
    Grand Gulf Railroad and Banking Company et al. vs. Kitturah Bryan.
    In order to entitle any one to a preference in becoming a purchaser of a tract of land or, as it is called, a preemplioner, under the act of congress, of March, 1803, it is necessary that he should bring himself under the conditions of the act.
    In equity, as well as at law, the plaintiff must recover on the strength of his own title, and not on the weakness of his adversary’s title ; a perfect equitable title must therefore be shown in equity, to entitle the party to recover, as a perfect legal title must be shown at law; possession will protect against any but a perfect equitable title.
    Under the act of congress, of March, 1803, which conferred the right of preemption to land not claimed by virtue of the two first sections of the act, nor by a British grant, nor by the articles of cession from Georgia, so long as land was subject to any such superior claim, it was exempt from the right of preemption ; but when such claim was decided to be invalid, and rejected by the commissioners, the land became liable to a preemption claim, as other public land, under the third section of the act.
    Under the act of congress, of March, 1803, which required a party, in order to entitle himself to a preemption in land claimed under the act, to have, inhabited and cultivated the land, on the 23d of March, 1803 ; it was not enough to reside on the land ; cultivation was also necessary. Where, therefore, M., claiming under a Spanish warrant to B., dated in 1795, and a deed of bargain and sale from B., dated in February, 1804, claimed a tract of land under the first and second sections of the act, before the commissioners appointed by the act, and, in support of his claim, proved that B. cultivated the land in 1802, and moved on it the same year, and continued to inhabit and cultivate it until he sojd to M. ; held, that M. showed thereby that he was not entitled to a preemption in the same land ; as B. was at the time fixed by the law inhabiting and cultivating the land, and therefore, if anybody, B. was entitled to the preemption, and not M.
    How far the decision of the commissioners, under act of March, 1803, allowing a preemption, is conclusive, quaere? It seems that it is, at least, as regards the government.
    A mere right of preemption is not a title; it is only a proffer to a certain class of persons that they may become purchasers, if they -will; without payment, or an offer to pay, it confers no equity; and only confers one where the party has consented to accept the offer by payment, or by claiming the benefit of the law in the proper manner, within the required time.
    The commissioners, under the act of congress of March, 1803, having, on the 19th of December, 1806, confirmed a preemption to the “ legal representatives of G. M. in two hundred and forty acres of land,” and the receiver of public moneys, having, on the 1st of January, 1807, given a receipt in favor of the “ legal representatives of G. M.” for $ 120, as the first instalment on two hundred and forty acres of land, under a preemption right, and at the same time charging, on the books of his office, the representatives of G. M., as debtors, in the sum of $480 for the tract of land, and giving credit for the $ 120 paid, K. B., in 1839, filed her bill in chancery, claiming the two hundred and forty acres, as the sole heir of G. M.; alleging her infancy and cover-ture as having continued to the year 1838, and claiming that the confirmation to the legal representatives of G. M. of the preemption and the payment ■ by the legal representatives, was a confirmation to and payment by her; the court held, from the following facts, that the confirmation was not to her, nor was the payment made by, or for her. 1. G. M., in his lifetime, in February, 1804, filed a claim before the commissioners for ten hundred and sixty-six arpens of land, including the two hundred and forty acres, as assigned by deed of one B., who claimed under a Spanish warrant. 2. G, M. died in October, 1804, and his widow, and mother of K. B. administered on his estate in the same month. 3. On the 23d of Octobor, 1804, G. M.’s estate was appraised at $675. 4. On the 13th March, 1805, the probate court decreed that the land in question, of G. M. should be sold by the administra-trix, to pay his debts. 5. On the 10th of July, 1805, the land commissioners, under the act, entered on their minutes, that the legal representatives of G. M. claimed ten hundred and sixty-six arpens of land, by virtue of the Spanish warrant to B., and B.’s deed to G. M., of date, February, 1804; and also that H. il. had proved that from 1802, up to the time of sale to G. M., the land in question was inhabited and cultivated by B. (This application to the commissioners, the court presumed, was made by the widow and administratrix, as she had obtained the order to sell the land, in March, 1805, and in her report to the probate court she stated that she had advertised the land, and was not able to sell it, in consequence of doubts as to the title of G. M.; but she again advertised, and sold; and pending this action of the administratrix, the entry was made on the journal of the commissioners.) 6. On the 13th of August, 1805, commissioners were appointed to audit claims against G. M.’s estate, and report at the next term of the court. 7. On the 10th of December, 1805, after a second advertisement, the administratrix sold the land to the said H. H. for $50. 8. At the February term, 1806, the administratrix reported the sale to the court, which was confirmed ; the report recited the insolvency of G. M.’s estate; the prder of sale to pay debts; the due advertisement, the failure to sell; the second advertisement and sale to said H. H. for $50. 9. On the 13th February, 1806, the administratrix made a deed to said H. H. to the land, conveying G. M.’s interest, or a claim to a preemption right to the land. 10. The administratrix died in March, 1806; the complainant being then four years old, and her only brother, since deceased, abouttwoyears old; who were thus left without parent, guardian, or relation,' near to protect their persons or property, nor was a guardian appointed for them at any time. 11. On the 11th of August, 1806, J. G. C. was appointed administrator de bonis non on G. M.’s estate ; and commissioners were again appointed to audit claims against it. 12. On the 19th of December, 1806, the land commissioners ordered two hundred and forty acres of land to be surveyed for the legal representatives of G. M.; and on the 22d of the same month, entered the claim of the legal representatives of G. M. to two hundred and forty acres confirmed. 13. On the 23d of December, 1806, one day after the confirmation, H. Ii., by indorsement on the deed from the administratrix, transferred his interest to S. W. 14. On the 1st of January, 1807, the receiver of public moneys gave the receipt in favor of the legal representatives of G. M. for $ 120, as the first instalment on the two hundred and forty acres of land, and at the same time charged in the boohs of his office, the representatives of G. M. as debtors, in the sum of $480, for the land, and credited them with the $ 120 paid. 15. In the latter part of the year 1807, the complainant and her brother Thomas, were taken by a relative to Louisiana, where he lived, where they remained; the complainant having married in 1817, and being under coverture until 1838. 16. On the 3d of January, 1810, S. W. sold the land in question to C. P. by deed, in which it is recited that the land sold was the same land granted by preemption certificate, dated 1st January, 1807, to the legal representatives of G. M. ; and the land was sold, subject to the instalments due the United States, which were to be paid by C. P.; to this deed J. G. C. was a witness, who was administrator, de bonis non, of G. M.’s estate. 17. On the 12th of February, 1810, other commissioners of insolvency on G. M.’s estate, were appointed in room of those appointed before. 18. On the 22d of September, 1810, C. P. paid the instalments due the government on the land, and took from the receiver a certificate, in his own name, as assignee of the legal representatives of G. M.; and from C. P. the defendants to the suit, who are in possession of the land, derive title. 19. Besides these facts, there was a memorandum by J. G. C., as attorney for the heirs of G. M., on the books of the land commissioners, without date, that if the claim under the Spanish warrant failed, they would take a preemption ; and also a memorandum on the records of the commissioners, without date, that “ the claimant requests that the board of commissioners will only grant or reduce the within quantity to two hundred and forty acres.”
    
      The certificate of the receiver of public moneys, that a sum of money was paid him on a preemption by the preemptor, is not conclusive; it is susceptible of explanation; and it may be shown to be a mistake, or that the payment was made by a different person.
    The term “ legal representatives,” used in the act of congress of March, 1803, touching preemption claims under the act, does not mean children or heirs only; it embraces also assignees and grantees, who, in regard to the thing assigned or granted, are the legal representatives of the assignor and grantor.
    
