
    Fulton, Robb et al. Appellants, v. Doe ex dem. McAfee.
    By an act of congress, Jefferson College, in consideration of certain relinquishments, was authorized to enter certain sections of lands. The Register of the district where the entry was made, was required to issue a certificate, which, the act declared, should vest a full and complete title to the land, and that thereupon a patent should issue. Thé act further authorized the College under its corporate seal, by deed, to transfer the right of location, in whole, or in part, and authorized the assignee to receive a certificate from the Register, and that the title under such certificate should be accounted and held as valid and complete, as if a patent had issued therefor; held, that the - college, or its assignee, by a certificate of entry regularly jnade, acquired an absolute title, equivalent to a patent.
    The authority of the Register to locate, was a general, limited power.
    Lands sold under the United States’ surveys, pass according to the descriptions of the legal subdivisions, whether those subdivisions contain the legal quantity, more or less.
    It is a settled rule, that the existence of a patent, is evidence, that every thing has been performed, which was necessary, to its emanation.
    By the pre-emption act of 1834, it was necessary to prove, both possession at the time of the passage of the act and cultivation in the year 1833, to entitle-the settler to claim the benefits of the law. And this proof could only be made before both the Register and Receiver, neither being authorized to act without the other.
    In an. action of ejectment, it was held not to be error, to refuse testimony which did not tend to prove both possession and occupation according to the pre-emption act, regularly taken before both the Register and Receiver.
    APPEAL from the circuit court of the county of Washington.
    -This was an action of ejectment, brought by Morgan McAfee, against the appellants, in the circuit court of the county of Washington.
    The plaintiff claimed title from the United States, under a patent certificate issued to him by the Register of the land office, at Mt. Salus, by virtue of an act of Congress for the relief of Jéfferson College. By that act, it was provided, that, on the college- relinquishing claim to certain lands in the state of Alabama, the board of trustees were authorized to enter, or cause to be entered, in tracts not less than two sections in one body, such a number of sections of unappropriated land of the United States, within the state of Mississippi, as might be equal to the quantity relinquished by the board, to be entered, or selected, before or after.the-lands had been offered for sale. The entry to be made with the Register of the proper district, who was required to issue a certificate of entry in such form as might be prescribed by the commissioner of the géneral land office. It was further enacted, that such certificate shall vest a full and complete title to the land described therein, in Jefferson College, and thereupon a patent shall issue.
    The act further, authorized the board of trustees to transfer the right of location either in whole, or in part, and. the person legally holding a deed of transfer under the corporate seal of the college, was authorized to make the entry for the quantity transferred, not less than two sections, and to receive a certificate from the Register of the land office of the proper district, to be “ issued to the legal holder of such deed of assignment as the assignee of Jefferson College, and the title under such certificate shall- be accounted and held as valid and complete, as if a patent had issued therefor.” This act was approved 20th April,.1832. The patent certificate of McAfee, who cláimed as assignee of the college, bore date the 19th August, 1834. The plaintiff offeféd in evidence the certificate of the Register, and the above recited act of Congress. The defendants admitted that Jefferson College had relinquished all the lands formerly held by it, as required by the provisions of the act of congress. They also admitted possession of the locus in quo, &c. Upon this evidence plaintiff rested his case.
    The defendants below claimed the land in controversy, as the assignees under six different patents to different persons, which patents bore date in 1837, and purported to be founded on preemption certificates.
    Defendants then offered to prove by witnesses, that prior to the year 1832, and from thence onward to the 1.9th day of August, 1834, and afterwards, eight persons, the original patentees, viz: Lasley, H. Lasley, J. Lasley, B. Black, A. J. Black, G. Mooney, Abel Hart, and H. W. Robinson, were seated and severally settled on the locus in quo, and that they severally prior to the. 18 th day of August, 1834, claimed the benefit of the several pre-emption laws, within the time prescribed, and that said McAfee had notice of said claim, at the time of his location of the college claim.
    
