Hot Springs in said Territory, together with four sections of land, including said springs, as near the center thereof as may be, shall be reserved for the future disposal of the United States, and shall not be entered, located, or appropriated for any other purpose whatever.” Two points here arise: first, the nature and effect of this reservation, and, second, the true construction of the Acts 29th May, 1830, April 20,1832, and July 14,1832, when taken in pari ma-teria. The Act April 20, 1832, did not reserve or appropriate this tract for any national or State purposes, but only reserved four sections, including it, “for the future disposal of the United States.” Congress could dispose of it as they saw proper. By the Act July 14, 1832, they disposed of so much of it as was rightfully claimed by pre-emption under the Act May 29, 1830, by authorizing those entitled to such pre-emption to prove up their claims and pay for their land within twelve months after the plat of 'survey was returned. The Supreme Court of the United States has decided that no reservation of land can be made after a citizen has acquired a right to it under a pre-emption law. (United States v. Fitzgerald, 15 Pet., 407, Brown v. Clements, 3 How., 666; Lytle v. The State of Arkansas, 9 How., 333.) In the last-mentioned case the court held that, the Act May 29, 1830, having expired, all rights under it were saved by the subsequent acts. (See also 9 How., 234.)
    The Act May 29,1830, and July 14,1832, form but one law. The Act May 29, 1830, granted a pre-emption to every settler who had done certain things, but did not make provision by which settlers on unsurveyed lands could make the proof and payment required. To supply this deficiency, Congress passed the Act July 14,1832, which fully recognized all the rights under the act of 1830, and provided the way by which those right could be perfected. Attorney-General Butler, in an opinion of April 8,1837, says: “I am of opinion that the Act July 14,1832, is to be deemed a part of the Aet May 29,1830.” (See also the case of Lytle v. The State of Arkansas, 9 How., 332.) Thousands of pre-emption claims have been settled under this law, and why should this be considered an isolated case? The decisions of the Supreme Court, and the rulings of the Department prior to 1870, held that a pre-emption was a substantial vested right. Under the powers vested in him by law, the Commissioner of the General Land-Office, on the 23d October, 1850, instructed the district land-officers at Washington, Ark., to examine all the claims to this land and to report the testimony, with their opinion, to the General Land-Office, which was done. Both officers agreed that Belding had performed the acts required by the Aet May 29, 1830, the register holding that he was entitled to the right of pre-emption,'and the receiver that he was acting as Percifull’s tenant. The Commissioner of the General Land-Office held, and so reported to the Secretary of the Interior, that Belding was entitled to the right of pre-emption. In this opinion the Secretary concurred, and directed that Beld-ing’s heirs be permitted to enter this land under the Pre-emption Acts of May 29,1830, and July 14, 1832. The entry was made as thus directed per register’s certificate and receiver’s receipt No. 6545.
    This entry thus made, the purchase-money having been paid, brings the case clearly within the views of the Supreme Court as expressed in the cases of Frisbie v, Whitney and Hutchins v. Low et al., (December term, 1870,) where that court gave a more rigorous construction to pre-emption rights than had previously been held. Prior to these decisions the Supreme Court held that a pre-emption was a vested right of which the holder could not be divested even by act of Congress. Recognizing such decisions as binding on the Executive, the Commissioner of the General Land-Office an'd Secretary of the Interior, acting under powers specifically given them by law, took such action as culminated in the allowance of Belding’s claim and the entry by his heirs of the land. This entry consummated a vested right in those heirs to this land, within the principles laid down in the decision of the Supreme Court in the cases of Frisbie v. Whitney and Hutchins v. Loto et al., above mentioned.
    The Aet June 11,1870, (16 Stat. L., 149,) authorized “ any person claiming title, either legal or equitable, to the whole or any part of the four sections of land constituting the Hot Spring's reservation in Arkansas, to institute sucb suit against the United States in the Court of Claims as may be necessary to settle the same, and to prosecute it to final decision.” This suit has been brought in strict conformity with this law, and we have shown, by the testimony of parties claiming adversely to Belding, that these parties have no claim, legal or equitable, to this land; that it was public land on the 29th May, 1830, and in 1829, when Belding settled upon it, and that he had performed all the acts required by the pre-emption law of 29th May, 1830, to eutitlfe him to pre-emption to this land under that law; that his claim, having been carefully considered by the proper officers, after full notice to all adverse claimants, was decided in his favor by those officers, the purchase-money having been tendered for it within the time prescribed by law; that the decisions of these officers were carefully scrutinized by the proper appellate authority; that is, by the Commissioner of the General Land-Office and Secretary of the Interior, and under the advice of Attorney-General Crittenden; that Belding’s heirs were authorized to enter this land; that they did so enter it and pay for it, as shown by the certificate and receipt No. 6545, and therefore have the only valid vested, legal, and equitable right to the land. As already stated, the Act April 20,1832, did not reserve or appropriate this land for any special use or object, but simply “ for the future disposal of the United States,” and directs “ that it shall not be entered, located, or appropriated for any other purpose whatever.” From the passage of that law till the Act June 11, 1870, was passed, Congress made no specific disposal of this land of any kind or character whatever.
    By that act of 11th June, 1870, Congress enacted “ that any person claiming title, either legal or equitable,” to the whole or any part of these four sections, “ may institute against the United States in the Court of Claims, and prosecute to final decision, any suit that may be necessary to settle the same; ” and when finally settled, the party in whose favor the decree is given, shall be put in possession of the part decreed to him, and a patent shall issue to him therefor. This is conclusive, evidence that the future disposal of these four sections intended by Congress, as set forth in the Act April 20,1832, was to secure them to the persons who had legal or equitable rights to them ; and as it has been conclusively shown that Belding’s heirs are the only persons who have a legal or equitable right to the southwest quarter of section 33, in township 2 south, range 19 west, they pray for a decree in their favor.
    Taking and construing, as in pari materia, the Acts May 29, 1830, May 20,1832, July 14, 1832, and this Act June 11, 1870, the conclusion is irresistible that Congress did not intend to affect Belding’s right to this land, under the Act May 29, 1830, by -the passage of the Act April 20, 1832, and that consequently the entry by Belding’s heirs should be sustained.
    
      21r. Assistant Attorney-General Goforth and Mr. Alexander T.Gray for the defendants:
    kectok’s case.
    The New Madrid Act was a special act, and should be con strued with reference to the general laws and established policy relating to the public lands. It cannot properly be construed as an isolated, independent act, but must be considered in connection with the system established and regulated by the general land-laws; and if it fairly, admits of a construction under which its objects could be accomplished in harmony with that system, that is the construction of it which should govern.
    Attorney-General Legaré (3 Opins. Attys. Gen., 703) remárks, as something never to be lost sight of in discussing questions arising under laws respecting the public lands that, “however local they sometimes appear to be in particular provisions, they constitute, in truth, one general system, characterized in the main by the same general lines, and are therefore all to be taken in pari materia. In this observation,” he adds, “ I am only repeating an opinion of the same distinguished predecessor (Mr. Wirt) whose authority I have been vouching on another point.” The opinion referred to is in the following terms:
    “ The laws upon the subject of the public lands are all in pari materia, and are to be construed together; and authority to an individual to make an entry of any of these lands is not to be considered as an insulated act, to be expounded strictly upon its own letter, but as having relation to the general system, and to be expounded according to the meaning of Congress, to be collected from tbe language of the particular law, as compared with the whole system, and from the reason and nature of the case.”
    Congress at an early period (1796) adopted the rectangular system for the survey of the public lands, and provided for the disposal of them by sections and subdivisions of sections, according to the lines of survey, and this system, wherever practicable, has been rigidly adhered to in legislation. In.districts where the face of the country was much divided by rivers, lakes, bayous, Sc., the application of this system of squares, with lines directed to the cardinal points, would be inconvenient, difficult, or in many cases impracticable. Yet regularity of method in the surveys of such districts was duly provided for, as, for instance, by the second section of the Act March 3,1811, (2 Stat. L., 662.)
    The symmetry of the public surveys in the Territory of Louisiana was interfered with by the' numerous French and Spanish claims, “of all shapes and sizes, and some of them of immense extent,” which had been recognized by the Government in fulfillment of treaty obligations. This was of necessity, but necessity with the creation of which Congress had nothing to do. But. nothing in the New Madrid Act indicates that Congress intended to originate a necessity for further mutilation of the public-land surveys.
    The New Madrid Act authorized the claimants under it to locate their certificates on any of the public lands in the Territory of Missouri “ the sale of which is authorized by law.”
    When was the sale of the public lands in that Territory, or of any of them, so authorized? The Act March 3,1811, (2 Stat. L., 662,) “providing for the final adjustment of claims to lands, and for the sale of the public lands in the Territories of Orleans and Louisiana,” out of the latter of which the Territory of Missouri was taken, provides, in section 10, that the President is authorized, whenever he shall think proper, to direct so much of the public lands lying in the Territory of Louisiana as shall have been surveyed to be offered for sale, excepting section Ho. 16 in each township, tracts reserved for the support of a seminary of learning, and the salt-springs, and lead-mines, and lands contiguous thereto. The authority given to the President to sell is thus defined to relate only to surveyed lands. So in every act providing for the sale of public lands, from 1785 to the last act passed, none are authorized to be sold except such as have been surveyed. And even if the words of the Neto Madrid Act, confining locations to lands authorized tobe sold, were used, as claimant urges, only to except such lands as had been reserved from sale, regard to this exception rendered the previous execution of the public surveys absolutely necessary. Admitting this construction of claimant to be correct, only by the public surveys could it be ascertained what public lands were authorized and what were not authorized to be sold.
    Although the New Madrid Act says nothing about the lines or subdivisions of the public surveys, the implication in the terms of the first proviso of the first section, that it was intended to confine locations to surveyed lands, is as strong as a positive declaration to that effect. This implication is forcibly stated in an opinion of Attorney-General Wirt, rendered to the Secretary of the Treasury May 11,1820, as follows: “I am of opinion that it was not the intention of Congress, in authorizing the sufferers to “locate the like quantity of land on any ofthepub-lic lands of the said Territory the sale of which is authorized by law,’ to change or affect in any manner that admirable system of location by squares which had been so studiously adopted in relation to all their Territories. This is manifest from the consideration that they have made the avowed object of the act yield to this arrangement. The avowed object of the act was to give to the sufferer the same quantity of land which he had lost by the earthquakes; yet it is provided that if he had lost less than 160 acres of land, (the smaller subdivision of a section,) he was still to have a patent for 160 acres; if he had lost more than 640 acres, (the exact quantity of a section,) he was still to have but 640 acres; so that in the first instance he is to receive more than he has lost, and in the last less, for no other conceivable reason than the desire of Congress to preserve the uniformity and symmetry of the system which had been previously adopted for the location and settlement of all those Territories.”
    The Act April 26, 1822, (3 Stat. L., 668,) “ to perfect certain locations and sales of public lands in Missouri,” clearly sustains this construction of-the Neto Madrid Act in providing that locations of New Madrid warrants, made before that date, “ if made in pursuance of the provisions of that act in other respects, shall be perfected into grants in like manner as if they had conformed to the sectional or quarter-sectional lines of the public surveys, and the sale of fractions of the public lands heretofore created by such locations shall be as valid and binding as if such fractions had been made by rivers or other natural obstructions.”
    The Supreme Court, in the case of Barry v. Gamble, (3 How., 32,j and in Bale v. Gaines, (22 How., 144,) sustain this view in the first-mentioned case, expressly deciding that New Madrid locators could lawfully locate their warrants only on surveyed lands. In Barry v. Gamble the court fully defines its understanding of the scope and proper application of the act of 1822, saying, “The principal difficulties standingin the way of issuing patents seem to have been the following: There were New Madrid locationsmade on lands not then surveyed ” — that is, not embraced in the public surveys at the time of such locations— “ locations made after the lands had been surveyed, but before the surveys were returned, and locations made on lands surveyed and the surveys returned, in each case disregardful of the section lines. But all of them were on lands that had been surveyed and the surveys duly returned and sanctioned when the act of 1822 was passed. On this state of facts Congress acted. No distinction was made among the claimants. All fractions created by prior locations in existing public surveys were declared legal and subject to sale.” So that the lands of which these irregular locations were a part were all within the public surveys, and the fractions created by them were ascertained at the time of the passage of the act of 1822, (which was not the case with Hammond and Rector’s attempted location,) and these ascertained fractions alone, with the irregular private surveys which created them, were within the operation of the act, which did not contemplate or allow the creation of more such fractions, but absolutely forbade them to be made after the date of its passage. As matter of fact, the public lands in the Hot Springs region were not covered by public survey until 1838, and it can hardly be seriously pretended that Congress meant by the act of 1823 that a patent should be issued for an isolated' tract which had and could have no definition of its situation with reference to the public-land surveys, no topographical ascertainment whatever, except that it surrounded a cluster of springs in the wilderness hundreds of miles outside of any public surveys then made or begun.
    