    Where there is an ambiguity in an instrument under which a party claims, it is incumbent on the claimant to explain it; as where a description suits two persons, the claimant must show that he was the person intended.
    In a controversy between the heir of a preemptor, whose preemption had been confirmed in favor of his legal representatives, and the assignee of the purchaser at a sale by the administrator of the preemptor of his claim to the preemption, on the question as to whether the heir or assignee of the purchaser had made the payment of the first instalment due for the preemption to the government, for' which payment the receiver of public money had given a receipt in favor of the legal representatives of the preemptor, and which payment had been made after the administrator’s sale, it was held, that the fact that the deeds from the administrator to the purchaser and from the purchaser to his assignee were filed in the register’s office to whom the payment was made, was a strong circumstance to prove that they were filed there as proof to the register of the purchase, and of the purchaser’s right to make the payment under the preemption-right, as being the legal representative of the preemptor; which circumstance was also strengthened by the fact, that the claim was confirmed on the 22d of December, 1806, in favor of the legal representatives of the preemptor, and on the next day, the purchaser at the administrator’s sale' of the preemption-right sold it to his assignee, and eight days after this sale, the payment was made to the register and the deeds filed in his office.
    Where a preemption claim, under the act of March, 1803, was confirmed in favor of the legal representatives of M., in December, 1806 ; and C. P., in September, 1810, made final payment of the last two instalments due the government on the land, the other having been previously paid; and C. P. at the time of payment filed his evidences of title with the register, showing a derivative title from M., through a sale by his administrator of the preemption-right, and the register issued to C. P. a receipt for the payment in C. P.’s name, as the assignee of the legal representatives of M.; it was held, that such payment and receipt were a complete admission by the register that the assignor of C. P. was the legal representative of M.
    Possession of real estate is an apparent right, and when it has been long continued, it is highly favored by the law which sustains it by all reasonable presumptions; almost every variety of written evidence of title will be presumed in favor of long possession ; all presumptions being in favor of the possessor; none against him.
    Where a man died in 1803, entitled to a preemption in land under the act of congress of 1803, and his estate was insolvent, being worth, exclusive of the preemption-right, hut $ 675; and his administratrix sold that preemption-right in 1805 for $ 50 ; and after such sale, in 1806, the land commissioner awarded to the legal representatives of the preemptor the preemption in two hundred and forty acres, on payment of $480; one hundred and twenty of which was paid to the land receiver in 1807, and he gave a receipt in favor of payment by the legal representatives of the preemptor, but it did not appear positively who made the payment; and the residue of the sum due on the land was paid by the assignee of the purchaser at the administralor’s sale in 1810; it was held, under the facts, scarcely possible that the administrator de bonis non, of the preemptor, appointed in 1806, electing to regard that sale by his predecessor as void, for want of due notice, made the payment on the land as an investment for his insolvent intestate’s estates, especially when it did not appear that the sale by the administratrix was void for want of notice; and no decision had then, or for a long period after, been made, that the records of the probate court must show affirmatively that the notice of such sales required by the statutes had in fact been given.
    Appeal from the superior court of chancery; Hon. Robert H. Buckner, chancellor.
    Kitturah Bryan filed her bill in the court below, stating that on, and sometime previous to the 22d of December, IS06, she and her brother Thomas were sole heirs at law and legal representatives of Gideon Matlock theretofore deceased, — and entitled to a right of preemption and of preference in becoming the purchasers from the United States of the land in controversy, at the price at which the other lands of the United States, in the territory of Mississippi, were by act of congress of the 3d of March, 1803, directed to be sold; which right was secured to her and her brother, and accrued to them by virtue of the provisions of the third section of said act of congress, entitled “an act regulating the grants of-land, and providing for the disposal of the lands of the United States, south of the state of Tennessee.” That to evidence said right, Thomas Rodney and Thomas H, Williams, being a majority of the board of commissioners, appointed by the president of the United States in pursuance of the provisions of the sixth section of the above entitled act, and for the purposes therein expressed, gave a certificate, dated 22d day of December, 1806, directed to the register of the land-office west of Peal river, stating that she and her brother, (in the name and by the description of “ legal representatives of Gideon Matlock,'deceased,”) were entitled to a right of preemption of two hundred and forty acres of land, in Claiborne county, on the Mississippi river, by virtue of said act, a copy of which is filed with the bill; that said certificate was duly entered with the register of the land-office, at Washington, Mississippi, within the time prescribed by law, where it now remains on file; that upon the receipt of said certificate, the register of said land-office, on the 1st day of January, 1807, charged the complainant and her brother, in the name of “ legal representatives of Gideon Matlock, of Claiborne county,” upon the books of his office, as debtors to sales of public lands, $480, for a tract of land on the Mis-sissppi river, being a preemption-right, containing two hundred and forty acres, at $2 per acre.
    That on the first day of January, 1807, the first payment upon said lands was made by her brother to the receiver of public moneys, at the land-office at Washington; being the first instalment of $120, of the purchase-money; and that thereupon, John Henderson, at that time receiver, issued his receipt therefor, in favor of her and her brother, in the name of “legal representatives of Gideon Matlock;” which receipt, (being then an infant of five years,) she has never seen, but believes it was forwarded to the general land-office at Wash-ton city, where she believes it now is; and that, on the same day, 1st January, 1807, the register of said land-office, granted to her arid her brother, a certificate of said payment, by name of “ legal representatives of Gideon Matlock, deceased ; ” which she believes has been lost or destroyed, by time or accident; and on the same day made an entry upon the books in his office, whereby cash is charged as debtor to “ legal representatives of Gideon Matlock, of Claiborne county,” for $120, the first instalment of the purchase-money of a tract of land on Mississippi river, per receipt of J. Henderson, receiver, No. 122, dated 1st January, 1807, and his certificate No. 117.
    That in the month of March, 1806, Elizabeth Matlock, mother of complainant, died in the county of Claiborne, Gideon Mat-lock, the father, having died in October, 1804; and at the time of the death of the mother, the complainant was four, and her brother Thomas two years of age, and had no guardian of person or property during minority. That in the year 1807, and after the first payment was made, complainant, then five years of age, was removed by a relation to Louisiana, where she continued to reside until the year 1838, when she visited Mississippi, without changing her residence; that after the death of the parents of herself and her brother, and while they were infants, incapable of holding personal possession of said lands, and after they had been removed to Louisiana, some person, charged to be one Charles Patterson, now deceased, on or about the 10th of January, 1810, entered upon said lands, buildings and improvements, and continued to hold possession thereof; as did also those claiming to be his heirs, until the 2d of May, 1833, and that, at the time of said entry, there was a log dwelling-house and out-houses, and sixty acres cleared and fenced, before the 30th of March, 1805, worth $600, and that said Charles Patterson, and those claiming to be his heirs at law, continued to occupy said lands from the 10th of January, 1810, to 2d May, 1833, and during that time enjoyed the rents and profits thereof, worth $75 annually; that, after the first payment, but before the final payment, Thomas Williams, surveyor-general, caused said lands to be surveyed; that some person unknown, charged to be said Charles Patterson, but whose name does not appear upon the books of the register, well knowing that complainant and her brother were infants, and had been removed from the Mississippi territory, and had neither parent, guardian, friend or relation, to protect their rights, with intent to defraud them out of their rights to said land, on or about the 22d day of September, 1810, went to the said register, and falsely and fraudulently represented himself to be the assignee of herself and her said brother, by and in the name of “the legal representatives of the said Gideon Matlock,” and made final payment for said lands as well as for fifty-nine and fifty-three one-hundredths acres, which were ascertained to be included above the two hundred and forty originally supposed to be the quantity; and that said fifty-nine and fifty-three one-hundredths acres was then charged to Gideon Matlock’s assignee; and that the register on that day executed his receipt for the sum of $489 72, being the balance of the price of said land, to the said pretended assignee, as assignee of the “ legal representatives of Gideon Matlock; ” which receipt was soon thereafter forwarded to the secretary of the treasury of the United States ; and is now on file in the office of the commissioner of the general land office.
    Complainant believes no certificate of final payment was ever issued by the register of the land-office at Washington, Mississippi ; but if so issued, charges that on the said 22d September, 1810, after the receiver’s receipt was filed with him, he issued a certificate reciting, that in pursuance of law, “legal representatives of Gideon Matlock, deceased, on the first day of July, 1807, purchased of the register at Washington the lands before described, containing two hundred and ninety-nine and fifty-three one-hundredths acres, at the rate of two dollars per acre, for which Charles Patterson assignee, had made full payment; which certificate complainant had never seen, and if not in possession of J. M. Rhodes and wife, it was destroyed by time or accident; of all which the register made a record, which was filed as an exhibit to the bill. That in the year 1820 or 1821, her brother, being under twenty-one, died .intestate and without issue, leaving complainant his sole heir, and sole heir of Gideon Matlock, deceased. That on 15th February, 1817, she being then under eighteen, intermarried with one Wilson R. Squires, in the parish of Catahoula, Louisiana; and from that time until the death of Squires, on the 30th of July, 1836, they continued to reside in Louisiana and she continued to be his lawful wife. And after his death, to wit, on the 28th of March 1838, she married one Thomas Bryan in the same parish, who, on the 18th of July, in the same year, and in the same parish, died intestate.
    And further, that said Charles Patterson, being in the possession and occupancy of said land, and claiming title thereto, as aforesaid, in September, 1820, died without issue; and that thereupon various persons (whose names are given) being or pretending to be heirs at law and legal representatives of the said Charles Patterson, deceased, entered upon said lands, all of whom are made defendants ; that on the 2d day of May, 1833, one Albigina W. Putnam, being or pretending to be agent and attorney in fact for said persons, executed and delivered to one Daniel B. Eagan, a deed of conveyance of all the title, &e. of the heirs or those pretending to be heirs of said Patterson; of the validity and extent of the power to do which, complainant was not informed; but she charges the same was void, and did not pass any estate real or pretended, which the said heirs of the said Charles Patterson had in said lands; and that after-wards Eagan, to wit, on the 24th May, 1834, executed and delivered to one Amos Whiting a deed of conveyance and quitclaim for the one undivided half of said lands, who entered upon and continued to claim title to a portion thereof until the time of his death. And said Eagan after having conveyed divers portions to divers persons, afterwards on the 17th day of October, 1834, sold and conveyed to Thomas Holliday of Copiah county, the entire residue of his pretended interest and estate in said lands, and afterwards, about the 25th day of October, 1834, died in Claiborne city intestate; and that since that time Holliday has entered upon said lands, and sold to various persons portions thereof.
    And that said Amos Whiting, after having sold divers portions thereof to divers persons, on or about the 27th of August, in the year 1837, died intestate, leaving a son William Whiting, about sixteen years old, his sole heir, to whom such parts of said land as he died seized of descended; and leaving also Maria Louisa, his widow, who claims dower in certain portions of the same, who has since intermarried with J. M. Rhodes; all of whom are made defendants.
    