      Also, that said Lasley and others, on the 18th day of August, 1834, were personally present at Mount Salus, before the register of said land office, there opposing the right of said McAfee to locate or enter said land, on the ground that it was appropriated, and that they had a right to enter the same by virtue of the preemption laws then in force, to wit: act of 19th June, 1834, and that they were there with witnesses to prove their settlements and improvements on said lands, with money to pay for and enter the same, which they offered and insisted on doing, before the entry of said McAfee, and in presence- of said McAfee, demanded on the day of his entry, (19th August, 1834,) the right to do so.
    Defendants offered to prove that they had acquired and held possession under said Lasley and others, by purchase before the time of the commencement of this suit. All of which evidence was objected to, and the objection sustained by the court, which refused to admit such evidence, on the ground that the plaintiff’s patent certificate could not he impeachedfor fraud in a court of laio. '
    
    Defendants offered T. L. Sumrall, former register, as a witness to prove that before the commencement of this suit, the pre-emption claims of Lasley and others, had been allowed, and that the patents above referred to were issued thereon, and that commissioner of land office had refused to issue patent to plaintiff, which evidence was objected to and the objection sustained by the court.
    Defendants offered to introduce parol testimony to prove that at the time the plaintiff obtained his certificate, both he and the register had notice of the claim of- said Lasley and others under the pre-emption law, and that they, said Lasley and others, were there insisting upon their rights, and to pay therefor, for the purpose of showing fraud on the part of said plaintiff. But said evidence was objected to, and the objection sustained.
    Defendants moved to exclude plaintiff’s certificate as evidence of title, which motion was overruled. After verdict, defendants made a motion for a new trial, which was overruled. Appeal to this court.
    Mayes and Sanders, for appellants,
    assigned the following errors;
    
      1st. The court erred in overruling the defendant’s motion for a new trial.
    2d. The court erred in refusing to permit the evidence offered by the defendants to go to the jury, and in excluding the same.
    3rd. The court erred in overruling the defendant’s motion to exclude from the jury the certificate given in evidence by,the lessor of the plaintiff.
    4th. The court erred in each and every opinion and decision pronounced against the appellants.
    S. S. Prentiss, for appellee.
    The appellee contends that he' has made out a full and valid title by patent to the lands in controversy, and that appellants have shown no legal or equitable title, either in themselves or others.’
    1st. A patent from the United States is a complete appropriation of the right and title of the United States to the lands embraced therein, and cannot be avoided in an action at Jaw by any subsequent grant from the same source. 3 Peters, 340. 6 lb. 328. 13 lb. 450. A patent free from objections on its face cannot be impeached on a trial at law upon any evidence but that of a prior patent, remaining in full force. 6 Munf. 233.
    Where two patents are granted for the same thing, the second is inoperative until the'first is set aside. 10 John. Reports, 23.
    Now we contend, that the register’s certificate to the assignee of Jefferson college was a patent, so intended by the law, and that it completely divested the United States of all title, and vested the same in said assignee.
    A patent is the final evidence of a grant from the government. It is the mere creature of the law, and subject to such form, and to be issued by such officer as the law may designate. Under the general provisions of the land laws, the President of the United States is the person designated to sign patents. See Land Laws, 1 vol. p. 75, 213. This was not always the case. The very first act of Congress providing for the sale of public lands, passed 20th May, 1785, directed the final deed or patent to be executed by the Commissioner of the land office. See 1 vol, Land Laws, p. 13.
    