      If the view taken o-f the New Madrid Act be correct, the head of the Land Department of-the Government was right in ordering the surveyor-general for Missouri, in July, 1820, not. to receive or file or record any surveys for the location of New Madrid warrants of land not embraced within the public surveys, by which order the survey of Hammond and Rector was-excluded; and whatever papers were made concerning the survey, plats, field-notes, or anything else, were thenceforth private property only. Their tentative location had, in fact and in law, no standing whatever, either as to application to locate,, survey, or return. What they had applied for it was unlawful to grant, and the whole proceeding concerning it was void ab initio. And the act of 1822 did not apply to their case. Congress, by that act, legalized surveys for the location of New Madrid warrants, and the sale of the fractions created by those surveys, where these, at the date of the act, had been surrounded by the public surveys, but forbade the creation of any more-such fractions, and in effect approved the action of the Land Department in its arrest in limine of the attempted location by these parties. That action was taken in the due exercise of the' authority of supervision over surveys vested in the Commissioner of the General Land-Office by the act of 1812 creating that office-(Castro v. Mendrielcs, 23 How., 438; Maguire v. Tyler et al., 1 Black, 195.)
    As this action of the General Land-Office in rejecting the'survey in question was according to law, and there was nothing in the act of 1822 requiring or indicating that such action should be reversed, and the parties invited to present their survey for-filing, record, and return to the recorder of land-titles, their-warrant could be lawfully located only on lands within- the public surveys, and that on or before the 26th of May,. 1823, after-which date, if not so located, the act provides that such warrants should be null and void. No effort was made within the year allowed by the act to effect a location, and the legal consequence was that after the expiration of that period the warrant held by these parties or by Elias O. Rector, who claimed by assignment sole proprietorship of it, was incapable of location anywhere, as the Supreme Court held in Hale- v. Gaines,. (22 How., 144.)
    What constituted a location under the New Madrid Act ? The question is fully answered in one way, and in no less than six decisions of the Supreme Court, to wit: Bagnell v. Broderick, (13 Pet., 436;) Barry v. Gamble, (3 How., 32 ;) Lessieur v. Brice, (12How., 57;) Hale y. Gaines, (22 How., 144;) Rectory. Ashley, (6 Wall., 143;) and McKay v. Bastón, (19 Wall., 619.)
    Briefly, as the court say in Bagnell v. Broclerielc, “ The location referred to in the act is the plat and certificate of survey returned to the recorder of land-titles, because by the laws of the United States this is deemed the first appropriation of the land.” On behalf of claimant it is contended that if this be the law governing his case, he is not to be damaged by the failure of th e surveyor-generaltoreturntheplat and certificateof survey to the recorder; that the United States are responsible for such failure or non-feasance. But if the view taken on behalf of the defendants be sound, that the survey in question was not warranted by the New Madrid Act, sad not legalized bythe act of 1822,but altogether outside of its provisions, there was no non-feasance on the part of the surveyor-general or of the head of the Land Department, but, on the contrary, a strict and faithful performance of duty. But claimant endeavors to avoid the provisions of the New Madrid Act as to the steps prescribed for the perfection of a location, and in doing this insists that the Supreme Court erred, in Bagnell v. Broderick and other cases, in its definition of what constitutes a location under the act, and maintains that after the passage of the Act April 29,1816, (3 Stat. L., 325,) “ to provide for the appointment of a surveyor of the public lands in the Territories of Illinois and Missouri,” and in view of the practice of the surveyor-general’s office thereunder, it was not necessary to the validity of the location of a Hew Madrid certificate, it was not even lawful, to transmit the plat of survey, &c., to the recorder; that the New Madrid Act was, in effect, pro tanto, repealed by this act of 1816, and it is said that the latter act has been strangely overlooked in the decisions.
    In Lessieur v. Brice (12 How., 57) the court, not overlooking the act of 1816, but evidently having it in mind, say:
    “ The warrant or location certificate issued from the recorder’s office, and there it was returnable; there the plat and certificate were returned and recorded; that officer issued the patent-certificate; in that office the law required all official business to be transacted, and not in the surveyor’s office. That the notice of location, and plat and certificate were recorded in the surveyor’s office is true, and it was proper. It was not done, however, to the end of furnishing evidence of title to the claimant, but to have evidence there to show that the land was appropriated according to the New Madrid Act, and for the convenience of the surveyor’s department. The plain meaning of the law is as above stated) nor can its import be changed by the practice pursued in the surveyor’s office.”
    The third section of the Act April 20, 1832, (4 Stat. L., 405,) enacts that the Hot Springs, “ together with four sections of land, including said springs, as near the center thereof as may be, shall be reserved for the future disposal of the United States, and shall not be entered, located, or appropriated for any other purpose whatever.” Neither Eector nor any other of the claimants can rely upon any other right than such as existed before the passage of this act. And that right must have been something-more than inchoate. It must have been so far established that, although the legal title still remained in the United States, the land had ceased to be the property of the United States. Without this Congress could at any time intervene and withdraw the land from entry, location, or appropriation, or appropriate it to another party. In the language of the court in Frislie v. Whitney, (9 Wall., 187,) “nothing short of a vested right in this land could deprive Congress of the right which it had as owner and holder of the legal title, and, by the express language of the Constitution, to dispose of and make all needful rules and regulations respecting the territory or other property of the United States.” On the part of the United States it is maintained that the holder of the certificate, Elias Eector, whose heir, Henry M. Eector, is the claimant here, acquired no such right in the Hot Springs tract, nor even au inchoate right, by the attempted location in 1820.
    HALE’S CLAIM.
    