      Various persons are made defendants who are in possession of parts of said lands. She charges that said defendants hold possession and claim title to said portions of said lands, by virtue of said fraudulent and pretended titles of Patterson, and by none other; and that the same are absolutely void as against her; and proposes an account shall be taken of the amount paid by Patterson ior the land, and of the rents and profits of the land, and avows a willingness on part of complainant to pay whatever sum may be after deducting the value of the rents and profits.
    She charges that Patterson had full and complete notice of her rights in and to the lands at the time; that he so falsely and fraudulently represented himself as the assignee of Gideon Mat-lock, and made final payment to the receiver of the land office at Washington, Mississippi, therefor; and that, at the time of said final payment by Patterson, he well knew and had full notice, that the right to the preemption and the equitable title to the lands were in her and her brother, and not in him. And that all of the defendants, when they purchased or conveyed, or came into possession of the lands or any portion thereof, well knew and had full notice of her claim and right, and that she was the sole remaining “ legal representative of said Gideon Matlock,” and the original confirmee of said preemption ; and that she and her brother had made the first payment upon said lands, and that Patterson, in his life, and all holding under him, held and hold as trustees for her, and that the final payment made by Patterson was in equity and good conscience a payment for her use and benefit.
    The bill prays for an account as to the moneys paid by Patterson for the lands, and as to the rents and profits; and that all persons in possession of any portion thereof may, on final hearing, be decreed to surrender possession thereof to the complainant, &c.
    The answer of J. M. Rhodes, Thomas Holliday and William Whiting, sole heir of Amos Whiting, by his guardian ad litem. J. M. Rhodes admits that complainant and her brother were heirs of Gideon Matlock, but denies that as such, they were entitled to a preemption and right of preference in becoming the purchasers of the tract of land described in the bill, on 22d December, 1806, or for sometime previous thereto, and alleges that Gideon Matlock having died before the L4th day of October, 1804, letters of administration on his estate were then granted by the county court of Claiborne county, Mississippi, where he was domiciled at the time of his decease, to Elizabeth Matlock, his widow, who, in that character, at a special term of said county court, held on the 15th day of March, 1805, made application to said court, and from it obtained an order, that the tract of land described should be sold to satisfy the debts due from said state; and that, at the February term, 1806, of said court, she, as such administratrix, made report of the sale of said tract of land, agreeably to said order, which was received by said court and ordered to be recorded.
    That at said sale, one Hezekiah Harmon became the purchaser of said land and right of preference and preemption ; and that the land ordered to be sold, and actually sold, and by Harmon purchased, was the same land claimed, and that by said sale the right of said heirs, if any they ever had, passed to and vested in Harmon.
    That whether said heirs had or had not a right of preference or preemption is immaterial, for they charge the fact to be that they never did, nor did any one for them make such purchase of the United States : and that said Gideon Matlock died destitute of the means of making the same, and that said heirs were unable to avail themselves of their right of preemption, if right they had.
    That on the 23d of December, 1806, Harmon conveyed the land to a certain Samuel Wallace, on the same paper with the deed of E. Matlock.
    On the 3d of January, 1810, Wallace conveyed by deed to Patterson. On the 2d day of May, 1833, the heirs of Patterson, by their agent and attorney, conveyed the land to one Daniel B. Eagan. On the 27th of May, 1833, Eagan conveyed it to Amos Whiting, father of one of the defendants.
    That the complainant, being then a citizen of Louisiana, did, on the 27th of July, 1831, in conjunction with her then husband, Wilson R. Squires, sell and convey said lands to one William King, of Claiborne city, and. a copy of which deed is filed. That King, on the 15th of May, 1833, by deed conveyed the land to Whiting.
    The defendants deny that the certificate of 22d December, 1806, in the bill spoken of, was given or made to secure to the complainant and her brother, the lands therein referred to, or that by the description of the “legal representatives of Gideon Matlock, deceased,” they were the persons intended — but that by said sale by said administratrix, the purchaser of the right had become his legal representative; and to secure him in his right, said certificate was made, and by the terms “legal representative,” &c., he was meant.
    They deny that the charge in the books mentioned in the bill, was a charge to the complainant and her brother, or that they or any one for them, ever paid or offered to pay into the office, on account of said lands, any sum of money whatever; or that they or any one for them ever, directly or indirectly, performed any act, or did or caused to be done anything whatever to secure said land; but allege, that every step which was taken, every cent which was paid, and every entry made and certificate given, -was done by and for those claiming under the sale made by the administratrix as aforesaid, and for the purpose of securing said land to and for the claimant under that order.
    The defendants admit that about the time stated in the bill, Patterson took possession of said land, and allege that possession had before been taken by the purchaser at the sale by the ad-ministratrix, immediately after the sale; and that it has been held by him and those claiming under him, thence hitherto adverse to all the world ; which long continued adverse possession, the defendants set up, and rely on in bar of complainant’s pretended claim.
    They admit that Matlock built a log-cabin and cleared fifteen acres, but say the balance of the improvements when Patterson took possession, was made by those claiming under the sale by the administratrix.
    
      They insist that the papers exhibited fully explain the reason why Patterson, as assignee, made payment for the lands, and constitute a full answer to all the allegations on the subject of the assignee, and they admit that a .certificate did issue to Patterson that he should receive a patent.
    They deny that any part of the transaction was fraudulent, and allege that the whole was conducted in good faith, without any imagination or suspicion ; that neither the heirs of Gideon Matlock, nor any other person than the purchaser at the sale by the administratrix, had, or pretended to have interest in or claim to said laud or any part of it.
    The answer admits the allegations of the bill as to action of the land commissioners, the age of the heirs of Matlock, the marriage of complainant, and other charges not denied or explained. The answers of the other defendants were in all points similar.
    The proof of complainant was in substance as follows, viz.:
    Extracts from the books and files of the register of the land office at Washington, Mississippi, taken from the records of the commissioners appointed under the act of March 3d, 1803, consisting of:
    1. A statement of a claim of Gideon Matlock, of 1066 acres, made before the commissioners in these words: — “ Gideon Matlock claims one thousand and sixty-six acres of land lying in Claiborne county, on the river Mississippi, having such shape, marks and boundaries as are in the annexed plat, by virtue of a decree, warrant or order of survey from the Spanish government to one John Burnett, bearing date the 27th August, 1795, given by Governor Gayoso, of the Natchez district, which grant of land was improved at that time ; and the said John Burnett was then the head of a family, and afterwards surveyed the said land and conveyed it to the said Gideon Matlock. Given under my hand this 16th February, 1804. Gideon Mati.oce.”
    
      2. “In the entry made by Gideon Matlock, deceased, under the first section of the act of congress, if that claim is not confirmed, the heirs will take 640 acres as a right of preference.
    “ For Matlock’s heirs, J. G. ClaREE, Attorney.”
    
      3. The plat of the survey of the land, which was marked in the centre of the diagram— “John Burnett’s map of 1066 acres land,” and to which was appended the following description, viz.:
    “ The above described plat of 1066 acres of land is situated in Claiborne county, on the south side of the Mississippi river, just below the Grand Gulf, and bounded on the southeast side by Hartley’s land, on the northwest by the Mississippi, and the other two sides by vacant land, and by such natural and artificial marks and boundaries as are represented in the above plat.”
    “ June 20, 1801.”
    The following sentence without date, is copied in the record immediately after the description of the plat of survey, viz.:
    4. “ The claimant requests that the board of commissioners will only grant or reduce the within quantity to 240 acres.”
    5. “ Wednesday, the 10th of July, 1805. Present, Thomas Rodney, Robert Williams and Thomas H. Williams. No. 271. Legal representatives of Gideon Matlock, deceased, claim 1066 arpens in Claiborne county, on the Mississippi, in virtue of a Spanish warrant of survey to John Burnett, dated 27th August, 1795 ; also a bargain and sale from the said Burnett to Gideon Matlock, deceased, dated 8th of February, 1804, produced.
    “ Witness, Hezekiah Harmon, says: that the land in question was settled in the year 1802 by John Burnett, who moved on it the latter end of the same year, or the beginning of 1803, and continued to inhabit and cultivate it until he sold it to Matlock ; Burnett was the head of a family at the date of the warrant.”
    6. “Friday, the 19th of December, 1806. Present, Thomas Rodney and Thomas H. Williams. Ordered, that the surveyor of the lands of the United States, south of the state of Tennessee, be requested to survey the following tracts of land, No. 271. The legal representatives of Gideon Matlock, deceased; 240 acres on the river Mississippi.”
    7. “ Monday, the 22d of December, 1806. Present, Thomas Rodney and Thomas H. Williams. No. 271. The legal representatives of Gideon Matlock, deceased. 240 acres. Claim confirmed. Certificate D, No. 208, issued, which certificate (D) No. 208, was in these words, viz.:
    
      8. “ Registers, No. 271.
    “ To the Register of the Land Office, west of Pearl River.
    
    “We do certify that the legal representatives of Gideon Mat-lock, deceased, are entitled to a right of preemption to a tract of 240 acres of land, in Claiborne county, on the river Mississippi, by virtue of an act, entitled, ‘ An act regulating the grants of land, and providing for the disposal of the lands of the United States south of the state of Tennessee.’
    “Given under our hands at the town of Washington, in county of Adams, this 22d day of December, 1806, and of the Independence of the United States the thirty-first.
    “ Thomas Rodney, ) . . “Thomas H. Williams, } Commissioners.
    
    “ Teste. PARK Walton, Clerk of the Board."
    
    9. “ Receiver’s Office at Washington, Mississippi Territory,
    
    ls¿ January, 1807.
    “ No. 122. Received of the legal representatives of Gideon Matlock, of Claiborne county, the sum of one hundred and twenty dollars, being the amount of the first instalment of the purchase-money of two hundred and forty acres of land, being a preemption right. John HendeRson, Receiver."
    
    “ Dollars 120 00.”
    10. “ Receiver’s Office, west of Pearl River,
    
    
      September 22, 1810.
    “ Received of Charles Patterson, of Claiborne county, assignee of the legal representatives of Gideon Matlock, the sum of four hundred and thirty-three dollars thirty cents, which, with the sum of five dollars and seventy-six cents, the discount allowed for three and eight days, at eight per cent, per annum, is in full of the fourth instalment of the purchase-money of a tract of land on the Mississippi river, purchased January 1, 1807, containing two hundred and ninety-nine acres and ffg at two dollars per acre. Pare Walton, Receiver."
    
    “ Dollars 433
    The other receipts similar to the above for the second and third instalments, were also offered by the complainant as evidence.
    
      11. James Walton, on the part of complainant, proved-that he was acquainted with Charles Patterson in 1809 or 1810, who died in 1821 or 1822; he was also acquainted with Amos Whiting, but not before Patterson’s death. He knew the land in controversy ; Patterson, previous to and at time of his death, had possession of it, and for a number of years before. Did not know of Patterson’s title to said land ever being questioned or disputed during his lifetime, nor until some time after his death ; 100 acres were improved at the time of his death.
    The residue of the deposition of this witness is not important.
    12. A. W. Putnam, among other matters not material, proved that Amos Whiting, as attorney, instituted suit to April term, 1832, against Strother and Bridges, tenants of Patterson’s heirs, and witness believes laid one demise in the declaration from Wilson Squires and Kitturah,' his wife, and the other from William King. James Watson, administrator of Patterson, employed witness to defend the suit for the heirs of Patterson,,informing him that he had no title papers; that Whiting had them if there were any.
    13. The depositions of Abrams and his wife- were taken, who proved that they were acquainted with the complainant, and were also with Gideon Matlock and Elizabeth his wife, first in the fall or winter of 1803, and continued so until the spring of 1804, and lived a part of the time with them, and the balance of the time in sight. Gideon Matlock died in the summer of 1804, and his wife about twelve months after. They had two children, Kitturah and Thomas; in December, 1806, Kitturah was about six years old. .Gideon Matlock was in possession of said land in 1803, and so continued until his death in 1804.
    14. It was in proof by other witnesses, that complainant was born about the year 1801, and when their uncle came after the, children in 1807, he found them with one Harmon.
    On the part of the defendants, no other proof was offered than what was contained in the exhibits to the answer of Rhodes and wife.
    