      Now let us look at the grant to Jefferson college, and see how and by whom the title is to be consummated. It will be perceived that the mode in regard to the college is different from that prescribed for her assignees. 1st part of Land Laws, p. 496. By the second section of the act it is provided, that upon a location of the college, a certificate shall be issued by the “ Register, and thereupon a patent shall issue.” By the fourth section it is provided that the college may transfer the right of location, and that the assignee upon making the location, “ shall be entitled to receive a certificate or certificates from the Register of the proper land district, and which shall be issued to the legal holder of such deed . of assignment from Jefferson college, and the title under such certificate, shall be accounted and held as valid and complete as if a patent had issued therefor.”
    It is clearly manifest from this language, that the act did not contemplate the issuance to the assignee of any other patent, than the certificate of the Register; in other words, the act, as it was perfectly competent for it to do, constituted the Register the proper officer to make titles in this class of cases, precisely as the President has been constituted the proper officer in ordinary cases. The act says, “ that the title under this certificate shall be accounted as valid and complete as if a patent had issued therefor.” This is all yte ask. A title under an ordinary patent, we have shown, is so valid and complete, that it can be overthrown at law, only by a title under an older patent.
    The conclusion follows, that the title of the assignee of Jefferson College, derived from a certificate under the fourth section of the act referred to, can be avoided at law only by an older patent. That congress has sole power of declaring the dignity and effect of titles emanating from the United States,- see 13 Peters, 45Q.
    The case of Ross v. Borland et al. 1 Peters, 656, affirms the principle contended for, though it admits that the practice of a state may change the general law on this subject.
    We however deny the validity in this state of any other than the common law principle.
    If we are correct in our position, that the elder patent must prevail at law over a younger grant from the same source, then the controversy is at an end, and the judgment below must be affirmed. If however the court should not sustain this position, we then say:
    2d. That defendants below offered no evidence, that could legally or equitably invalidate the elder grant. 1st. They offered younger patents, issued in 1837, which purport upon théir faces to have issued upon ordinary entries made, not under any preemption law, but under the general act of 24th April, 1820. All the parol testimony offered, to prove that these patents issued upon entries made by virtue of any other law, than the one recited, was properly rejected, there being no legal evidence offered to connect them with any title commencing anterior to the date of McAfee’s certificate.
    The appellants say, that those under whom they hold, claimed the land in controversy under the pre-emption law of June, 1834,' that that law vested in them a right immediately upon its passage, and that McAfee, having notice of their claim, could not appropriate the lands by his location, in other words, that the preemption law was of itself an appropriation of the lands in question. Let us examine this point.
    The pre-emption law of 1834, is not a grant, nor does it of itself, convey any title whatever to the person occupying and cultivating the public lands. "
    It is a mere proposition which the occupant is not bound to accept. Title commences only from the time of performance of the conditions, to wit: proving cultivation and possession, and paying the minimum price.
    If before performance of such conditions the land is sold under any law authorizing its appropriation, the right of pre-emption is lost. 5 Martin, N. S. 417. 6 Martin, N. S. 342. 9 Louisiana Reports, 53.
    The pre-emption law of 1834, vests no title, legal or equitable in the occupant, until he accepts its propositions in the manner prescribed- by the act. It is not a contract on the part of the government, but a mere proposition, which at any time before acceptance may be withdrawn. It cannot be doubted that Congress could have repealed that law six months or any time after its passage, as to all who had not availed themselves of its provisions, and that such repeal would have violated no vested right. Neither can it be doubted that Congress could after the passage of that pre-emption law, have sold and granted any public lands subject to its provisions, provided such grant was executed before the occupant had accepted the proposition of pre-emption.
    The pre-emption law is not a contract. There are neither parties nor consideration to it. The occupant is not bound to comply with its provisions,.and until he chooses to do so, it is hard to perceive in what his right or .equity consists. If he has any equity, it is certainly of the very lowest order, being founded upon no consideration and supported by no principle of contract. On the other hand, the assignee of Jefferson College combines with his legal title the highest equity. His title is based upon both, equitable and legal foundation. The law under which he claims was a’ contract between the Government and Jefferson College, based upon good and valuable consideration, which consideration, to- wit: an equal quantity of lands owned by the College had passed into the possession of the United States long before the pre-emption law of 1834 was enacted. He located the land in controversy in pursuance of an express contract with the United States, and at a time when the title in the United States was perfect, and béfore any right, legal or equitable, had accrued to any one'else. The pre-emption claim set up by the defendants below, is based upon the pre-emption law of 1834, (see first part of Land Laws, 535,) reviving that of 1830.
    The act of 1830, (Land Laws, first part, 474,) provides, fourth section, that the sale of the public lands shall not be delayed by its provisions, “ nor shall the right of pre-emption, contemplated by this act, extend to any land which is reserved from sale by act of Congress or by order of the President, or which may have been appropriated for any purpose whatever
    