      (.Pre-emption Act April 12, 1814, 3 Stat. L., 121.)
    ' The land claimed, being in the occupancy of the Quapaw Indians when the act of 1814 was passed, was not subject to pre-emption. In Threadgill v. Priiibasset (12 How., 37) the court, speaking of land within the territory acquired from that tribe, say: “It must be conceded that the first settlers upon this land, the Indian title to it not having been extinguished, could claim under the act of 1814 no pre-emption right. No laws giving to settlers a right to pre-emption can be so construed as to embrace Indian lands. Such lands have always been protected from settlement and survey by penal enactments.” If Percifull, whose supposed right Hale represents here, did inhabit and cultivate, as claimant alleges, his occupancy was unlawful, and instead of acquiring thereby any right ■of pre-emption, he was liable to prosecution.
    The act of 1814, it is evident, applied only to surveyed landg, •as under its terms a pre-emption could be made of none other. The land here in question was not included within the public surveys until 1838, three years after the death of John Per-cifull, six years after the passage of the Reservation Aet April 20, 1832. From the date of the act of 1814 to the time of his death, it was not, therefore, in the power of Percifull to acquire under that act a right of property, inchoate or other, in the land claimed, and the Reservation Act, so far as he was concerned and all who claim under him, barred any attempt to acquire such right. Never having had any right whatever in the land, but being a trespasser only, neither his heir nor his heir’s as-signee, the present claimant, could have any. In Hale v. Gaines ■et al., (22 How., 144,) the court say: “When the Act April, 1832, was passed, reserving the Hot Springs from sale, Percifull had no vested interest in the land that a court of justice could recognize. Then the United States Government was the legal owner, and had the power to reserve it from sale; so that the offer to purchase in 1851, under the assumed preference to entry claimed for Percifull, was inadmissible. Had the entry been allowed in the face of the act of Congress, such proceeding would have been merely void.” (See also Rrisbie v. Whitney, 9 Wall., 187; Hutchings v. Lowe, 15 Wall., 77.)
    The act of 1843 (o Stat. L., G03) does not repeal the reservation of 1832 either expressly or impliedly. (United, States v. Gear, 3 How., 120.)
    HALE’S CHEROICEE PRE-EMPTION CLAIM.
    The act of 1824, (4 Stat. L., 39,) under which this claim is made, requiring proof of pre-emption and payment thereupon to be made at least two weeks previous to the day appointed for the public sale of the adjacent lands, and the adjacent lands having been offered at public sale in the year 1839, the right to locate a Cherokee pre-emption on the Hot Springs, if any such right existed after April 20, 1832, expired in 1839.
    The third section of the Act March 1,1843, (5 Stat. L., 603,) did not repeal the third section of the Act April 20, 1832, reserving this land from entry, sale, or appropriation, and if it did, would not have revived a right which, if it had any existence after the passage of the latter act, expired in 1839, four years before the passage of the supposed repealing act. The Reservation Act, under the authority of Frisbie v. WMtney and Hutch-ings v. Lowe, is a complete bar of this claim. The proposition to locate Cherokee pre-emption certificates, which had been traded around from hand to hand for twenty-five years, eighteen years after the passage of the act of reservation, was, to say the least, not distinguished for modesty.
    CLAIM: OE WILLIAM H. GAINES ET AL.
    The Act May 29,1830, (4 Stat. L., 420,) under which this claim is made, could have relation only to lands then subdivided or which might be subdivided before the expiration of one year from its date. The whole mass of unsurveyed lands was, therefore, outside of the act, and settlers or occupants of such lands could acquire no rights therein, inchoate or other. No right in the land now claimed vested in Belding, who is represented here by claimants, within the life of the act, the land not being embraced within the ■ public surveys when the act expired.
    The Reservation Act of April 20, 1832, had, so far as Beld-ing was concerned, no vested right back of it, and he and all claiming through him were by that act forever shut out from making claim to this land, unless let in by subsequent legislation.
    ' The Act July 14, 1832, (4 Stat. L., 603,) passed at the same session, did-not operate as a repeal of the Reservation Act in respect to the quarter-section in question. It was intended to admit settlers on unsurveyed land, who could not make entry because surveys were not made within the life of the act,of 1830, to the privilege of pre-emption provided by that act for settlers upon surveyed lands. There were many such settlers, and the act was designed for the benefit of these as a class. It would be an exceedingly violent interpretation that it repealed the reservation of this single quarter-section, of which it makes no mention. Both acts can well stand. The latter operated upon the public lands as it found them, applying to their condition at the time of its passage. In this case no entry had been made or could be made, no right against the United States had vested up to the date of the act of reservation, and any future entry, location, or appropriation was forbidden by that act. It certainly could not have occurred to Congress, in passing the Act July 14, 1832, that it was necessary to make a special exception of the land reserved, more than of any other reservation, special or general, (if, indeed, this land was at all in mind,) in order to save it for the United States from entry, location, or appropriation; and, on the other hand, if the intention had been to release it from reservation, it is altogether likely that provision to that effect would have been expressly made, not left to be implied. (Dwarris, 532, 533, and cases there cited ; Peytonv. Mosely, 3 Mon., 77; United, States v. &ear, 3 How., 120.)
    The Act May 29,1830, intended that persons claiming the right of preference in entry should still be in possession of the land when they should come to make proof and payment. The phrase “settlers on the public lands,” in the title of the act, and the equivalent phrases in that and other pre-emption laws, import permanence of possession. The act requires, first, that the claimant shall be a settler or occupant; second, that he shall have cultivated the land in 1829; and, third, that he should be in possession on the day when the act was passed. Thus a settlement of such length before that date is required as would indicate an intention to permanently occupy the land; and when the claimant of - pre-emption right came to make entry within the year allowed for that purpose, it was still in his character as “settler on” the land, maintained after the passage of the act, and not merely through the year 1829, and up to and at the date of the act. No such absurdity could have been intended as that settlement and possession on a particular day, discontinued after that day, should confer' any right as against the United States. The possession required is not only or merely a possession on the day named, but possession by an occupant or settler on the land; and these terms, descriptive of the persons to be benefited by the privilege of preference in entry, necessarily imply continued possession after that date.
    That Congress did not intend this absurdity in passing this act or the Act July 14,1832, is manifest from the language of the latter. The latter act provides “ that all the occupants and settlers upon the public lands of the United States, who are entitled to a pre-emption according to the provisions of the act of 1830, * * * shall be permitted,” &c. What occupants and settlers ? Certainly not those wlio were such on the 29th of May, 1830, but had, before the passage of this act, abandoned their settlement and ocdup ion. The language, “occupants and settlers upon public lands * * * who are
    entitled,” &c., can mean no others than persons who were settlers in possession on the 29 th of May, 1830, and who were still in possession on the 14th of July, 1832; so that, by this new act, under which rights of settlers upon unsurveyed lands first accrued, the persons in contemplation were those who cultivated in 1829, were in possession on the 29th of May, 1830, and still in possession on the 14th of July, 1832. It is not pretended that B elding was, in any sense, an occupant or settler upon the land claimed on the 14th of July, 1832; and consequently he was not one of the persons of whom the words “ occupants and settles who are entitled” were used, and the act had no relation to him.
    It being under the Act July 14, 1832, that settlers on unsur-veyed lands, who had cultivated in 1829, and were in possession in May, 1830, first became entitled to the privilege of preemption granted for one year by the act of 1830 to settlers upon surveyed lands, and that upon the same conditions prescribed by the act of 1830, and one of those conditions being as follows: “Nor shall the right of pre-emption * * * extend to
    any land which is reserved from sale by act of Congress,” the land in question here, being part of a tract which was expressly and in the strongest terms reserved from sale by the Act April 20,1832, was not subject to entry under the Act July 14, 1832.
   Nott, J.,

delivered the opinion of the court:

These five actions are suits in equity, brought under the Hot Springs Act June 11, 1870, (16 Stat. L., 149,) to determine the conflicting claims of the parties claimant and of the United States as defendants to the Hot Springs of Arkansas. As each of the suits was adverse to the others, the parties seeking to recover the same property by different and conflicting titles, the court, pursuant to an authority expressly vested in it by the act, consolidated the suits, to the end that the conflicting rights of the claimants, both as against each other and the United States, may be settled by single decree.

The property which is the subject of dispute is, as has been said, the Hot Springs of Arkansas, but the suits of the parties are not all directed to precisely the same tract of land. Some of the parties seek to recover a square tract of two hundred arpents, whereof the Hot Springs form the center, and others ■seek to recover a single quarter-section, as laid down on the public surveys. But a corner of the quarter-section overlaps and includes a portion of the two hundred arpents, and the Hot ■Springs, which constitute the real value of the property, lie within the overlapping corner. It is to be understood that if the title of one of the parties to the quarter-section is valid, the ■others may still be entitled to the remainder of the two hun>dred arpents, and conversely that, if another has the better title to the whole of the two hundred arpents, the former may still be entitled to the remainder of the quarter-section; but inasmuch as the right to the Hot Springs is the only subject of dispute, we will, for convenience and brevity, speak of them as though they constituted the exclusive ground of controversy.

Though there are five parties claimant before the court, nevertheless, so far as the defendants are concerned, there are but three adverse titles asserted, for three of the parties seek to recover upon the same title, and the superior equity of any one of them as against the others is a matter of indifference to the defendants. As all of these titles flow from the same source— the Government — it is evident that that one which is first in time will, if it be valid, extinguish the claims which come after it.

I. The first, known as the Percifull title, is founded on the Pre-emption Act April 12, 1814, (3 Stat. L., p. 121, § 5,) and the prior inhabitancy and cultivation of the tract by John Per-cifull. It is represented in this case by the claimant Hale.

II. The second, known as the Bector title, is founded on the New Madrid Act February 17, 1815, (3 Stat. L., 211,) and the location of what was known as a New Madrid certificate by ■Samuel Hammond and Elias Bector in 1820. This title is represented, respectively, by the claimants, (1) Bector, (2) McKay and Gitt, and (3) Bussell.

III. The third, known as the Belding title, is founded on the Pre-emption Act May 29, 1830, (4 Stat. L., 420,) and the actual possession and cultivation of the tract in that year and on that day by Ludovicus Belding. It is represented in this suit by the claimants Gaines et al.

Chronologically arranged, the principal conflicting acts of the parties (including those of the Government) which affect, these titles appear in the following order:

In 1812, the Hot Springs of Arkansas, though in a remote and unsettled portion of the country, approachable only by a bridle-road or foot-path, were to all intents and purposes a summer health-resort. Invalids went there annually to the number of twenty or thirty, erected temporary shelter, popularly termed u camps,” obtained the benefit of the waters during the summer, and returned to their homes with the autumn. The situation of the. springs is in a deep ravine, surrounded by a barren country, and in the tracts which are the subject of dispute there was not more than an acre and a half of ground susceptible of cultivation.

In 1813 John Percifull, as his representatives allege, built the first house at the springs. The fact of his occupancy is not so much disputed as its character, for it is asserted that he did not inhabit and cultivate, within the true intent and meaning of the statute under which they claim. The principal point of the objection is that his residence was some miles distant from there, and that he came to the springs during the summer to sell supplies to the invalid visitors; that they presented him with their camps; that he raised a few vegetables to vend to them; and that he gradually acquired some buildings without inhabiting and cultivating, as required by the statute under which their claims must be adjudged;

In 1814 Congress passed the Pre-emption Act, April 12, 1814, (3 Stat. L., 121,) which provides “ that every person and the legal representatives of every person ivho has actually inhabited and cultivated a tract of land,” &c., “ shall he entitled to the right of pre-emption in the purchase thereof.”