      1. The first exhibit was the record of the proceedings in the probate court of Claiborne county, touching the administration of Matlock’s estate, and sale of the_ land in controversy by the ad-ministratrix. It shows that at a special term of the orphans’ court for Claiborne county, on the 16th of October, 1804, letters of administration on the estate of Gideon Matlock, deceased, were granted to his widow, Elizabeth Matlock, who took the required oath, and gave bond in the penalty of one thousand dollars.
    At a special term of the court, held on the 30th of March, 1805, on her petition, that the land described as a preemption, lying near the Grand Gulf on the Mississippi, claimed by the heirs of Gideon Matlock, deceased, be sold to pay debts due from the said estate; one-third of the proceeds to go to the widow, in lieu of dower, she assenting. At the February term, 1806, she made her report of sale in these words, namely :
    “Your administratrix reports, that by a special orphans’ court of this county, after reporting thereto the insolvency of the estate of her intestate, she was authorized to make sale of the real estate of her intestate, for the benefit of the creditors of the said Gideon; that after receiving the authority aforesaid, your administratrix advertised the real estate aforesaid for sale, in three public places of this county, and in one of the public newspapers of this territory, according to the direction of the act of assembly ; and on the day of sale no purchaser appeared; that after the day appointed for the sale aforesaid, your admin-istratrix was advised to abandon, or postpone at least,, the carrying into effect the order of the court aforesaid, on the. ground that the said Gideon had no title to the said land, but only a conditional bond of conveyance, from Captain Burnett, to make titles’ to the same, or otherwise refund to the said Gideon the amount of the purchase-money, amounting to somewhere about eight hundred dollars; which, it was apprehended, might affect the security so given by the said Captain Burnett. However, on further consideration, she was advised to make sale under the order of the court aforesaid ; and, in pursuance thereof, advertised the land, according to the directions of the statute, to be sold oil the 10th day of December, 1805; and, in pursuance thereof, the land was exposed to public auction, and Hezekiah Harmon became the purchaser, and the same was struck off to him at fifty-one dollars, for which he gave his bond, with security for the payment of the same, at the end of twelve months. Elizabeth Matlock, administratrix of Gideon Matlock, deceased.”
    This record further shows, that at the August term, 1806, of the orphans’ court, on the 11th day of the month, Joshua G. Clark was appointed administrator de bonis non of Gideon Mat-lock, deceased.
    On the 23d of October, 1804, the persons appointed to appraise the estate of Matlock, made' their report and inventory ; the amount was six hundred and seventy-five dollars thirty-seven cents.
    At the August term, 1805, on the 13th of the month, John Cummings, William Lindsay, and Ralph Regan, were appointed commissioners to receive the claims against the estate of Gideon Matlock, deceased, and to report to the next court.
    At the August term, 1806, on the 11th of the month, the same persons were appointed commissioners for the same purpose, and with like instructions.
    At the February term, 1810, on the 12th of the month, James Word, Israel Loring, and Eliphalet Frazer, were appointed like commissioners in the room of the former, with similar instructions.
    The record does not show any report by either of these commissioners.
    2. The second exhibit to the answer of the defendants, was of the deed from Mrs. Matlock, as administratrix, to Harmon; it bore date the 13th of February, 1806; recited the order to sell and the sale; and conveyed to Harmon “ all the claim, right and title of the said Gideon Matlock, deceased, and Elizabeth Matlock, administratrix aforesaid, to one improvement and preemption right, or right of preference of one certain tract of land, in Claiborne county, on the east bank of the Mississippi river, which the said Gideon Matlock occupied and improved in his lifetime, containing about six hundred and forty acres of land, more or less.” The consideration was fifty dollars.,
    On -the 23d of December, 1806, Hezeldah Harmon transferred to Samuel Wallace the land in controversy, on the back of this deed from the administratrix.
    3. The third exhibit showed, that on the 3d of January, 1810, Samuel Wallace conveyed, by deed, the land to Charles Patterson; in this deed, the instalments due the United States for the land were excepted from the warranty, which was otherwise general. J. G. Clark, J. Moore, and Z., Taliaferro, were witnesses to this deed. .
    4. Several other exhibits to the answer of the defendants, contained the.chain of title, and the deeds from Patterson’s heirs, down to the defendants in possession; which it is not deemed requisite further to notice.
    5. Exhibit H. to the answer of defendant, was a deed, from Wilson R. Squires and Kitturah, his wife, formerly Kitturah Matlock, to William King, to the land in controversy; this deed was signed and sealed by the vendors and vendee;' was made in Louisiana, and at the foot of it was this certificate: “ Before me, Jaufroy Barras, judge for the parish of Tennelinne, and ex officio notary public in the same, personally came and appeared Wilson R. Squires, and Kitturah, formerly Kitturah Matlock, his wife, of one part, and William King of the other part, who, in the presence of the undersigned witnesses, acknowledged the foregoing to be their act and deed for the purposes therein contained.” This certificate was signed by the judge, and the seal of office was affixed to it.
    The copies of the deed from the administratrix to Harmon, and from Harmon to Wallace, and from Wallace to Patterson, were all certified by the register of the land office, at Washington, in this state, as having been taken from the originals on file, in his office.
    On this state of pleading and proof, the chancellor decreed in favor of the complainant, and the defendants appealed.
    
      
      D. Mayes, for appellant, contended,
    1. That the complainant did not show that the land in controversy was subject to appropriation under the 3d section of the act of 1803, but, oh the contrary, did show that it was not so subject. On this point he entered into an elaborate examination of the act, and its application to the facts exhibited by the complainant; and argued that the land, having been claimed under a Spanish warrant, was not subject to appropriation under the 3d section of the act. How. & Hutch. 743; Rev. Code, 505; Dwarris on Stat. 48-50; Demarest v. Wynlcoop, 3 Johns. Oh. R. 129.
    2. If the preceding point were untenable, and the land subject to appropriation under the 3d, though claimed under the 1st section, yet the claim of preemption was not asserted until after the expiration of the law allowing preemptions to be filed, and could therefore constitute no foundation for an equitable right in the complainant, whose only merit, even according to her own allegations, consisted in having through somebody, to her unknown, caused a claim to preemption, void and barred by the law of the land, to be allowed by the officers appointed by government, to carry that act into effect.
    It is no answer to this position that the appellants claim under the same law; even though they have no equity, they still have the legal title and possession, and will hold against everything but a perfect equity. Plowd. 296; Roberts v. Bean, 5 S. & M. 590. “ In cequalijure melior est conditio possidentis." Yaughan R. 58, 60; Hobart, 103; 1 New Lib. Law & Eq. No. 3, 323.
    Nor is it an answer to the position, that if the complainant’s claim originated in fraud, so also did the defendants; “ In pari delicto portior est conditio possidentis.” Munt v. Stokes, 4 T. R. 564; 2 Inst. 301; Fitzroy v. Gwillim, 1 T. R. 153; Bing. 98; 10 B. &C. 684; 2 A. & E. 13.
    3. Admit that the land was not only subject to appropriation under the 3d section of the act of 1803, but that it was so appropriated within the time,-and under circumstances that conferred an equity; that equity was not the complainant’s. On this point Judge Mayes tested the equity of the complainant, by subjecting it to a review, under the different heads of equity jurisdiction. 1. Fraud: 1. actual, 2. constructive; 2. Accident; 3.Mistake; 4. Account; 5. Specific performance of contracts; 6. Trusts. He cited the following authorities: Grignon’s Lessee v. Astor, 2 How. S. C. R. 319.; 1 Story’s Eq. 561, 662, §259, 94, 121; 2 lb. 243, 244, 438 - 535.
    4. Suppose the equity of the complainant Unquestionable; she cannot recover, because she is opposed by an equal equity; equal powers neutralize each other, and he who has the legal right succeeds.
    Under this head Judge Mayes contended that the sale made by the administratrix was distinguishable from those heretofore decided void, and was valid. McPherson v. Cunliff, 11 Serg. <fc Rawle, 422, 429, 430 ; 4 Dali. 119 ; Messenger v. Kinnter, 4 Binn. 105; Snyder’s Lessees v. Snyder, 6 Binn. 496; Perkins v. Fairfield, 11 Mass. 227; Grignon’s Lessee v. Astor, 2 How. S. O. R. 319.
    5. Hezekiah Harmon and those claiming under him were the persons to whom the claim was confirmed, by the name of legal representatives of Gideon Matlock, deceased; and the first payment was made by, and certificate issued to them; and if so, by the act of congress, their right is not open to question. On this point Judge Mayes made an elaborate argument.
    6. If the positions already assumed be incorrect, the sale by the administratrix, irrespective of the order of court, passed the interest of Matlock in the land, she and not the heir being the legal representative of Matlock; and the estate in the land not being one of inheritance.
    But if the estate were one of inheritance, the right of inheritance descended to the heirs of Gideon Matlock; they did not derive it by purchase. 2 Bl. Comm. 242; Shelly’s Case, 1 Rep. 98; Comyns’ Dig. tit. Descent, A, B; Bac. Abridg. tit. E; 1 Salk. 241, 242; Prec. in Chan. 242 ; 2 Ld. Raym. 829; Com. R. 72, 123; Plowden, 245, and note (f); 1 Ld. Raym. 728; 2 Atkyns, 292 ; 2 Str. 1270; 1 Bl. R. 22; Co. Litt. 12, b, note 63. And it was consequently assets for the payment of debts, and. as such subject to sale by the administratrix for that purpose. The objection that the law which authorizes the sale of a deceased person’s realty, was not complied with, has no application to the case: 1st. Because it was not a sale of land, but of a right of preemption. 2d. Even if it were a sale of land, the court would presume that the requisitions of the law had been complied with, after (he lapse of almost half a century, and payment and possession under the sale. Enough does appear to show that the record does not remain as it was ; it appears, from the report of the administratrix, that she had made a report of the insolvency of her intestate’s estate: no such report is of record; and as our offices are kept it would be of monstrous consequence if all these sales, after the lapse of half a century, may be held for naught; and the titles under which generations have reposed, and forests been converted into cities, at the expense of millions, be uprooted, because the records of an orphans’ court do not show conclusively that every step had been taken by an administrator which the law directed.
    