    The land in controversy was appropriated to McAfee by virtue of the act for the relief of Jefferson college, and his entry relates back to, and derives validity from that law as fully as a pre-emption entry can relate back to, and derive validity from the law under which it is made.’ • But the Jefferson college act bears date,-, 1832, while appellants profess to claim under the pre-emption act of June, 1834. Both acts confine the persons claiming under them to unappropriated lands.- We are
    Von/V. — 64 willing to consider the terna unappropriated as meaning the sanie in both acts. McAfee under the old law, makes the first actual appropriation; he has then both the older law and the older equity.
    But again. It appears by the bill of exceptions, that the pretended pre-emptors had claimed the benefit of the pre-emption law prior to the 18th of August, 1834. Also again, on said 18th, and that on the 19th, to wit, the day McAfee’s certificates issued, they were present a third time, opposing McAfee’s right and asserting their own. Now their claims were those over which the register and receiver had jurisdiction by the.law of 1830. It seems they were rejected. It will be presumed that the proper officers acted correctly in rejecting them. On this subject, the court does not sit to review the decision of the land officers upon, a subject expressly confided to their judgment, even though it may consider that they ought to have decided differently. To this point the following decisions are full. 4 Louisiana R. 547. 6 lb. 10. Vide United States Attorney General’s opinion on this point, Land Laws, 2 part, p. 84.
    3d. But even admitting that McAfee’s patent certificate could have been avoided in this action by showing valid 'outstanding pre-emption rights under the act of 1834, we deny that any legal evidence was offered below, bringing any one within the benefit of that act. The pre-emption act of 1834,requires cultivation of the lands claimed in 1833, and possession at the time of the passage of the act. Neither of these necessary prerequisites appeared or were offered to be proven on the trial below; without both of which no one was entitled to the benefit of the act.
    The patents offered by defendant so.far from exhibiting any right of pre-emption, expressly recite that they were issued upon ordinary entries under the act of the 24th of April, 1820. All the other evidence offered was parol; this was very properly rejected as incompetent. Parol evidence was clearly not admissible to explain. the patents, or to show that pre-emption claims had been established by those under whom defendants held. But even had the parol evidence offered been admitted, it would not have establishéd a right in any one to the benefit of the pre-emption act of 1834. It is no where averred that the pre-emption Claimants had cultivated the land in 1833, according to the requisitions of the act of June, 1834, nor was any evidence offered •to that point. The defendants offered to prove that Lasley and others were seated and settled on the locus in quo, and also that they were before the Register on the 18th and 19th August, 1834, with witnesses to prove their settlements and improvements. Now, being seated and settled on the public lands, gives no privilege under the act of 1834, neither do settlement and improvement. ' Cultivation in 1833, and possession at the passage of the act are 'both essential. Now there may be settlement and improvement, without cultivation and possession.
    Defendant offered to prove" that Lasley and others continually claimed the lands under the pre-emption law. But we imagine mere proof of claim set up by a party is not evidence of title to the thing claimed. The Register alone is not authorized by law to admit the privilege of pre-emption. The Register' and Receiver constitute the tribunal to decide upon-the claim, and the Register was right in refusing the application to him alone. Seo 3d section, Act of 1830.
    ■ 4th. We will notice but one point more, and that is the averment of fraud on the part of McAfee, in obtaining his patent certificate. We deny that any evidence was offered on the trial below tending in the slightest degree to impeach McAfee’s certificate on the ground of fraud. ■ The bill of exceptions states that the court ruled out the parol evidence offered to prove that Lasley and others were seated and settled on the lands in controversy, and also that McAfee at the time of his entry had notice of their claim, on the ground that a patent could not be impeached for fraud at law: •. Now if the decision of the court below ruling out this evidence was correct, as I have endeavored to show, it is very immaterial whether the judge’s reason for it was right or wrong, a right decision is not vitiated by a wrong reason. Without entering therefore into the question whether fraud in a patent can be reached at law, upon which there exists a difference of opinion, it is sufficient to say that the evidence ruled out does not tend in the slightest degree to prove fraud either in law or in fact. No collusion between McAfee and the Register is hinted at, and the pretended fraud consists simply in .the fact that McAfee had notice of the claim of Lasley and others. They too had notice of McAfee’s claim, and if that constitutes fraud, their hands are not cleaner than his. This notice on the part of McAfee is a second, time set forth in the bill of exceptions as evidence of fraud; and the issuance of the certificate is for the same reason set up as a fraudulent act. The deduction of fraud from the evidence offered and ruled out is absurd. As to what constitutes fraud, see The United States v. Arredondo, 6 Peters, 727-8. When two persons; apply to purchase the same land the decision of the Register is good, and fraud cannot be presumed, notwithstanding his decision may appear to have been wrong. 4 Louis. Rep. 547; 6 do. 10; 9 do. 53. .In relation to the validity of Register’s certificate to McAfee, it was not necessary to prove it. The Register is a United States’ officer, and his official acts are entitled to credit. 4 Martin, N. S. 260. ' ' . '
   Opinion of the court by