In 1815 Congress passed the Few Madrid Act, February 17, 1816, (3 Stat. L., 211,) which .provides that “persons whose lands have been materially injured by earthquakes shall be, and they are hereby, authorized to locate the like quantity of land on any of the public lands of the said Territory the sale of which is authprized by law.” The act also provides for the ascertainment of this fact by the recorder of land-titles, for the issuauce of a certificate by him entitling the holder to locate upon other public lands, for the location under this certificate, on the application of the claimant, by the principal deputy surveyor for the Territory, for a return of the plat and location to the recorder of land-titles, and for the issuance of a certificate, and then of another or final certificate of location by him to the party.

In 1816 Congress passed the Act April 29, 1816, (3 Stat. L., 325,) creating a new office, subsequently known as that of surveyor-general.

In 1818 the Indian title to this part of the Territory was extinguished by the Qaapaw treaty, 2-ith August, (7 Stat. L., 176.)

In 1818 a New Madrid certificate, dated 26th November, and numbered 467, was issued by the recorder, for two hundred arpents of land, in favor of Francis Langlois, and delivered to Joseph Storey, as attorney and assignee. On the 29th November of the same year Francis Langlois, by Joseph Storey, released and assigned this certificate to Samuel Hammond, and he in turn assigned one-half interest therein to Elias Eector on the 19th February, 1819.

In 1819 Hammond and Eector filed their application, dated 27th January, 1819, under their New Madrid certificate, for the entry, of two hundred arpents of land, “to be su,rveyed in a square tract, the lines of which to be corresponding icith the cardinal points, and to include the Sot Springs11 the said springs to be as near to the center of the sguare as circumstances will admit.”

In 1820 the Attorney-General and Secretary of the Treasury decided that locations of New Madrid warrants could only be made upon public lands which had been surveyed and offered for sale, and that the locations must conform to the sectional lines of the public surveys. Instructions to this effect were issued to the officers of the Land-Office.

In 1820 James S. Conway, deputy surveyor, returned and filed his survey No. 2903 and plat of the location of Hammond and Eector’s warrant in the office of the surveyor-general at Saint Louis. The character of this survey and the fact of this filing- and of the approval thereof by the surveyor-general are contested by the other parties.

In 1822 Congress passed'the Act April 26, (3 Stat. L., 668,) which, provided that the location theretofore made of warrants “issued under the New Madrid Act, if made in pursuemee of that act in other respects, shall he perfected into grants in lihe manner as if they had conformed to the sectional or quarter-sectional Unes of the public surveys.” The act also provided that all such warrant s “shall be located within one year after the passage of this act, in failing tohereof the same shall be null and void.1” It was subsequently provided by the Act March 2,1827, “ that the location of lands heretofore made according to law” “shall be perfected into grants in the manner prescribed” by the Neto Madrid Act, “any construction thereof to the contrary notwithstanding.

In 1829 Ludovicus Belding occupied a house and cultivated a small plot of land as a garden at the Hot Springs. The house was owned by Percifull, and Belding entered it as his tenant. Other persons at the same time occupied other houses and resided at the springs. The fact of his occupancy and cultivation are hardly questioned, but the character and sufficiency is a matter in dispute. He continued to occupy and cultivate until after the 29th of May, 1830.

In 1830 Congress passed the Act May 29, (4 Stat. L., 420.) It provides “that every settler or occupant of the public lands prior to the passage of this act, who is noto in possession, and cultivated any part thereof in the year 1829, shall be, and he is hereby, authorized to enter with the register,” &c., “ a quarter section.” It also provides “ that the right of pre-emption contemplated by this pet” shall not “extend to any land which is reserved from sale by act of Congress,” &c., “and that this act shall be and remain in force for one year from and after its passage.”

In 1832 Congress passed the Act April 20) (4 Stat. L., 505,) which provides that the Hot Springs “shall be reserved for the future disposal of the United States, and shall not be entered, located, or appropriated for any other purpose whatever.”

In 1832 the same Congress passed the Act July 14, (id., 603,) providing that persons entitled to pre-emption under the act of 1830, who had not made proof and entered the same within the time limited in that act, “in consequence of the public surveys not having been made and returned,” &c., “shall be permitted to enter the said lands, on the same conditions in every respect as are prescribed in said act, within one year after the surveys are made.”

The act was also further extended by the Act Juye 19,1834, (4 Stat. L., 678,) and by the Act June 22,1838, (5 Stat. L., 251.)

In 1838 the first public surrey of or around the Hot Springs-was made, the plot thereof was certified on the 30th April, and the lands, except as reserved, were subsequently offered for-sale.

In 1838, after the public survey, the widow of Percifull sought to enter the quarter-section; but her application was refused, by the register and receiver of the land-office on the ground of a prior location made by Eector under the Hew Madrid warrant No. 167.

In 1839 the widow of Belding, after the survey, and before-the lands were offered for sale, sought to enter the quarter-section under the Act April 29,1830. The application was not finally acted upon until 1851, when an entry was allowed by the Secretary of the Interior, at the special request of the applicants, and for the special purpose of enabling them, to obtain-a foothold in'court to try the legal question then in dispute.

In 1841 Congress passed the General pre-emption Act September 4, 1841, ( 5 Stat. L., 453.)

In 1843 Congress passed the Act March 1,1843, (5 Stat. L.,. p. 603, § 3,) providing that “ everysettler of the public lands south of the Arlcansas 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.”

In 1843 the widow of Percifull again sought to enter the-quarter-section, and tendered the purchase-money thereof, but her application was refused by the register and receiver.

In 1851 the register and receiver in Arkansas, pursuant to instructions from the General Land-Office, reported upon the claim of Belding’s heirs, agreeing substantially on the facts,, but differing in their conclusions,' the former holding that Belding’s possession was the possession of his landlord, and the latter that he had occupied and cultivated within the meaning of the Act May 29, 1830. The Secretary of the Interior, Mr. Stuart, after the Land-Office had rejected the claim, decided that it was proper and in accordance with precedent to permit the applicants to make an entry under the act, so as to place them in a position to test the adverse claims of others to the same land, the entry, nevertheless, to remain.“subject to the-same power of revision and control by the General Land-Office and this Department as may be lawfully exercised over any ordinary entry.” Under this decision the Belding heirs entered the-land, paving the price thereof, and receiving the usual certificates, bearing date 19th December, 1851.

In 1860, June 7, the Secretary of the Interior, Mr. Thompson, decided that the entry authorized by his predecessor, Mr. Stuart, was contrary to law and should not have been allowed,, and he directed that it be canceled.

In 1S70 Congress passed the Hot Springs Act, referring the-controversy to this court.

For the purpose of showing the claims which the several parties present, we have analyzed from their evidence the following : v

CHAINS OE TITLE.

I. — In Hale’s Case.

The United States to John Percifull. — The pre-emption right-under act 12th of April, 1814, (3 Stat. L., p. 121, § 5.)

Under this it is claimed that Percifull inhabited and cultivated pursuant to the terms of the statute, and that his possession has been maintained till the present time; and that in. 1838, after the lands had been surveyed and before they had been offered for sale, the heirs of Percifull made proper application to pre-empt the quarter-section which is the subject of suit.

John Percifull to Sarah and David Purcifull. — By descent,,

in 1836.

By the death of John Percifull, in 1836, intestate, his equity went to his widow, Sarah, and only child, David.

Sarah and David Percifull to John C. Hale and Milus Woods.— Agreement and conveyance to John C. Hale and Milus Woods-of half interest, dated November 16,1840.

This instrument purports to sell and convey undivided one-half part of the quarter-section to Hale and Woods. Woods is. said to have sold his interest to Jacob Mitchell, and Mitchell to have sold to the claimant, Eector, but this is only shown by parol evidence. A division of the land between Hale and Woods is shown by parol evidence, and that Mitchell (and after him Eector) had been in possession of Woods’ portion, but no conveyance or sale by Woods is produced, nor is he or his representatives made a party to this suit.

John C. Hale to Henry M. Rector. — Agreement, dated May 11, 1843.

This agreement conveys one-balf of Hale’s' interest in tbe property acquired under tbe preceding conveyance to him and Woods, being one-eighth of the entirety. It is in consideration of Rector’s conveying to Hale one-fourth of his interest under the New Madrid certificate; but it is claimed by Rector that certain other provisions of the agreement were never carried out, and that it was subsequently abandoned, and that under the decisions of the Supreme Court of Arkansas a sealed agreement may be abandoned without formal instrument in writing to that effect being executed.

David Percifull and Elizabeth, his wife, to John O. Hale.— Deed, dated January 10,1848.

This instrument conveys all of David Percifull’s remaining interest, being the one-half part of the quarter-section. His mother had previously died intestate, and consequently, under this and the former conveyance of Sarah and David, Hale acquired three-fourths of the property; but he conveyed one-eighth to Rector, leaving in himself five-eighths, of which he now claims to be the owner. One-eighth is supposed to be in Rector, and the remaining one-fourth of Woods’ is not represented in the suit.

II. — In Meotor’s Case.

The United States to Francis Langlois. — New Madrid certificate No. 467, dated Saint Louis, November 26,1818, under the act of, February 17,1815, (3 Stat L., 211.)

Langlois proved by Joseph Story, his attorney and assignee, to the satisfaction of Frederick Bates, recorder of land-titles at Saint Louis, that a tract of 200 arpents, situated in Bayou Saint John, in the county of Ne.w Madrid, had been injured by earthquakes. On the 26th November, 1818, the recorder issued his certificate No. 467 stating that Langlois or his legal representatives is entitled to locate 200 arpents on any of the public lands. Langlois at the same time, by Storey, his attorney, executed a release to the United States of his said injured tract on the Bayou Saint John.

Francis Langlois and Barbara, his wife, to Joseph Storey.— Power of attorney, dated 10th November, 1818. — Deed, dated 12th July, 1819. — 'Consideration, $260.

Prior to the issuing of the New Madrid certificate, Langlois, “for good causes and considerations,” executed his power of attorney irrevocable, and under seal, dated 10th November 1818, to Joseph Storey, giving full power to him to locate the 200 arpents for his own proper use and that of his heirs and assigns, and with authority to relinquish and release the injured lands to the United States. Subsequently to the issue of the New Madrid certificate he and his wife again executed to Storey their deed, dated 12th July, 1819, conveying the injured lands and all the privileges and advantages arising therefrom, with a reference to the New Madrid act and with a covenant of warranty.