      “ It is worthy of remark,” says Mathews, (Presump. Ev. 203,) “ that in admitting presumptions to sustain and fortify old possessions, the courts do not restrict themselves entirely to those of rightful conveyances, or of rightful possession. The guiding and confirming of titles being the principal object, and indeed the origin of the doctrine, such a presumption will be made, (provided substantial justice be not sacrificed,) as will best meet the necessity of each particular case.” To that eifect the following authorities were cited and commented on : Barnard v. Edwards, 4 New Hamp. R. 321; Nase v. Peck, 3 Johns. Cas. 128; Hazard v. Martin, 2 Yerm. R. 77, 85; 11 Serg. & Rawle, 432; 4 Binney, 496 ; 11 Mass. R. 227; Turnispeed v. Haiokins, 1 McCord’s R. 278; Gray v. Gardner, 3 Mass. R. 399; Knox v. Jenks, 7 lb. 488; Coleman v. Anderson, 10 lb. 105; Pejeps-cut Proprietors v. Ransom, 14 lb. 145, 146; Read v. Goodyear, 17 Serg. & Rawle, 350; Dillingham v. Snow, 5 Mass. R. 547; Stockbridge v. West Stockbridge, 12 lb. 400; Ld. Pelham v. Pickers gill, 1 T. R. 666 ; Rex v. Carpenter, 2 Show. 47; Crisp v. 
      Belhoood, 3 Lev. 424; Colton v. Smith, Cowp. 47; Rickards v. Bennett, 1 Barnw. & Cress. 223 ; McClure v. Hill, 2 Rep. Const. Court, 420, 424 ; 6 East, 213; University of Vermont v. Reynolds, 3 Verm. R. 542; Campbell v. Clinton, 10 Johns. R. 475; Jackson ex dem. McDonald v. McCall, lb. 377; cited 6 Cowen’s R. 727; 2 Const. R. 631, 632; Jackson ex dem. Constantine v. Warford, 7 Wend. 62; Carr v. Billyard, 3 Mann. & Ryl. Ill; Nalle’s Reps. v. Fenwick, 4 Rand. R. 585-588; Buckhold v. Boudousquieu, 6 Mart. L. R. new series, 153; Fitzhugh v. Croughan, 2 J. J. Marsh. 429, 437; Boiodry v. McConnell’s Heirs, 4 Monroe, 395 ; Clinton v. Campbell, 10 Johns. R. 475; Wickham v. Belknap, 12 lb. 96; Brown v. Galloway, 1 Pet. C. C. R. 291; James v. Betz, 2 Binn. 12; Thompson v. Hauser, 2 Reps. Const. Court, 356.
    7. The deed from Squires and wife passed all the complainant’s interest in the property to the vendee. On this point the following authorities were cited, viz.: Story’s Confi. Laws, 2d ed. T26; Civil Code La., Act 124, 20; 3 How. U. S. R.; Clancy’s Rights Mar. Worn. 9, 109-120, 162; 1 Mad. Ch. 398, 399; 2 Sto. Eq. 596, -597; 1 Fonb. Eq. B. 1, ch. 2, § 8, note R; 2 Johns. Ch. R. 539; 2 Vesey, 7; 2 Story, 606 - 616 ; Fonb. 103; Whistler v. Neioman, 4 Vesey, Jr. 129; 11 Vesey, 225; 14 lb. 542; Jacques v. Episcopal Church, 17 Johns. R. 548; Bradish v. Gibbs, 3 Johns. Ch. R. 540; Ewing v. Smith, 3 Dess. 418.
    
      H. T. Ellett, on the same side.
    For the appellants it is contended,
    I. That the appellee never had a right of preemption to the land in controversy, under the third section of the act of March 3, 1803, for three reasons, to wit:
    1. Because the land was claimed, under the first section, by virtue of a Spanish grant, (exhibit E,) and is therefore ¡expressly excepted out of the land subject to preemption under the third section.
    2. Because no claim of a right of preemption and plat of the land was filed, in pursuance of the fifth'section. It appears by exhibit D, that on the 5th July 1805, the legal representatives of Gideon Matlock claimed it by virtue of a Spanish grant to John Burnett. It is also shown that Matlock died in'October, 1804, only a month and a few days befóre the expiration of the time limited for filing the claim (the last day of November, 1804.)
    3. Because neither Matlock, nor his heirs, nor any person for them, ever made the payments required by law.
    The claim under the Spanish grant was prosecuted as far as possible, and it was only on that claim being rejected, that Matlock asked for a preemption. The land, being claimed under a Spanish grant, was not subject to preemption, no matter whether Matlock, or another was the claimant.
    The payments made by Patterson were made for himself, under a claim of title in himself, and were not made for Mat-lock, or his heirs.
    II. That it was to Harmon, and those claiming under him, that the land was confirmed by the name of the “ legal representatives of G. Matlock,” and that the first payment was made by, and the certificate issued to him, or those claiming under him.
    The estate of Matlock was insolvent. His children were infants, having no property, and no guardian. On the 15th March, 1805, the land was ordered to be sold for the payment of debts, and on the- 10th December, 1805, Harmon purchased it. On the 19 th December, 1805, the order of survey was made in the name of the legal representatives of G. Matlock, and on the 22d of the same month, the claim was confirmed. The heirs of Gideon Matlock could not have been the persons intended.
    It is admitted that the term “legal representatives” includes heirs, but it includes more. If heirs only were meant, it would have been easy to have used that term, the meaning of which is well known and understood. It is evident, from the whole act, that the term “legal representatives,” is used to embrace all persons who become legally entitled to the land,- whether claiming by descent, or by “ deed, conveyance, or other written evidence.”
    III. That the sale by the administratrix of Matlock to Harmon was good:
    
      1. Because, as to this land, the administratrix, and not the heir, was the legal representative of Matlock, and her sale, without any order of court, was good. The interest of Matlock was only a chattel interest, a term, a right of preference for a term of years in becoming the purchaser. ' Such an interest would not, by common law, descend to the heir. It was not an estate of inheritance. As to all estates less than inheritance, the administrator, is the legal representative. The power of disposition is, at common law, incident to the office of administrator, and no order of court is necessary. No statute can be found requiring in 1806 an order for the sale of such aa-interest as this.
    
      2. But if the heir is the legal representative, he takes the claim of preemption by descent from his ancestc/r, and not by purchase from the government. The right to make the purchase vested in Matlock, and on his death descended to.his heirs. They take by right of representation. The sale then would be good, although the formalities of the law in sales of land were not complied with, for here no land was sold but only a right of preference in becoming the purchaser of land.
    
    3. But if it were a sale of land, the court would presume, after the lapse of forty years, that the requisitions of the law have been complied with, especially as possession has. all the time been held under the sale. It would be monstrous if the loss of a paper from the loose files of a clerk’s office, kept as they were in 1805, in this rude and freshly-settled country, should be permitted to disturb a title, under which the parties have so long reposed. “Omnia presumentur rite esse actaf is a favorite maxim regarding the proceedings of courts and officers.
    The case of Grignon’s Lessee' v. Astor, 2 How. S. C. R. 319, is strikingly in point upon this question. It decides that probate proceedings for the sale of lands are proceedings in rem, and that personal notice to ’ the parties interested is not necessary to give jurisdiction. It is the thing, and not the person, that must be before the court. That the order of sale is evidence of all facts necessary to give the court power to make it. That probate courts are not courts of limited and special jurisdiction ; and that these are settled rules of property, upon which the repose of the country depends.
    The same case decides that an interest in land may be sold at administrator’s sale, though not confirmed nor titles issued by the government, and that a subsequent issuance of titles will sustain the previous sale of an equity.
    IT. The sale by Squires and wife to King is good to pass the interest of complainant, though not sealed, or acknowledged.
    1. Our statute requiring private examination of a feme covert, only relates to the passing of legal estates of freehold. The appellee here, having as she says, a mere equity, the statutes do not apply.
    2. On her marriage with Squires, all her right, such as it was, vested in her husband. Chattels real vest in the husband, so as to be subject to sale by him, during coverture. This is a chattel real; Squires signed the paper and acknowledged it. Though not sealed, it is good in equity, and the court, if necessary, will put a seal to it.
    3. It is a relinquishment of a right to prosecute a suit in equity. No statute requires a private examination for such a purpose.
    iS'. tS'. Prentiss, for appellee.
    If complainant can show that she occupies the position of “the legal representatives of Gideon Matlock, deceased,” she will be entitled clearly to the lands in controversy, unless it appears that such right has been forfeited or parted with since it originally accrued.
    1. First, then, does complainant occupy the position of “ the legal representatives of Gideon Matlock, deceased 1 ” It is proven conclusively by the testimony, and admitted by the answers, that Gideon Matlock died in 1804, leaving two children, complainant and her brother Thomas, both infants; that Thomas died, before he arrived at maturity, without issue, and that complainant is now the only surviving heir of said Gideon. If, then, the term “legal representatives,” in the third section of the act of 1803, and in the certificate of preemption, granted by the board of commissioners, means “ heirs, ” it follows of course that complainant, being the only heir, is entitled to all the benefit of the grant from the government.
    Defendants contend that the term “legal representatives,” means the administratrix, and those claiming under her. But such a proposition is absurd. A grant of lands, to one or his “ legal representatives,” clearly means to one or his heirs. Such has always been the construction of the phrase. It is so recognized in Bledsoe v. Doe ex dem. Lillie, 4 Howard, 13. The term is used in the act as a descriptio personarum, and the persons meant were clearly the heirs. It would be ridiculous to suppose congress intended to grant to administrators, executors, &c. mere personal representatives, acting only as trustees.
    2. Let us now proceed to examine whether complainant has in any manner lost the rights she acquired by the certificate of preemption, and the first payment made thereon.
    She has not lost them by lapse of time ; for it appears, both by the testimony and the answer, that she was under continued disability of infancy and coverture until 1835, only three or four years anterior to the commencement of this suit. Her infancy and marriage during infancy are admitted, and it is proven that her first husband did not die until 1835.
    But defendants set up two sources from whence they profess to derive title, which we will now examine. The first is a sale of the lands by the administratrix of Gideon Matlock, to one Harmon, when they were to have become, by virtue of said sale, “the legal representatives; ” a conveyance by said Harmon to one Wallace, and by him to one Charles Patterson, who took possession, and made final payment, as assignee of “ the legal representatives of Gideon Matlock, deceased.” Through said Patterson all defendants derive title.
    The second source of title-is a pretended deed from complainant and her husband, Wilson R. Squires.
    As to the first, the sale of the land in controversy by the administratrix of Gideon Matlock deceased, was absolutely and wholly void on these grounds.
    1st. The estate of Gideon Matlock had no interest whatever in said lands, nor did either his heirs or administratrix derive from him any title whatever. The act of congress authorized Gideon Matlock, or his legal representatives, upon, making certain proofs, to obtain from the board of commissioners a certificate of preemption. Gideon Matlock did not in his lifetime claim a preemption nor attempt to obtain a certificate for one. He did not accept the offer of the government. And when 'he died he had no right which could descend as part of his estate.
    But his “legal representatives” then came in, and, under the alternative proposition contained in the act, claimed a preemption in their own right, obtained a certificate therefor, and made the first payment thereon. All the title they obtained carne directly from the government by purchase, and not by descent from their father. A right of preemption, where no step has been taken, to accept and consummate it, is not capable of descent.
    It is clear I think, that the interest of “the legal representatives of Gideon Matlock, deceased,” could not be sold to pay the debts of Gideon Matlock.
    2d. But suppose, Gideon Matlock had such an interest in the lands in controversy as could be sold to pay the debts of his estate, still the sale made by the administratrix was utterly void.
    The jurisdiction of the county court over the lands of a deceased person was a special and limited jurisdiction, arising only under particular circumstances, and directed by law to be exercised in a particular manner. See twenty-eighth section of an act 'entitled “ an act concerning last wills and testaments.” Toulman’s Digest, 2S5. This section points out the circumstances under which the courts could order sale of lands to pay debts, and the mode of proceeding necessary to authorize, such order. It requires,
    1. An exhibit, on oath, of the indebtedness of the estate, that the complainant may see the necessity of a sale of the lands.
    2. A citation to all persons, interested in the lands, that they may have an opportunity of showing cause against such sale; the mode of publishing such citation is also prescribed.
    3. The twenty-ninth section, same act, directs, that at return of citation the court shall examine the allegations, &c.
    None of the prerequisites required by the statute to give the court jurisdiction to order a sale of the real estate, appear upon the record.
    The order of sale 'was therefore absolutely void, and the sale made by the administratrix in pursuance thereof was equally so.
    As to jurisdiction of probate court in such cases, and the effect of want of jurisdiction, see Campbell et al. v. Brown et al. 6 Howard’s Rep. 230, and cases there cited.
    The second source from whence defendants deduce title is the deed of Squires and wife.
    This deed is clearly void as to complainant, who was then under coverture, for the following reason:
    The title and disposition of real property is subject exclusively to the law of the country iu which it lies, which alone can prescribe the mode of its transfer. See 7 Granch, 115; 6 Wheat. 577; 10 Wheat. 192.
    By the jaws of this state, “ no estate of a feme covert in any lands, tenements, or hereditaments, lying and being in this state, shall pass, &c.” without a private examination and acknowledgment, as prescribed in the statute. See Rev. Code, p. 457, sec. 19, of act in relation to conveyances.
    The deed, under which defendant’s claim was executed in Louisiana, is without any private examination, or other of the formalities required by the laws of this state.
    That deed conveyed therefore no estate of complainants, legal or equitable; it was wholly void as to her, and could not be set up, even as an agreement, or have any effect whatever. On this point, the authorities are full. See 1 Peters, 109; 1 Wash. C. C. R. 354; 1 Call, 190; 1 Munf. 518; 1 Munroe, 49; 3 Munroe, 397; 1 Yerger, 413; 3 Yerger, 548; 4 Bibb, 942 ; 6 Wend. 9.
    