Mr. Chief Justice Shamcey:

Morgan McAfee,-the appellee, instituted an action of ejectment in the circuit court of Washington county, for a tract of land containing two sections, then in possession of, and claimed by the appellants, and having recovered judgment, the defendants below appealed, and now urge a,reversal of the judgment on the ground of want of title in McAfee, and superior title in themselves. As the plaintiff ill ejectment must recover on the strength of title, we will first inquire into the sufficiency of McAfee’s title. Congress on the 20th of April, 1832, passed an act, entitled “ an act for the relief of Jefferson College, in the state of Mississippi.” By the first section, provision is made for the relinquishment of certain lands owned by the college in the state of Alabama. By the second section, the board of trustees was authorized to locate or enter, or cause it to be done, in tracts not less in quantity than two sections in one body, such a number ‘ of sections of the unappropriated land of the United States, within the state of Mississippi, as might be equal to the quantity relinquished by. the board, to be entered or selected before or after they had been offered for sale, the entry to be made with the Register of the proper district', who was required to issue a - certificate of entry in .such form as might be prescribed by the commissioner of the general land office. The section concludes by declaring that such “ certificate shall vest a full and complete title to the land described therein in Jefferson college, and thereupon a patent shall issue.'”

The fourth section, authorizes the board to transfer the right of location either in whole or in part, and authorizes the person legally holding a deed of transfer, under the corporate seal of the college, to make the entry for the quantity transferred, and to receive a certificate from the Register of the land office of the proper district, to “ be issued to the legal holder of such deed of assignment, as the assignee of Jefferson College, and the title under such certificate shall be accounted and held as valid and complete as if a patent had issued therefor.”