Joseph Storey to Samuel Hammond. — Assignment New Madrid certificate No. 467, dated January 4, 1819. — Consideration, $640.

By an indorsement on the original New Madrid certificate No. 467, bearing date January 4,1818, but undoubtedly meaning 1819, Storey assigned and transferred, for himself and as attorney of Langlois, all his title, right, and interest in' the certificate to Samuel Hammond, his heirs and assigns, and all benefits to be derived therefrom. Subsequently he executed a second assignment, bearing date the 24th Febuary, 1821, to Samuel Hammond and Elias Eector, conveying the same rights and interests.

Samuel Hammond and Eliza A., his wife, to Elias Eector.— Deed, dated February 19, 1819. — Consideration, $600.

These grantors convey by a formal deed to Elias Eector one undivided moiety of the New Madrid certificate, and of the rights and lands accruing or to accrue therefrom. The transfer of Hammond’s remaining interest is not shown directly, but-Eector, the present claimant, filed his bill in the circuit court of Arkansas for Hot Springs County against Langlois, Storey, and Hammond, and Eliza Hammond, and on 2d March, 1853, obtained a decree requiring the defendants to convey all their interest in the lands and rights under the certificate to him, and the lands surveyed and selected thereunder. The defendants were served by publication; and, none of them appearing, the decree was taken by default.

Elias Rector to Henry M. Recter. — Will, dated'August 9,1822; proved August*30, 1822.

Elias Rector, by will, devised his real and personal estate to his wife for her life, with the remainder to his three children. 'At the time of his death these were of tender years. Two of them died in childhood, and the survivor, the claimant, on the death of his mother, succeeded to'all of his father’s rights and interests in the property.

Henry M. Rector to John O. Hale. — Agreement, dated 11th May, 1843.

This is the same agreement previously mentioned in Hale’s case, whereby Hale conveys to Rector one undivided eighth part of the quarter section, in consideration of Rector’s conveying to him one undivided fourth part of his interest under the New Madrid certificate; but Rector, as before stated, insists on the abandonment of this agreement, and claims to be the only party in interest, under the New Madrid certificate.

III. — In McKay & Gift’s Case.

Francis Langlois to Joseph Michel. — Deed, dated 27th July, 1805.

The claimants have set up in their petition, and offered in evidence on the trial, a deed from Langlois to Joseph Michel, executor, in 1805, conveying to Michel 200 arpents of land on the River Gayoso; but the court finds that this was a distinct tract from the 200 arpents owned by Langlois on the bayou Saint John, and excludes the deed from its consideration. The claimants also offered in evidence on the trial an agreement, dated April 8, 1805, between Langlois and Michel, whereby Langlois acknowledges the payment from Michel for his “ improvements-rights on bayou Saint John, containing the quantity of 200 arpents,” and binds himself to execute any further conveyance of the said pre-emption survey when called upon or requested so to do. Michel, nevertheless, is to pay. all the expenses and trouble in obtaining .any confirmation before the board of commissioners of land-claims concerning the title to the said plantation. But, this agreement not having been set up in the claimants’ petition, the court likewise excludes it from its consideration. The claimants also read in evidence the will of Joseph Michel and the various agreements or conveyances set up in their petition; but, having failed to show any interest in Michel, the court likewise excludes all of such agreements or conveyances from its consideration.

IV. — In RusselVs Case.

Henry M. Hector to John H. Bussell. — Deed, dated 5th March, 1867.' — Consideration, 810,000.

This deed conveys and quit-claims all of Hector’s right, interest, and title, of whatever character and description, in and to the 200 arpents of land located under certificate No. 467 and survey No. 2903, to John H. Eussell, his heirs and assigns; but Eussell, on the same day, executed to Eector the following conveyance:

John H. Eussell to Henry M. Eector. — Deed, dated 5th March, 1867. — Consideration, $5,000.

This deed recites the conveyance by Eector, and acknowledges that Eector has that day paid him $5,000, in consideration of which he conveys to Eector all the lands except one-half, as to which half they are to remain joint owners, “provided that within twenty days after the adjournment of the first session of the present Fortieth Congress 1 shall have secured and shall bring and 'produce to the said Rector a confirmation, entire, full, and complete, by the Congress of the United States, of the title of said Francis Langlois ; but that in case I should fail to secxire and bring and produce such confirmation of title by the said Congress as aforesaid, then I am to have no claim whatever in and to said land as named in certificate No. 467, and the said deed from said Rector to me of this date is to be null and voidP The court finds from extrinsic evidence that these instruments were executed and exchanged at one and the same time, and were parts of one and the same transaction.

Y. — In Gaines’ Case.

Tlie United States to Ludovicus Belding. — Pre-emption right under act 29th May, 1830, (4 Stat. L., 420.) Certificate of register and receiver of land-titles.

Under this it is claimed that Ludovicus Belding occupied and cultivated, pursuant to the terms of the statute. Certificates of entry by the register and receiver of the land-office, and a receipt for the payment of $200 by the heirs of Belding in 1851, are produced.

Ludovicus Beldiug to Maria Belding, (wife of William EL Gaines,) Albert Belding, Henry Belding, and George Beld-ing — By descent.

Ludovicus Belding died intestate, leaving his widow, Lydia Belding, and his children above named. The widow subsequently died also intestate, and the children succeeded to the interest of herself and her deceased husband.

We now come to an examination of the facts upon which the several titles rest.

1. Of the title of John Percifull.

It rests exclusively upon the Act April 12,1814, (12 Stat. Tj., 121, § 5,) his previous inhabitancy and cultivation, and an alleged foothold upon the property, maintained from that time to the present by himself, his tenants, his heirs, and their assignee. No entry has ever been allowed and no certificate has ever issued. The first attempt to enter or purchase under the act was in 1838, after the Reservation Act April 20, 1832, had passed, but before the land had been offered for sale, though after public surveys had been made.

As against the Government, the facts are these :

1. The widow of Percifull, in 1838, applied to enter and purchase the lands under the act of 1814, and filed her proofs to establish her right of pre-emption. On the 27th September, 1838, the receiver and register of the land-office in Arkansas rejected the application upon the ground that the land sought to be entered had been located by a uNeic Madrid certificate, No. 467, in the name of Francis LangloisP

2. In 1843 sbe again made application to enter and purchase the lands under the same act, and filed further and additional proofs. She also made tender of $200 in gold coin, the amount of the purchase-money of the quarter-section. This application was also rejected on the following grounds: First, that the land claimed was not ceded to the United States by the Quapaw Indians until 1818, and was not subject to pre-emption under the act of 1814; second, that the land was reserved from entry or sale by the Reservation Act April 20,1832; third,11 that, admitting the validity of a settlement, the claimant, in her proof herein, has failed to mahe out her case under the Act April 12, 1814.»

3. In 1850 the heirs or representatives of Percifull made further proof of their right to enter the lands. On the 10th February, 1851, the receiver decided that Percifull “did actually inhabit and cultivate the tract of land above described, on and prior to the 12th day of April, 1814,” and uthat his legal heirs or representatives are entitled to enter the same under the provisions of said pre-emption laws of 12th April, 1814, at the minimum price of $1.25 per acre.” But the register on the same day decided “that John Percifull did nob actually inhabit and cultivate the southwest quarter of section 33, in township 2 south, of range 19 west, prior to the passage of the Act April 12, 1814.” These decisions were returned to the General Land-Office. On the 10th October following, the Secretary of the Interior decided that the right' of entry was barred by the Reservation Act April 20, 1832, and therefore that the claim was void.

4. By these proofs it appears that John Percifull in fact resided, in 1814, on the Wachita, seven miles distant from the Hot Springs, where he owned a house and cultivated a farm, Avhich was also a part of the public domain, but that he had erected a house and cultivated a garden at the springs, doing business there in summer during the.season of visitors, and returning to his home in the autumn. It also appears that the house or houses which he owned at the springs he leased, from time to time, to various parties till 1833, after which he resumed possession. His inhabitancy at the springs in 1814 does not appear to have been exclusive, but to have been shared by the visitors who came from year to year for the purpose of using the waters •, neither does he appear to have been the first settler, nor to have inhabited and cultivated until the place had become a summer resort for invalids.

Upon these facts the claimant is understood to contend that the Act March 1, 1843, (5 Stat. L., p. 603, § 3,) removed all objections to his entry, and that, under the Sot Springs Act 1870, (16 Stat. L., 149,) this court is invested with equitable power to take the place of the land-office, and complete the proceedings which constitute a sale.

II. Of the title of Slias Sector.

This title rests entirely upon the New Madrid certificate in favor of Francis Langlois and the survey of James S. Conway, deputy surveyor, returned to surveyor-general’s office, at Saint Louis, in 1820.

As against the Government, the facts are these:

1. On the 26th of November, 1818, the recorder of land-titles at Saint Louis, upon what he deemed sufficient proof, issued a certificate, No. 467, in favor of “ Francis Langlois or Ms legal representatives,” entitling thorn “to locate 200 arpents of land on any of the public lands of the Territory of Missouri the sale of which is authorised by law.” This certificate was issued or delivered to Joseph Storey, the attorney and assignee of Lang-lois. The Government has filed no bill to set this certificate aside as erroneously issued or fraudulently obtained; therefore we are not at liberty to go behind it, and must hold that it was rightfully issued, and upon sufficient proof.

2. On the 17th January, 1819, Samuel Hammond and Elias Eector, to whom the certificate had been assigned by Storey, applied as representatives of Langlois, in writing, to the surveyor-general for the Territory of Missouri “for the entry and donation of 200 arpents of land to satisfy the said certificate, to be surveyed in a square tract, the lines of which to be corresponding toith the cardinal points, and to include the hot springs, so called, upon the waters of the Wachita River, south of the river Arkansas, the said springs to be as near the center of the square as circumstances will admit.” The surveyor-general accordingly ordered the survey to be made. This order is apparently not of record in the office, and is shown only by parol evidence. It was directed to James S. Conway, deputy surveyor.