      It seems, then, perfectly clear that the complainant has never parted with her right to the lands in controversy, whether her title be considered as derived directly from the government, by virtue of the confirmation of the board of commissioners, to “ the legal representatives of Gideon Matlock,” of whom she is sole survivor and heir, (which I believe to be the true state of the case,) or by descent from Gideon Matlock, she being his sole heir and representative.,
    Patterson then, in falsely representing himself as the assignee of “the legal representatives of Matlock,” and obtaining thereby a final certificate, stands in the attitude of trustee, (and those claiming under him in a similar attitude,) towards complainant, and she is entitled to a decree for the land, upon payment of the money paid by Patterson to complete the title, together with legal interest.
    As to the question of rents and profits, complainant is willing to receive any accounting for them, further than to cover and offset Patterson’s payments. There is ample evidence in the cause to show the value of the rents and profits to have been far greater; but they will not be urged further than to protect complainant from any charge by defendants.
    Full and complete notice has been proven upon Patterson, Egan, and Whiting. And should the question of improvements be raised, any right upon that score is denied.; although they would not amount to sufficient to offset mesne profits. As to resulting trust, see 1 Cranch, 100. As to allowance for improvements, see J. C. R. 596;< Green v. Biddle, 8 Wheat. 1. As to complainant’s right to rents and profits, see 2 P. Wms. 648,
    
      Gnion, on the same side, made an oral argument.
    
      James A. Maxwell, on the same side,
    cited the following authorities. Act of Congress, MArch 3, 1803, in H. & H. 743; Hackler]s heirs v. Cabell, Walk. R. 91; Toulman’s Dig. 285, s. 6, 28, 29; 10 Pet. 161 ; 1 Dev. 187; 15 Johns. R. 141; 19 Johns. 33; 11 Wend. 652; 4 Pet. 474; 3 J. J. Marsh. 105; Campbell v. Brown, 6 How. 320; Gwin v. McCarroll, 1 S. & M. 351; H. & H. 346, s. 14; lb. 347, s. 190.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

The appellee, Kitturah Bryan, filed this bill in the superior court of chancery, to recover a tract of land on the Mississippi river, containing two hundred and forty acres, on part of which the town of Grand Gulf is now situated. She claims title, as the sole heir of Gideon Matlock, deceased. The title originated under the third section of the act of congress, passed on the 3d of March, 1803, which declared that every person, and the legal representatives of every person, who, being the head of a family, or above the age of twenty-one years, did, at the time of passing the act, inhabit and cultivate a tract of land in the Mississippi territory, not claimed by virtue of the preceding sections of the act, or by a British grant, or by the articles of cession from Georgia, should be entitled to the preference in becoming the purchaser at the minimum price, to be paid in the same manner as .directed by the act in regard to other lands, which was in four annual instalments. The fifth section of the act declared, that every person claiming land by virtue of a British grant, or by the three first sections of the act, or under the articles of cession, should before the last day of March, 1S04, deliver to the register of the land office of the proper district, a notice in writing, stating the nature and extent of his claim, together with a plot of the tract claimed, with every grant, order of survey, deed, conveyance, or other written evidence of his claim, to be recorded by the register; and in case of neglect by the claimant to comply with this provision, he lost all right under the provisions contained in the first three sections. By this act, three persons were appointed, or, at least, a provision was made for their appointment, as commissioners to hear and determine land claims. By the act of congress, of the 27th of March, 1804, the time for presenting claims under the first three sections of the original act, was extended to the last day of November, 1804.

To entitle any one to a preference, in becoming the purchaser of a tract of land, or, as it is commonly called, a preemption right, it is necessary that he should have brought himself within the conditions of the act, the first of which was, that the claimant should have been the head of a family, or over twenty-one years of age. He must have inhabited and cultivated the land on the 3d of March, 1803. He was required to present his claim to the register in writing, with the evidences of ownership, if he held by transfer, by the last day of November, 1804. Then he and his legal representatives were entitled to purchase the land, if it was unappropriated, or not claimed by virtue of the articles of cession, or by any British or Spanish warrant or order of survey, or by virtue of a donation under the second section, of the act.

Having thus stated the provisions of the law under which complainant claims, two questions arise ; first, does the record show that the complainant, or her ancestor, acquired a right under the law? and second, does that right still exist in her, or has it been legally divested?

First, has the complainant established a right to the land which can be asserted in a court of equity? We will here remark that in equity, as well as at law, the plaintiff must recover on the strength of his own title, and not on the weakness of his adversary’s title. Watts v. Lindsey’s Heirs, 7 Wheat. 161. In a court of equity a complete equitable title must be shown, and in a court of law a complete legal title is requisite. It is therefore immaterial on what right the respondents may rely; their possession will protect them against any but a perfect equitable title.

It has been urged in the argument of counsel for the appellants, that neither complainant’s ancestor nor the complainant herself were entitled to a preference, right under the act of congress for two reasons; first, because the land was claimed under a Spanish warrant, and therefore not subject to a preemption right; and second, because the provisions of the law were not complied with. The act of congress only conferred the right of preemption to land not claimed by virtue of the first two sections of the act, nor by a British grant, or the articles of cession from Georgia. A reasonable construction of this provision seems to be, that so long as land was subject to any such superior claim, it was exempt from the operation of the third section ; but when such claim was decided to be invalid, and rejected by the commissioners, then it was liable to be claimed under a preemption right; it was then public land, unappropriated under the first and second sections, or under a British grant. When Matlock’s claim under the Spanish warrant was rejected as insufficient, the land was liable to be claimed under the preemption law. But were the conditions of the law sufficiently complied with, either by Matlock or his heirs ? It appears that Matlock was the head of a family, and competent therefore to assert a claim. But he must have inhabited and cultivated the land on the 3d of March, 1803. It was not enough to inhabit, or reside on the land; cultivation was also necessary. It was necessarily incumbent on any party claiming a preference to make the requisite proof to the commissioners. As proof in this cause, the complainant introduced an extract from the journal of the commissioners, bearing date the 10th of-July, 1805, from which it appears, that Gideon Matlock had claimed one thousand and sixty-six arpens of land, under a Spanish warrant of survey, granted to John Burnett on the 27 th of August, 1795. This extract also shows that Matlock derived title from Burnett by deed of bargain and sale, dated the 8th of February, 1804, which deed it would seem, was presented to the commissioners as the evidence of Matlock’s right to ha.ve a confirmation for the land which had been granted to Burnett by the warrant. A warrant of this description conferred ho title, unless the claimant was an inhabitant of the territory on the 27th of October, 1795, and had on that day inhabited and cultivated the land. Matlock could not, therefore, be confirmed in his title derived from Burnett, unless he could prove to the commissioners that Burnett had resided on and cultivated the land on that day. This proof he attempted to make by the testimony of Hezekiah Harmon, who stated, as the extract from the journal shows, that Burnett cultivated the land in 1802, and moved on it the same year, or the beginning of the year 1803, and continued to inhabit and cultivate it until he sold to Matlock. If Burnett lived on and cultivated the land until he sold to Matlock, he must have resided there on the 3d of March, 1803, when the act of congress was passed. Matlock at that time had no claim to the land; his claim originated by the bargain and sale from Burnett on the 8th of February, 1804. There was no proof whatever that Matlock had resided on and cultivated the land on the 3d of March, 1803. Burnett might have been entitled to a preemption, but Matlock was not But in addition to this extract from the journal, the complainant also introduced the claim presented by Matlock to the commissioners. It bears date the 16th of February, 1804, and was for one thousand and sixty-six arpens of land, by virtue of the Spanish warrant to John Burnett, on which he relied. He presented no claim under the preemption law as the act of congress required, nor did he attempt to make proof that he was entitled to a preference. In the effort to sustain his Spanish warrant, he proved that he was not entitled to a preemption, by proving that Bu'rnett resided on and cultivated the* land up to the time when Matlock purchased, which was on the 8th of February, 1804, and twelve days afterwards he presented his claim to the commissioners. It has been admitted in argument that Matlock never claimed a right of preemption.