McAfee introduced a certificate from the Register of the land office, at Mount Salus, Mississippi, purporting on its face to have issued in pursuance of the fourth section of the act of congress above mentioned, dated the 18th day of August, 1834, by which it is recited, that he having deposited a deed of transfer from Jefferson College, under the corporate seal of the' college, for the quantity of two sections of land, containing twelve hundred and eighty acres, more or less, did thereupon enter, as assignee of Jefferson College, the land therein mentioned, which is particularly designated by the proper numbers attached, to the legal divisions and subdivisions of the surveys, containing in the whole, thirteen hundred and twenty-three acres. The certificate then proceeds by making an absolute grant from the United Slates to McAfee, as assignee of Jefferson College, for the land so located. The act of congress under which it was granted was also read, and it was admitted, that Jefferson College had made the relinquishment required by the act, ánd that the defendants were in possession; and here the plaintiff below closed his testimony.

This certificate we deem amply sufficient as an absolute conveyance. Congress has undoubtedly the control of the public domain, and may at discretion adopt such means of disposing of it as may seem expedient. Usually the final grant to purchasers is made by patent, and this is done in pursuance of a general law, but it does not follow that there can be no other mode of disposing of it. It may be, and often is, granted by act of congress without patent, and such disposition effectually passes the legal title. So the conveyance may be made by a, general or special agent appointed by law, or by law it may be declared what shall amount to a grant, or what shall pass the title. The patent is a mode prescribed by law, and its effect declared by law. The mode may be changed, both as to the officer who shall execute it, and the manner of doing it, and the effect or dignity of a title made according to any prescribed form, may be regulated and declared by congress. In this instance, the title under the certificate is declared to be as valid and complete' as if a patent had issued. No other title was provided in this description of cases, and this is in every respect equal to a patent.

But it is insisted, that although it be equal to a patent as evidence of title, yet that it should not prevail as against the. appellants, for several reasons: First, because the deed of transfer was for two sections or twelve hundred and eighty acres, and the certificate is for thirteen hundred and twenty-three acres. Hence it is said the Register transcended his authority, his power being but a special limited power, which should have been strictly pursued, and that the certificate’is therefore void. It is not conceded that the power of the Register was a special' limited authority, but it is believed that it was a general limited power, he being the officer appointed to receive all entries and. locations made in his district. If so, greater latitude might be properly exercised in performing the power. But even supposing his power to have been such as it is contended it was, still, there was no notation of it.

By the first section of the act, the college was required to relinquish by sectional numbers; and by the second section, the board of trustees was authorized to enter such a number of sections, or the legal subdivisions of sections, as might be equal to the number of sections relinquished. The grant to the college was for a certain number of sections, not of acres; and although six hundred and forty acres make the strictly legal complement of a section, yet we know as a matter of public notoriety, that it is perhaps not one section in ten that contains that quantity. Some contain more and some less, but they are sections nevertheless, being designated with greater certainty by number, township and range. By a general grant of a .section by its proper number, all the land in it would pass, notwithstanding it might be described as containing six hundred, and forty acres. This rule is as applicable to the government as to individuals. It. is undoubtedly the true one hi this case, because it was an exchange of equal quantities of sections, according to the actual, surveys, without regard tó the quantity of acres they might contájn. • Had the college a right to enter the land located by McAfee ? It .undoubtedly had, and the assignee 'had ’the same right. If it were otherwise, the authority under,the, act to locate an equal quantity of sections of unappropriated land, was of necessity limited to such sections as contained six hundred and forty acres, or unappropriated land of a particular description.- Jefferson college transferred all the right to two sections as fully’as it-had acquired it. ‘ The deed of transfer was for two sections, containing twelve hundred and eighty acres .more, or less., It is plain this was intended to cover any surplus or, deficiency .that might be in the sections located. Quantity, when it is not the leading, object, and most -certain description in the giant, always yields to known boundaries, and the. sections surveyed under, the laws of Congress have known boundaries and legal designations, which cannot be varied. As an evidence • that the actual survey controls the number of acres in all public 'surveys and grants, the preemption laws of 1830 and ’54, which authorize the entry of “one quarter section, or one hundred and sixty acres,” have been uniformly held to justify the 'entry of a quarter section, or fractional division of á section, containing more than that number of acres. The certificate of the register being for two sections, according to their legal subdivisions, is in exact accordance with the act of ■'Congress. The assignee was authorized to enter in the manner prdvide'd, “ and in the quantity so transferred,” by which was evidently meant-the quantity of sections transferred. That is the sense'in which the word “quantity” is used throughout the whole act. ■ This objection to the’title of the'appellee is therefore not well founded. - .