3. On the 16th July, 1820, the deputy surveyor returned bis survey, with a plat made out in triplicate, to tbe surveyor-general, by whom it was approved and filed. Tbe copy on file in tbe surveyor-general’s office is not found of record, and tbe fact that sucb a paper ever became a part of tbe records of tbe office is questioned. We bave considered tbe objections raised by the adverse parties and acknowledge tbeir weight, but it appears to us a conclusive fact that this survey of the deputy surveyor was numbered by him 2903, and that on tbe official “ List of certificates issued by the recorder of land-titles under the act of Congress of the 17th of February, 1815,” transmitted by tbe land-office at Saint Louis to tbe land-office at Little Eock, when tbe latter was established, there appears “survey 2903” opposite uNew Madrid certificate 467, for 200 argents of land issued to Francis Langlois; ” and this is further strengthened by documents from tbe Interior Department, where tbe same numbered survey also appears opposite tbe same New Madrid certificate. These official recognitions, taken in connection with tbe positive and circumstantial evidence offered by tbe claimant, places above all doubt tbe fact that tbe survey was filed. Consequently neither of tbe original triplicates not filed should be rejected as secondary evidence. Tbe approval of tbe surveyor-general is shown only by parol and circumstantial evidence, and is not a matter of record.

About tbe time this survey was returned to tbe surveyor-general’s office, instructions were received by him from tbe Secretary of tbe Treasury which prevented him from returning a plat of tbe location to tbe recorder of land-titles, as required by tbe second section of tbe New Madrid Act February 17,1815. It is conceded by tbe claimant that no steps were taken on tbe part of Hammond and Eector to compel tbe surveyor-general to return a plat of thé location to tbe recorder, and that no further steps to complete tbe title were taken by them or tbeir representatives until 1838, when tbe heirs of Eector applied for a certificate and patent.

Tbe objections of tbe officers of tbe land-office to tbe right of Eector to complete bis title have been, first, that these lands were not surveyed and offered for sale, and hence that tbe sale thereof in 1820 was not authorized by law; second, that tbe location of a New Madrid certificate must conform to tbe lines of tbe public surveys, and that it could only include quarter and half quarter sections to an extent not exceeding six hundred and forty acres, and consequently that Hammond and Rector could not locate absolutely two hundred arpents of land; third, that the location being illegal and defective, and not completed before the Act April 26, 1822, (3 Stat. L., 668,) was not helped by the first section of that act, and is barred by the second; fourth, that the salé not having been complete and valid, the land is reserved by the Reservation Act April 20,1832.

Upon these facts the claimant is understood to contend that the return by the deputy surveyor of his survey and location, and the approval thereof by the surveyor-general, made the location complete; that the duty of returning a plat to the recorder of land-titles devolved exclusively upon the surveyor-general, and his neglect or refusal so to do could not defeat the party’s rights under the Act April 26,1822; and that the location thus made, being in contemplation of law complete, should be perfected into a grant in like manner as if it had conformed to the sectional lines of the public surveys.

III. Of the title of Ludovicus Belding.

This title rests upon the Act May 29, 1830, (4 Stat. L., 420,) and upon the actual possession of a house at the Hot Springs on that day, and the cultivation of a part of the quarter-section during the year 1829 by Ludovicus Belding. An entry is also relied upon which was allowed by the Secretary of the Interior in 1851.

As against the Government, the facts are these :

1. In 1839 the heirs of Belding applied for leave to enter the land, and offered proofs and showed a right of pre-einptiqn under the Act May 29, 1830, (4 Stat. L., 420.) No immediate decision was rendered on this application, but on the 23d October, 1850, the General Land-Office instructed the land-office in Arkansas to have a rehearing of the claim. Upon this rehearing the^receiver, on the 13th February, 1851, decided that Bel-ding u ivas in possession of the Sot Springs on the 29th-May, 1830, not in his own right, however x hut as tenant wider and hy virtue of a lease from John Percifull, who, it is shown, claimed said springs and had possession of them and that Belding cultivated 11 a portion of the land embraced in the quarter-section on which the Sot Springs are situated, hut that he only acquired the right to cultivate said land hy means of said lease from John Percifull to him;” and that u all the improvements which said Belding put on said quarter-section during the time he held possession were made in accordance with an express agreement between him and Percifull that he should do so, and on the consideration of which Percifull leased the springs to him ; and that said improvements were made for the use and benefit of said Percifull, and not Belding and that “ the purchase of the Miller cabins toas made by Belding for ■the use and benefit of John Percifull, and not for his own use and benefit, nor longer than for the term of his said lease and that 11 the heirs and legal representatives of said Ludovicus Belding, deceased, are not entitled to enter said land by pre-emption under the provisions of the aet approved 29th May, 1830. On the 22d March, 1851, the register decided that “ it was clearly proven that the said Ludovicus Belding did cultivate said southwest quarter of section 33, in township 2 south, of range 19 icest, in the year 1829, and that he had possession of the same on the 29th May, 1830, as required by the first section of the pre-emption law approved 29th May, 1830.” The Commissioner of the General Land-Office, on the 20th of August, 1851, decided that Percifull had no power to lease the public lands, and that the inhabitancy inured to the benefit of Belding, but he reserved a final decision upon the application. On the 21st November, 1851, the Secretary of the Interior, Mr. Stuart, on appeal from the Commissioner of the General Land-Office, decided that it would be “proper and in accordance ivith precedent,” to permit the heirs of Belding to make an entry under the Acts May 29, 1830, and July 14, 1832, as reguested by them, which request stated that such entry should be, “in order that they may be placed in a proper position for the assertion of their rights hereafter in the courts,” and declared that they would not ask for a patent. The Secretary of the Interior further said in his decision, “Said entry will remain subjeet to the same power of revocation and control by the General Land-Office and this Department as may be lawfully exercised over any ordinary entry. The Government ivill still hold the power of protecting its own rights, while the claimants ivill simply be placed in a position to contest the adverse claims of others to the same land.” Under and in pursuance of this decision the register and receiver of the land-office in Arkansas entered the land in favor of the heirs of Belding, and issued the usual certificates, and they accepted and received from them the sum of $200 purchase-money, which is still retained by the Government.

On the 7th June, 1860, the Secretary of the Interior, Mr. Thompson, decided that the entry allowed by his predecessor, Mr. Stuart, in favor of Belding’s heirs, was forbidden by the Reservation Aet April 20,1832, and he directed that the certificate be canceled and annulled. No further or formal cancellation was ever made, nor was the purchase-money ever refunded to the pre-emptors.

The objections of the officers of the Laud-Office to this title are believed to rest exclusively upon the Reservation Aet, with the exception of the first decision of the receiver, who held that his occupancy was in fact an occupancy for his lessor, Percifull.

Upon these facts the claimants are understood to contend that Belding acquired a right to pre-empt under the Aet May 29,1830, which was revived and restored to him by the Aet July 14,1832, notwithstanding the Reservation Aet April 20, 1832. It is also understood that they contend that the reasons assigned by the Secretary of the Interior, in 1851, for allowing their entry cannot be considered as legal conditions affecting its validity, and that the subsequent revocation by a succeeding Secretary, in 1860, was void.

Before proceeding to the consideration of the respective cases, it may be desirable to inquire as to the authority and limitations under and within which this court must act.

The alienation of the public lands has always been confided exclusively to the officials of the Land-Office. Upon well-understood principles, a power confided to a special tribunal cannot be reviewed by courts of law or equity. As between the Government and those seeking to become purchasers or grantees, the final action of the Land-Office has always been regarded as final by the judiciary. Its decisions, whether rightful or wrongful, have never been reviewed, either to enforce a sale by mandamus or to prevent it by injunction. But as these decisions have necessarily lacked many of the satisfying elements which are the essentials of a judicial judgment, the courts of the United States have devised and established two collateral principles in furtherance of the maintenance of legal rights. The first of these is that, when a pre-emption purchaser has paid his money and received from the officials of the local land-office his certificate of pre-emption, he thereby acquires an equitable estate, hereditable, devisible, assignable. The legal estate remains in the Government until the patent issues, but the property becomes severed from tbe public domain. After such property becomes so severed, notwithstanding that the legal title remains in' the Government, it is no longer the property of the United States, nor subject to reservation by Congress. Though not conveyed, it is nevertheless sold. The second of these principles is that, although the action of the Land-Office is conclusive as between the Government and the purchaser, it does not affect the rights of third persons. Thus, though the purchaser has been decreed by the Land-Office to be entitled to the property, and has been invested with the legal as well as the equitable title by patent, yet nevertheless, in contemplation of the judiciary, he takes only as trustee for the rightful owner; that is to say, for a more rightful purchaser. Thus collaterally the action of the Land-Office may be reviewed as between two parties asserting conflicting rights, provided always that the property has been severed from the public domain.

In 1870 the Hot Springs of Arkansas had been the subject of legal contention for thirty years, and every conceivable method which professional ingenuity could devise had been resorted to to obtain, directly or indirectly, the adjudication of a court upon the rights of the parties. No one had received a patent or pretended to have acquired the legal title, but each had again and again insisted that he was the equitable owner of the property. At the same time the interposition of Congress had been invoked for a confirmation -of one or the other of the titles. With such precedent facts existing, Congress passed the uAct in relation to the Hot Springs reservation in Arhansas ” June 11, 1S70, (16 Stat. L., 149.) It provides that “ any person claiming title, either legal or equitable,” may institute in this court “ any suitthatmayhe necessary to settlethe same; ” that suchsuits u shall he conducted and determined according to the mies and principles of equity practice and jurisprudence in the other courts of the United States ; ” that this court shall be uinvested with the jurisdiction and powers exercised hy courts of equity so far as may he necessary to give full relief; ¶ that separate suits, asserting conflicting rights, u shall he consolidated and tried together,” the court being directed to “ determine the question of title, ” and to grant “ all proper relief as heticeen the respective claimants, as well as between each of them and the United States; ” that if the final decision be in favor of the defendants, the court £i shall order such lands into-the possession of a receiver ;n and, if its decision be in favor of a claimant, it shall “proceed by proper process to put such successful claimant in possession,” and that upon the filing of its decree with the Secretary of the Interior, he shall cause a patent to be issued to the party in whose favor such decree shall be rendered.” We do not understand this statute to cede any interest of the United States, or to confer on others any right, legal or equitable. The equity to which it alludes is not a natural or moral equity, to be measured by the discretion of this court, but simply that equity which springs from the possession of a legal right. The case contemplated by the statute is that of a man in possession of lands under a contract of sale, but who has not received a deed from the vendor. He goes into a court of equity to obtain a decree for specific performance. If it be found that he is the equitable owner, the court compels the execution and delivery of the deed; if it be found that his contract of sale is invalid, the defendant obtains a decree, and, In this case, is to have the possession restored. There is nothing in the act which substitutes this court in the stead of the officers of the Land-Office to perform any duty which they may have left undone; neither is there in the act anything which, as against the Government, authorizes the court to review their proceedings and say they were wrong. After the court has reached the point of determining that the equitable title has passed to one or the other of the claimants, then, indeed, it becomes its duty to decree specific performance against the Government, or to go behind the action of the Land-Office, and ascertain which of the parties is the rightful purchaser. But until that point is reached, it is possessed of no more power, aside from jurisdiction, than any other court of the United States. In other words, the act is strictly remedial and jurisdictional, and its characteristic essentials are, first, that it confers jurisdiction as against the Government; and, second, that it enables all of the contending parties to have their conflicts settled by a single decree.