But it is said that Clarke, as the attorney for the heirs, presented their claim. Clarke filed a memorandum to this effect, that if Matlock’s claim under the Spanish warrant was not allowed, the heirs tVould take a preemption. This instrument is without date, and does not specify what land the heirs would take. For anything that appears, it may have been filed after the last day of November, 1804. Matlock died in October, 1804, and the time for pre'senting claims expired on the last of November of that year. But assuming that it was filed within the proper time, still it was not supported by the requisite proof of Matlock’s settlement. On the contrary, the commissioners then had proof before them that Burnett had resided on the land on the'3d of March, 1803, and if any person was entitled to a preemption it was Burnett. The probability is, that Matlock’s right to a preemption was confirmed on the strength of Burnett’s settlement, from whom he had purchased. Certain it is that Matlock’s heirs did not show that they were entitled to a preemption, in virtue of a settlement by their father. For anything that appeared before the commissioners, Matlock may have resided in a foreign country on the 3d of March, 1803.

But let it be admitted that these were questions for the determination of the commissioners, and that their decision, allowing a preemption in favor of Matlock’s legal representatives is conclusive, which may be true, at least as regards the government. Then the question is, what right did it confer? The most important provision of the law still remained to be complied with; the land was to be paid for. The determination of the commissioners settled nothing but that Matlock’s representatives had a right to buy the particular tract.of land if they wished to do so. A mere right of preemption is not a title. It is only a proffer to a certain class of persons that they may become purchasers if they will. Without payment, or an offer to pay, it confers no equity. It is only regarded as conferring an equity when the party has consented to accept the offer by payment, or by claiming the benefit of the law in the proper manner, within the required time. The bill proceeds upon the ground, that the first payment for the land was made by, or for the heirs of Matlock ; and the whole argument is based on this ground. It is the important point in the cause. Without it the complainant’s claim has nothing to rest on. There is no proof on this" subject which can be called positive, and yet the circumstances are so irresistibly conclusive against the pretensions of the complainant, that it seems impossible to entertain a doubt. This is a question of fact, and each prominent event in the cause seems to contribute something to the answer. When they are all considered in chronological order, the conclusion seems, inevitable, and to that end we shall note each one particularly.

1. On the 16th of February, 1804, Gideon Matlock, of Claiborne county, presented to the 'commissioners appointed under the act of congress of March, 1803, a claim for one thousand and sixty-six arpens of land, lying in Claiborne county, on the Mississippi river, having such shape as represented by a plat annexed, by virtue of a decree warrantor order of survey from the Spanish government to one John Biirnett, bearing date the 2?th of August, 1795, which claim states that the land was improved at the date of the warrant, and that Burnett was the head of a family; that Burnett had the land surveyed, and conveyed it to Gideon Matlock. Accompanying this petition is a survey of the land. This was the only step taken by Matlock in his lifetime.

2. He died in October, 1804, and on the 16th of that month, administration was granted to his widow, Elizabeth Matlock, the mother of complainant.

3. On the 23d of October, 1804, Matlock’s estate was appraised to $676.

4. On the 13th of March, 1805, the probate court of Claiborne county made an order that the land of Matlock, being the land in question, should be sold by the administratrix to. pay the debts due from the estate.

5. On the 10th of July, 1805, the commissioners made an entry on their journal, as appears by an extract, that the legal representatives of Matlock claimed one thousand and sixty-six arpens of land in Claiborne county, on the Mississippi river, by virtue of a Spanish warrant of survey to John Burnett, dated the 27th of August, 1795; also a bargain and sale from Burnett to G. Matlock, deceased, dated 8th February, 1804, which was produced. Witness, Hezekiah Harmon, proved, that the land in question was settled in the year 1802 by John Burnett, who moved on it the latter end of the same year, or the beginning of 1803, and continued to inhabjt and cultivate it until he sold to Matlock. Burnett was the head of a family at the date of the warrant. This was probably the first action taken by the commissioners, on the claim which had been presented by Matlock on the 16th of February, 1804; and the deed of bargain and sale from Burnett, and the testimony of Harmon mentioned in the entry, were no doubt both furnished by Matlock when he first presented his claim. He, in the meantime, had died, of which fact the commissioners by some means, but how is not shown, had been apprized, and hence the entry on the journal that Matlock’s representatives claimed the land. The fairest conclusion is, that Elizabeth Matlock, the administratrix, was prosecuting the claim. But a few months before she had obtained an order to sell the land to pay debts. A confirmation of the claim was most likely to insure a sale for a fair price. It was her official duty to prosecute all claims in favor of the intestate. The order of sale was granted on the 13th of March, 1805; in the report of sale it is stated by the administratrix, that she advertised the land for sale in three public places in the comity, and in one of the newspapers of the territory, but no sale was made for want of bidders. She was then for a time induced to abandon or postpone the compliance with the order of court, in consequence of doubts as to the title of Matlock. She however again advertised and sold. Pending this action of the adminis-tratrix, the entry mentioned was made on the journal of the commissioners. With her knowledge of the defect of title, and with an order to sell it still unexecuted, though an effort bad been made to sell, which failed probably from the defect of title, the inference is that the administratrix undertook to perfect the title. This inference derives strength too from the fact, that the children were very young, and had no guardian but the mother. Having said this much in regard to the entry appearing on the commissioners journal;.let us proceed with the facts as proposed.

6. On the 13th of August, 1805, commissioners were appointed by the probate court to receive claims against the estate of Matlock, and ordered to make report at the next term of the court.

7. The administratrix sold the land, after a second advertisement, on the 10th of December, 1805, to Hezekiah Hannon, for fifty dollars, he being the best bidder.

8. At the February term, 1806, the administratrix reported the sale to the probate court, which report was received and ordered to be recorded. It states that the estate had been reported insolvent; the order authorizing the sale for the benefit of creditors; the due advertisement of the land; the failure to sell for want of bidders; the second advertisement, and the final sale to H. Harmon for fifty dollars on the 10th of December, 1805.

9. On the 13th of February, 1806, Elizabeth Matlock, as ad-ministratrix, made a deed to Harmon, the purchaser. It recites the order of court, and professes to convey only Matlock’s interest or claim to a preemption right, to a tract of land on the east bank of the Mississippi river, containing about six hundred and forty acres, more or less, which deed was acknowledged on the same day, 13th of February.

10. Mrs. Matlock died in March, 1806, the complainant then being about four years of age, and her brother Thomas, who has since died, about two years old. After the death of the mother, the children had neither parent, guardian, or relation near to protect their persons or property, nor was a guardian appointed for them at any time.

11. On the 11th of August, 1806, Joshua G. Clarke was appointed administrator de bonis non on the estate of Matlock, and on the same day commissioners were again appointed to receive and examine claims against the estate of Matlock.

12. On the 19th of December, 1806, the land commissioners entered on their journal, that two hundred and forty acres of land should be surveyed for the legal representatives of Gideon Matlock ; and on the 22d of the same month, they made an entry to the following effect. No. 271. Legal representatives of Gideon Matlock; 240 acres ; claim confirmed;

13. On the 23d of December, 1806, only one day after the confirmation, Harmon, by indorsement on the deed from the ad-ministratrix, transferred his interest to Samuel Wallace.

14. On the first of January, 1807, John Henderson, as receiver of public moneys, gave a receipt in favor of the “ legal representatives of Gideon Matlock” for $120, as the first instalment on two hundred and forty acres of land under a preemption right; charging at the same time, in the books of his office, the representatives of Matlock as debtor in the sum of $480 for the tract of land, and giving a credit of $120.

15. In the latter part of the year 1807, the complainant and her brother Thomas were taken to Louisiana by a relativé who resided in that state, where they remained. Complainant there married in 1817, and was under coverture until 1838.

16. On the 3d of January, 1810, Wallace, the assignee of Harmon, sold to Charles Patterson by deed, which, after describing the laud, recites that it was the same land granted by preemption certificate to the legal representatives of Gideon Mat-lock, dated 1st of January, 1807. The land was conveyed subject to the instalments due the United States, which were to be paid by Patterson. To this deed we find the name of J. G. Clarke as a witness, who was doubtless the same person who was administrator on Matlock’s estate, and who had signed his name as attorney for the heirs in their petition for a preemption in case the Spanish warrant was not confirmed.

17. Let us for a moment return to the proceedings of the probate court, which present the next occurrence in point of time. On the 12th of February, 1810, other commissioners were appointed in the room of those previously appointed, to receive claims against Matlock’s estate, this being the third appointment of commissioners for that purpose. ,

18. On the 22d of September, 1810, Patterson paid the three remaining instalments due on the land, and took from the receiver a certificate in his own name, as assignee of the legal representatives of Gideon Matlock. The respondents derive title from Patterson.

There are some facts which cannot be precisely located in point of time. The memorandum of Clarke as the attorney for the heirs, that they would take a preemption if the claim under the Spanish warrant was not confirmed, is without date. There is also a memorandum, the date of which cannot be precisely ascertained from the record ; it is in these words: “The claimant requests that the board of commissioners will only grant or reduce the within quantity to two hundred and forty acres.”