The first pre-emption title, that of John Percifull, is founded not so much upon what the officials of the Land-Office have done, as upon what they have left undone. It is claimed that on the onehand he has done everything which thelaw required should be done to vest in him the right of acquiring title, and on the other band that the officers of the Government have evaded the duties imposed upon them by law, and have erroneously refused to confer upon him the evidence of his legal rights. Waiving the question of jurisdiction, let us inquire how far this assumption of title can be sustained.

It has been the settled land-policy of the Government, so far as titles acquired by purchase and sale are involved, that the public lands shall be first surveyed upon a strict mathematical system of ranges and sections which is founded upon astronomical observations, and almost entirely disregards the irregular formations of natural boundaries. It has also been its policy that the public lands shall not be sold until, after being thus surveyed, they have been publicly offered for sale. Besides this strictly legal policy which contemplated a survey and public .offering to sell and a sale, there has been a parallel policy founded upon license and usage rather than upon express provisions of ■law. This policy has permitted the settler to go upon the public lands at any time, to occupy and cultivate, but to do so at his own risk. On the one hand he acquired no rights whatever; on the other he was not prosecuted for trespass. As these settlers have pushed out beyond the region of surveyed lands and beyond the confines of civilization, founding homes where they were legally trespassers, the legislative power from time to time has come to their aid by passing what are generally known as pre-emption acts. These pre-emption acts, however, conferred no vested rights, for the power of refusal to sell still rested in the Government, and pre-emption meant nothing more than the right to buy should the Government elect to sell, the privilege of pre-emption going merely to the exclusion of all the world as competing purchasers. If the Government should never elect to sell, the settler would be no better than though the pre-emption act had never passed. But in course of time the lands would be surveyed and offered for sale, and then, if no Government reservation intervened, the occupant would become the first and exclusive purchaser. It was inevitable that this should be the policy of the Government if it was to retain any control over its own lands; for it was not omnipresent, and, until the public surveys were made, could possess no specific knowledge of the lands which it should retain. If mere settlement before survey could work a sale, it was inevitable that the public lands would be alienated at the will of any individual who chose in this manner to become a purchaser. The pioneer, by going on the unsur-veyed lands, obtained the benefit of an option as against other men, but he also ran the risk of never acquiring title for himself. The Government forbore to hold him in damages for his trespass, and he placed himself without remedy against the Government for his imprudence. The public survey, therefore, was necessary to inform the Government whether it would sell or not, and until this public survey was made and the discretion of the Government to sell exercised, the officials of the Land-Office were without authority to confer rights upon purchasers, and acted in the strict line of their duty when they refused to allow entries upon such lands.

It has also become a settled principle with our courts that lands which have been offered for sale may be reserved from sale by Congress at any time before sale is made. When the officers of the Land-Office have issued their certificates and received the purchaser’s money, the land is severed from the public domain. Thereafter, if the sale be legal, neither Congress nor the Executive has power to undo what their agents have done. But until then the right of reservation is complete. It may work individual injustice, but it is a power which cannot be questioned. The case is that of a man whose agents, duly authorized to sell his lands, offer them for sale, and hold out inducements and give assurances. But so long as they enter into no binding contract, the would-be purchaser acquires no rights in the land, and the owner may withdraw it from the market at his pleasure. Under the Pre-emption Aet 1814, the agents of the Government were never authorized to sell this property. Before such authority was given, the owner decided that it should not be sold. Pereifull, therefore, never bought. He at best only placed himself in a position where he might buy if the Government ever decided to sell. His expectations never reached the result of a valid contract, and his representatives possess no title, legal or equitable.

In this case much has been said about the natural equity which Pereifull acquired, and about the intent of Congress, through the Hot Springs Aet 1870, to give legal effect to this equity. So far as the statute is concerned, it is not perceived, as between these contending parties, the claimants, and the Government in the character of defendant, that it confers a single interest or waives a single right. At the very threshold of the statute it is announced “ that any person claiming title, either legal or equitable, to the whole or any part of the four sections of land constituting what is Icnoicn as the Sot Springs reservation, &c., may institute against the United States in the Court of Claims, and prosecute to final decision, any suit that may be necessary to settle the same? This provision is conditional upon our jurisdiction. The party must claim a title,” which may be “ either legal or equitable,” and the suit must be one “ necessary to settle the same? If it be not a “ title,” “ legal or equitable,” the court is without jurisdiction to entertain his suit. The statute is strictly remedial. It gives a remedy for the assertion of a right, but it makes no grant on the part of the Government, and waives no right which the United States as defendants possess.

But aside from this construction of the statute, which as a matter of law may or may not be right, we are unable to perceive as a matter of fact that this claimant possesses any natural or moral equity which in any event would entitle him to the assistance of a court of equity. The Pre-emption Act, which is the foundation of the suppcjsed right, was in favor of one who at the time of its passage had “ actually inhabited and cultivated a tract of land? At the time when he is asserted to have acquired his right of. pre-emption, John Percifull actually inhabited and cultivated another tract of land. He came to the Hot Springs to carry on a business there, precisely as hucksters go to our fashionable summer-resorts to carry on their business during the season. When he first inhabited the springs, they were already inhabited by invalids, who came there for the restoration of health. His occupancy was as transitory as theirs, save that a constantly recurring business brought him back from season to season. The policy of the Government was in aid of those who went out into the wilderness to subdue it, and to make ordinary homes and to pursue ordinary avocations. It was a general policy, designed for general purposes, for those who actually inhabited and cultivated, and not where the cultivation and the inhabitancy were both nominal, or at best technical. The laws upon this subject have always contemplated a general policy, and have never been designed to favor those whom chance or sagacity led to some exceptional spot. There could be no general policy designed to cover exceptional oases. The Hot Springs were as exceptional as the salt springs and lead mines excepted by the act 1807 j and if through the ignorance and heedlessness of legislation the terms of such general reservations wore not accurate enough to cover the Hot Springs, it is a technical defect in the statute, which does not create an equity in the claimant.

The second pre-emption title, that of Ludovicus Belding, is also without those merits which would commend it to a court of equity. Its supposed merits have been pressed upon the court with unusual ability and zeal, and we do not doubt that long contemplation of the pre-emption laws, and the sight of-other men acquiring'by their machinery a title to other property, and the protracted contest and enormous outlay which have gone on in the way of litigation, have brought both counsel and parties to the sincere conclusion that their case is a hard one, which must awaken sympathy if not procure redress. But while the claim of Percifull has some of the attributes of a first settler, the title of Belding has nothing whatever to awaken sympathy. He entered upon the property after it had become a well-known resort in Arkansas, as well known as Saratoga was in New York, or the Sulphur Springs in Virginia. A small village shared the occupancy with him, and his business was selling groceries -to those who were as much first settlers as himself. His occupancy was not in his own right, for he held in the simple character of tenant, acknowledging the rights of his landlord, who was John Percifull, and, from the time he entered until the time he vacated, claiming nothing more. He declared by a written instrument his obligation “ to deliver all and every part of the buildings and improvements at said Hot Springs that I have or ever had unto John Percifull, if he demands the sameand u I have no pretension to the improvement of said springs except under the claim of the said John Percifull.” His occupancy and cultivations the year 1829, and his possession on the 29th May, 1830, were an accident of time, for he vacated the premises soon after the act took effect. In his life-time he certainly never supposed that he could assert a right to this property. After his death it almost seems as though some one had taken the statute in one hand and had run down the list of occupants with the other until he found a resident who could nominally comply with the conditions of the act. What is asserted, therefore, on behalf of his heirs is not an equity, but the stringent application of a legal technicality, which is this :

The Act May 29, 1830, under which the Belding heirs claim, provided “ that every settler or occupant upon the public land sprior to the passage of this act, who is now in possession and cultivated any part thereof in they ear 1829, shall be, and he is hereby, authorized to enter,” <&c., any number of acres, not more than 160 u provided, however, that no entry or sale of land shall be made under the provisions of this act which shall have been reserved for the use of the United States,” &o. At that time the Hot Springs had not been reserved; and if Belding were an occupant and cultivator and possessor within the intent of the act, and if the lands had been surveyed, he would have been entitled, apart from the prior rights of others, to pre-empt this quarter-section. But that statute further provided “ that this act shall be dnd're-main in force for one year from and after its passageDuring that year Belding made no entry, and under that act his right expired. But another act reviving the right was passed. Congress, however, in the mean while, had passed the Reservation Act April 20,1832, which in express terms provided that the Hot Springs “ shall be reserved for the future disposal of the United States,■ and shall not be entered, located, or appropriated for any other purpose whatever.” The same Congress, then, on the 14th July following, passed the supplemental act providing that persons “ entitled to a pre-emption according to the provisions of the act of 29th May, 1830,” “ and ivho have not been or should not be enabled to malee proof and enter the same within the time limited in said act in consequence of the public surveys not having been made and returnedf &c., “ shall be permitted■ to enter the said lands, on the same conditions in every respect as are prescribed in said act, ivithin one year after the surveys are made,” &c. The Belding heirs complied with the conditions of this act. They entered or attempted the entry of the land within one year after the surveys were made, and they claimed, as they still claim, that this act took the Hot Springs out of the Reservation Act, and was a “ disposal ” of them within its meaning.