Do these facts prove that the first payment, made on the 1st of Jaquary, 1807, was made by or for the heirs of Matlock ?' We cannot think that they will justify any such conclusion. The heirs were infants, one but a little over four years old, and the other not three. They of course did not make the payment. It is perfectly manifest, therefore, that it was made by some other person, and it would seem to be incumbent on the complainant to show by whom it was made, if made for her benefit. It was not made by Elizabeth Matlock ; she had died in 1806. It was not made by a guardian of the children, for none had been appointed. They had no relations in the territory, and it is not probable that any came from a distance to pay for the land. If such had been the case, a guardian or agent would most probably have been appointed to take care of it. It would be strange too, that relations should come from a distance to make one payment, and leave the land to be forfeited for the non-payment of the remainder. The first we hear of any relation in the territory was in the latter part of 1807, when one came from Louisiana to take the children away. The complainant’s hope then must rest on the chance of payment by Clarke, the administrator de bonis non, who was appointed in August, 1S06. There are several reasons which go to prove that he did not make the payment. He was successor to Elizabeth Matlock, and had full notice of all that she had done in the course of administration. He knew that an order had been made to sell the land; that it had been sold accordingly, and conveyed to Harmon. He knew also that the order had been made to enable the administratrix to pay the debts. It is not likely, under these circumstances, that he would have paid for the land for the benefit of the heirs. He had no authority as administrator to make such payment out of the money of the estate. But a still more conclusive reason is, that the estate was insolvent. This fact, however, was denied in argument, but it is nevertheless fully shown. Commissioners were appointed to examine claims against the estate at three different times, twice under the administration of Clarke, and once under the administration of his predecessor, who, in her report of the sale of the land, stated that the estate had been reported insolvent, besides which the order of sale purports to have been made, to enable the administrator to pay debts. The only contingency which authorized the appointment of commissioners to receive claims against an estate was insolvency ; and the only contingency which then authorized the sale of land of a decedent was insolvency. It is thus made manifest that the estate was insolvent. Clarke then had no funds belonging to the estate which he could have appropriated to the payment of the land, even if he had received anything whatever, which is not shown. The creditors had the first claim on the estate; the law appropriated the money to their use. To suppose that Clarke paid for the land out of the money of the estate is to suppose that he violated the law and his oath of office. The estate was only worth $675. That sum, or the property to that amount, went into the hands of the first administrator. For anything that appears, Clarke may never have received anything whatever. But it is very remarkable that if he made the first payment, that he did not also complete the purchase. He continued to be administrator as late as 1825 ; and was cognizant of the sale from Wallace to Patterson. The estate was originally worth $675 besides the land; it was necessary that the land should be sold to pay debts; it was sold for $50; this made the whole of an insolvent estate amount to $725 ; is it possible under such circumstances, that any administrator would undertake to appropriate $480 of that sum to the payment of land which had been sold by his predecessor, and thus contributed to swell the aggregate of the estate. This argument necessarily supposes that the land was sold that the vendor might pay for it out of the proceeds of sale, and perfect in himself a title which was before imperfect. But moreover, it is but recently that sales of land by administrators have been the subjects of adjudication in this state. It is now settled that the law must be strictly complied with, and that this must appear by the record. No such decision had been made previous to this sale, at least in the then territory; and the earliest case referred to by counsel to show that the sale was void, was decided in 1818, thirteen years after the sale was made, and the next one was decided in 1830. It can scarcely be doubted, therefore, but what all parties believed the sale to be valid, and if so, it is impossible that an administrator would have thought of making such-an investment, even if he had had the means and the power. But to admit the most,for the complainant, it must have been regarded at least as a doubtful question at that day, even if the law had not been literally complied with; and if so, it is not probable that an administrator would have invested the funds of the estate in a doubtful adventure. Surely no lawyer would have advised such a course, nor could the probate court have sanctioned such an appropriation, and the payment could not have been made without an order of court.

But, say the complainant’s counsel, the proof is clear that the payment was made by Matlock’s heirs, because the confirmation of the commissioners, made on the 22d of December, 1806, was in favor of the “ legal representatives” of Gideon Matlock; and the certificate of payment given by the receiver on the 1st of January, 1807, was in favor of the “ legal representatives” of Matlock; that by the term “legal representatives” children were meant. As regards the certificate of confirmation, this is a matter of little consequence, as it only decided that the legal representatives of Matlock had a right to avail themselves of the preemption law, if they should choose to do so. And let it be admitted that the receiver meant the children of Matlock, by the use of the words “legal representatives;” what then? If it be clear that they paid nothing, then they acquired a title by mistake, which, howev.er good at law, will not do to rely on in a court of chancery. It will not be contended that such receipt is not susceptible of explanation. But we deny that the words “ legal representatives,” as used in the act of congress, mean children, or heirs only. In legal parlance, the execptor or administrator is most commonly called the legal representative. Still, in regard to things real, the heir is also the legal representative, and so is a devisee, who takes by purchase. Heirs may be the legal representatives, or they may not. Suppose by will a testator should give his land to one who is not an heir; the devisee would be the legal representative, in regard to the thing devised. The act of congress was evidently intended to have a broader signification than that contended for. This is manifest from the fifth section,',which required that'any claimant should file with the register every grant, order of survey, deed, conveyance, or other written evidence of his claim. There was no provision in favor of assignees or grantees, by name, yet we find they were required to present their evidences of title; they were necessarily intended to be embraced by the use of the phrase “legal representatives.” If the word “heirs” only had been used, it would have excluded assignees and grantees. An assignee or grantee is a legal representative of the assignor or grantor, in regard to the thing assigned or granted. If congress intended that heirs only should be entitled to represent the original settler, it is remarkable that the word “ heirs” was not used. Its meaning is well known; it is the appropriate expression when those on whom the law casts the estate are spoken of. And as congress used a phrase more comprehensive, we must suppose that other persons besides heirs were intended. General expressions in a law must be construed to have a general application, unless there be a clear indication that they were intended to be used in a restricted sense. Representative is one who exercises power derived from another. A purchaser derives his power over the estate from his vendor. On this interpretation of the words “ legal representatives,” the complainant’s claim doubtless originated. We have said that Matlock was probably confirmed in his right to a preemption, in virtue of Burnett’s settlement, but we regard this point as beyond mere probability. It appears that Burnett resided on and cultivated the land, in March, 1803; and it also appears that Matlock had no interest in, or claim to it, or that he ever resided on it, until 1804. Ha was no doubt confirmed in his claim as the legal representative of Burnett. This is the only way we can account for the confirmation by the commissioners, as Matlock actually disproved any right in himself, on his own settlement.

The certificate of payment, then, given by Henderson on the 1st of January, 1807, would establish a payment by the purchaser under the administrator’s sale, or his vendee quite as well as it proves payment by the complainant. When the complainant asserts that the -money was paid by her, the onus is with her, and she must make proof aliunde. Where there is an ambiguity, the person claiming under the instrument must explain it. When a description suits two persons, the claimant must show that he was the person intended. The complainant has not only failed to make the requisite proof, but the proof in the record shows that she and her brother were not the persons intended in the receiver’s receipt. We have already shown that they did not pay anything; the receiver, no doubt, intended to give the receipt in favor .of the person who paid the money. There was proof before him that Matlock’s interest had been sold- In confirmation of this' statement, the copies of the deed from Elizabeth Matlock to Harmon, and his assignment to Wallace, and also Wallace’s deed to Patterson, which have been introduced in this cause, were taken from the originals on file iii the register’s office, as appears by his certificate. How is this to be accounted for? The probate court office, where they were originally recorded, is the proper depository for deeds. This is a strong circumstance to prove that they were filed there as proof to the register that the interest of Matlock had been sold, and that the purchasers had a legal right to make the payment under the certificate of confirmation. Such proof was necessary, for, as it had been decided that Matlock was entitled to preemption, no person could be permitted to enter the land, unless he could deduce title, and show that he was the legal representative of Matlock in the matter. These deeds were not filed as the evidences of title under the act of congress, as the dates will show. The claim had already been, confirmed to Matlock, who had, under the act of congress, filed, as an evidence of his right, the deed from Burnett. In this circumstance is found too a very satisfactory answer to the charge of a fraudulent entry. The register was in possession of the chain of title, and evidently acted on the supposition that Matlock’s right had been legally divested. The claimant fully disclosed his pretensions to ownership, and the register must have regarded his right as sufficiently established. But this is not the only circumstance. On the 22d of December, 1806, the commissioners confirmed the claim. On the 23d of the same month, only a day after the act of confirmation, Harmon assigned to Wallace ; and eight days afterwards, on the 1 st of January, 1807, the entry was made. This train of events points very naturally to Wallace as the individual who made the entry, and who was recognized as the legal representative of Matlock. On the 3d of January, 1810, Wallace sold to Patterson, and by the recitals in the deed showed an entire familiarity with the whole transaction. On the 22d of September, 1810, Patterson made final payment, and took the receipt in his own name, as the assignee of the legal representatives of Matlock. What evidence did he exhibit of his being the assignee 1 The deed from Wallace, as we must suppose, for it is still in that office, and could have been placed there for no other purpose. Then, if he was as-signee of the legal representative of Matlock, that legal representative must have been Wallace. Here is a complete admission by the register that Wallace was recognized as the legal representative. On that ground alone was the receiver authorized to permit Patterson to make final payment. The charge in the bill is, that Patterson represented himself as the assignee of the heirs. He was not probably so inconsiderate as to profess to claim under them, and at the same time to furnish evidence that he claimed under Wallace, the validity of whose title depended on a divestiture of the right of the heirs. The complainant then has totally failed in the important particular of payment. In her effort to establish a right, she has furnished the most incontestable evidence that it is without foundation. A mere naked right of preemption she may have once had ; but it was not of itself a title, either at law or in equit3>\ She did not consummate the right by paying the purchase-money whilst the proffered contract was open for acceptance. The argument that, as the respondents profess to derive title from the legal representatives of Matlock, they are estopped from denying complainant’s title, she being the legal representative, is entitled to no weight. They are not estopped from objecting to the sufficiency of complainant’s title, even if they claimed under her. Their possession is a sufficient protection against any but a good title. It maybe that they have no title: and even if such appears from the record to be the fact, it does not help the complainant. They do not, however, profess to claim title through her, for they deny that she was the person intended by the receiver in his receipt of payment. They trace title through the administrator’s sale, and insist by that act, the complainant’s title, if she had any, was legally divested; or rather that it was defeated by the sale of Matlock’s interest to Harmon.

Concurring, as we do fully with the counsel of the appellants in the view taken of the facts of the case, we are not called on to make an application of the principles presented in the very profound and interesting argument addressed to us on the law of the case. That argument was only intended to meet a different view of the facts. We may be permitted to remark, however, that possession is an apparent right, and when it has been long continued, it is highly favored by the law, which sustains it by all reasonable presumptions. The authorities abundantly prove that, in favor of long possession, almost every variety of written evidence of title will be presumed. The defective links in the chain of title will be supplied by presumption, and the title declared perfect, where the possession has been continued for a great length of time without interruption. The statute of limitations is but a recognition of the same principle, differently applied. We are not required by the state of the case to apply the doctrine of presumption, arising from lapse of time. All presumptions are in favor of the possessor; none against him. The respondents, who are in possession, have abundant protection in the weakness of complainant’s title, without a resort to the presumptions of law to supply a supposed defect in their own.

Let the decree of the chancellor be reversed, and the bill dismissed.  