We cannot accept this construction of the statutes. If the three acts be in pari materia, and are to be read together, then, at the time that Belding’s heirs sought to effect an entry, they would have read as follows: That every settler on the public lands in 1829 shall now, in 1838, have the right to enter, &c., provided that no entry shall be made upon land which is reserved from sale by act of Congress, (Act May 20, 1830, § 4,}' and provided further that the Hot Springs shall be so reserved. The rules for the construction of statutes have been applied to this case, with great ingenuity, to show that the third statute was a 11 disposal ” within the meaning of the second; but the controlling rule which must govern, aud which is often exclusively applicable to statutes as carelessly drawn as those of the United States, is, that they shall be construed according to the true intent and will of the legislative power. As has been said, the same Congress passed the last two acts. The first of these reserved the Hot Springs “for the future disposal of the United States,” and forbade that they should be u entered, located, or appropriated for any other purpose tchat-everP The second, three months later, allowed certain persons to mate proof who had not been able to make it within the time limited by the act of 1830. But when this Congress looked into the primary act of 1830 they saw it expressly written that entries and sales were not to be allowed upon land reserved for the use of the United States, and that the right of upreemption contemplated by this act ” should not extend u to any land which is reserved from sale by act of OongressP The supjfie-mental act did not repeal the Reservation Act, in terms. Can it be believed that the same Congress that passed both intended, through mere rules of construction, to undo by implication what they had expressly done by statute, or to allow a settler who had acquired no legal rights whatever to perfect his title, by means of the payment of $200, to that which had been deemed of so much importance as to be worthy of express statutory reservation? Unquestionably the same Congress never intended to reserve and to give away; to undo indirectly what it had just done directly. The act of revival must be applied to the original act as if the intervening statute had worked a vested right in favor of a third person, which is the Government in its corporate or proprietary as distinguished from its legislative character.

As already has been shown, these claimants also place their title upon the entry allowed at their special request, and for a particular purpose, by Mr. Secretary Stuart. It is certain that while that entry may have given a technical legal right, it imparted no equity to the case of these claimants. Obtaining it through the express declaration that it should not be used ag'ainst the Government, and then seeking thus to use it on the technical ground that the representations of the parties and the purpose of the Secretary cannot' control his action, is not a foundation on which to place an appeal to the favorable consideration of a court of equity. It may be questionable whether the Government would not have had a right to file a cross-bill for the purpose of setting aside the entry as fraudulently obtained, but we may lay that question aside under the construction we have given to th e statute. The en try was illegal because the Secretary was forbidden to allow it. The reservation act bound him and the parties equally, and they could take nothing by his violation of the statute. Our conclusion is that these claimants have no title, either legal or equitable.

The last title, that of Elias Eector, rests upon the construction of a single statute, which is the New Madrid Act, (3 Stat. L., p. 211, § 1.) A pre-emption title is founded upon purchase and sale, but a Hew Madrid title is founded upon an exchange of lands. The purpose of the law was to allow persons in a certain district to give their injured lands as the sole consideration for others which they were authorized to select. When the selection, termed a location, was complete, “ according to the provisions of this act,” the title of the party in the injured land was to “ revert to and become absolutely vested in the United States.” Conversely, when the location was complete, according to the provisions of the act, the land selected was severed from the public domain and became the property of the locator. If in the case of Eector a location was made in 1820, then its alleged defects were cured by the first section of the Act April 26,-1822, (3 Stát. L., 668,) and it should “ be perfected into a grantP If no location was made, then the New Madrid warrant is barred by the second section of the same statute. The Act March 2, 1827, (4 Stat. L., 219,) is to the same effect, except that it does not contain a statute of limitations, but it helps only “ locations of lands heretofore made according to law,” and leaves the limitation of the preceding act as to New Madrid warrants unrepealed. What, then, was a location under the New Madrid Act?

The act requires that after the New Madrid warrant or certificate of destroyed lands has been issued, 11 and after a loca tion thereof has been made, on the application of the claimant, by ■the principal deputy surveyor for said Territory, or under his direction,it shall be the duty of this principal surveyor “ to cause a survey thereof to be made, and to return a plat of eaeh location made to the said recorder, to go with a notice in ivriting designating ■the tract or tracts thus loeated and the name of the claimant on whose behalf the same shall be made, which notice and plat the said recorder shall cause to be recorded in his office, and shall receive from the claimants for his services on each claim the sum of $2 for receiving proof , issuing the certificate, and recording the plat and notice as aforesaid.” (§ 2.) The recorder was then to deliver to the party a certificate, stating that he was entitled to a patent for the tract designated j but this certificate was to be filed with the recorder within twelve months after its date, and the recorder was then to issue another certificate in favor of the party, which, on being transmitted to the Commissioner of the General Land-Office, should entitle the party to a patent. In this case it will be recollected that Hammond and Rector, the holders of the New Madrid certificate, applied for a location thereof to the surveyor-general for the Territory, and that he caused a survey to be made, which was returned to and approved by him, and filed in the surveyor-general’s office; but by reason of instructions then received from the Secretary of the Treasury, who was then the head of the Land-Office, the surveyor-general took no further steps in the matter, or, in other words, never returned a plat of the location to the recorder with the notice in writing designating the tract located and the name of the claimant on whose behalf it was made.

But between the New Madrid Act of 1815 and the alleged location by Rector in 1820, the Act April 29, 1810, (3 Stat. Li, 325,) intervened. It established a new office of surveyor of the public lands in Illinois and Missouri, afterward termed the surveyor-general; it transferred to him all the duties of the •“principal deputy surveyorit directed that he should transmit plats of all lands surveyed to the register and to the General Land-Office; it provided that all plats of surveys belonging to any office theretofore established for the purpose of executing or recording surveys should be delivered to this surveyor; and it gave him power to certify plats of survey to be used as evidence in courts. This act, it is claimed, in effect, transferred some of the powers of the recorder to the suiveyor-general, and by necessary implication changed the relative duties of the two offices.

It has been argued with unusual learning and power that the location was complete when the survey was made, returned, approved, and filed in the office where it was permanently to remain, and that thereby the title to the land injured by the earthquake reverted to and vested absolutely in the United States. We are not unmindful of any part of this cogent argument. Weperceive that everything had been done by the parties which the law required them to do, and that everything which remained to be done was made a statutory duty on the part of the officers of the Government. We also perceive that by the surrender of the first certificate a party might suffer irreparable loss, and that he was without legal means tó compel the surveyor-general to act by transmitting the plat and notice to the recorder. We are also aware that the Supreme Court has enunciated the principle that things which the public officers ought to have done should be regarded as having' been done. (Lytle v. Arkansas, 9 How., 314.) But the Supreme Court has also declared that, before the New Madrid or injured lands “ shall revert to and become absohitely vested in the United States,v the plat of the location and the notice in writing designating the tract located must be returned to the recorder of land-titles. The precise point presented by this case has, we believe, never been presented to the Supreme Court, but the declaration or construction to which we have alluded runs through six of the decisions of the court, beginning with 13 Peters and continuing to 19 Wallace. (Bagnell v. Broderick, 13 Pet., 436; Barry v. Gamble, 3 How., 32 ; Lessieur v. Price, 12 id., 57; Hale v. Gaines, 22 id., 144; Rector v. Ashley, 6 Wall., 143; McKay v. Easton, 19 Wall., 619.) With that reiterated opinion of the Supreme Court before us, we do not feel at liberty to regard it as the mere dictum which might drop from a single case. While we do not feel satisfied with the construction which has been directly or indirectly given to the statute, and while we think the facts of this case will present a substantially new question to the Supreme Court, upon which it will not be bound by its former rulings in other and essentially different cases, yet still we do not feel at liberty to disregard what the court of last resort has so repeatedly said, and deem it best to leave to that tribunal the duty of correcting its errors, if errors they be. We must therefore decide that no location was ever made by Hammond and Hector, and that their representatives have no title, legal or equitable.

A decree will be prepared by the counsel for the Government-conformable to this opinion, which will be settled at chambers, on five days’ notice to the adverse parties. (Post, p. —.)

Loeing, J.,

dissenting:

The statement of facts by the court recognizes the fact that in Rector’s Case, on due application, under the statute, by Hammond and Hector, the survey and plat of the land were made by the surveyor-general, and that by his omission the plat and notice of location were not returned by him to the recorder’s office, as the statute required.

And if there is to be applied to this case the rule laid down by the Supreme Court in Lytle v. Arlcansas, which is the established rule in equity law, under which, by the statute referring this case here, it has been heard, then 1 think that the case in 19 Wallace, and thelike previous cases cited in’the opinion of the court, do not impugn Hector’s title, but establish it.

The rule in equity enforced in Lytle v. Arkansas was that that which ought to have been done shall be taken as done.

The thing omitted here was the return of the plat and notice of location to the recorder’s office by the surveyor-general. Had the return of the plat and notice of location been made by the surveyor-general, the location would have been complete, and the right of the locators to the land absolute, by all the authorities above referred to. And that is the result if the rule in equity above referred to is applied, and that which the surveyor-general ought to have done is taken to have been done by him. And the fact is then found for the claimant here, for want of which the judgments were against the plaintiffs in the cases cited, and they all become authorities for Hector.

And I think that this case is stronger than that of Lytle v. Arkansas. For in that case the act not done was taken as done against the defendant, though the officer was not his agent, while here the officer was the agent of the United States, who are directly liable for his non-feasance; for though the United States are not liable for the defaults of their officers as defaults, they are liable for the non-performance of their own contracts. And the Supreme Court have decided that cases under the ■statute of 1815 are cases of contract. And in equity a party to a contract is entitled to its specific performance against him who has failed to perform it, and I think Kector is so entitled here.  