It is further insisted, that the certificate was hot sufficient evidence of title, for want of proof that Jefferson College had by deed of transfer under the corporate seal, transferred, the right to locate two sections of land. To this it may be answered, that it is believed.to be the settled rule, that the existence of a patent is evidence that every thing has been performed which was necessary to its emanation. The register is an accredited officer, and it is to be presumed that he acted correctly! The deed of transfer was a matter of evidence to be laid before him.

The appellants claim the land in dispute by virtue of six different patents, bearing date subsequent to the certificate of the ap-pellee, which purport in the margin to be founded on pre-emption, certificates. At. the trial they offered parol proof, which it is said conduced to prove that these patentees, under whom they claim, had pre-emption rights to the land when it was entered by Mc-Afee, and that they, were asserting their rights; and hence it is insisted that the land was appropriated. This proof was rejected by the court, and this is assigned for error. The substance of the proof is, that prior to the year. 1S32, and from that time until the 19th of August, 1834, and afterwards, the individuals to whom these patents have since issued, “ were seated and severally settled on the lands in controversy,” and that prior to the 18th of August, 1834, they, claimed the benefit of the several acts of Congress in such cases provided, to enter and locate the land “so seated upon by them, within the time prescribed by law as pre-emp-tors;” and that McAfee had notice of their claims. That on the 18th of August, 1834, they were personally present at Mount Sa-lus, before the register of the land office, opposing the right of McAfee to enter, on the ground that the land -was appropriated, and that they had a right to enter the sarde under the pre-emption laws then in force. “And also, that they were then there with witnesses to prove their settlements and improvements on said lands, with money to pay for the same, which they insisted on doing before the said McAfee obtained his certificate, and had in the hearing and presence of said McAfee, demanded the right to do so of the register of the land office at his office.” The bill of exceptions was taken to the opinion of the court in overruling a motion for á new trial, and' if the testimony was material, it was improperly ruled out. By our statute, any party dissatisfied with the decision of the court in overruling a motion for a new trial, may embody the substance of all the testimony in a bill of exceptions, and take his writ of error. So when testimony is ruled out, the substance of it at least must be set out, so that the appellate court may know what the party has been deprived of. Smith v. Natchez Steam Boat Company, 1 Howard, 495. We are, therefore, to suppose that the facts intended to be proved are- here set out, and their materiality is the question.

By the act of Congress of the 29th of May, 1830, every settler or occupant of public land prior to the passage of the act,, who was then in possession, “ and cultivated any part thereof in the year one thousand eight hundred and twenty-nine,” was authorized. to enter with the register, at the minimum price, one quarter section, to include his improvement. By the third section, it was provided that before such entries should be allowed, proof of settlement or improvement should be made to the satisfaction of the register and receiver of the proper district, “ agreeably to the rules to be prescribed by the commissioner of the general land office for that purpose.” This act remained in force one year after its passage. By the act of the 19th of June, 1834, every settler or occupant of the public land who was then in possession and who had cultivated any part thereof in the year one thousand eight hundred and thirty-three, was declared to be entitled to all the benefits and privileges provided by the act of the 29th of May, 1830, which last mentioned act was thereby revived, to continue in force two years. Under this act possession of the land at the time of its passage, and having cultivated any part, thereof in the year 1833, gave to such possessor a pre-emption right to one quarter section, to include his improvement. Neither possession alone, nor cultivation alone conferred the right, but both were requisite. Such is the obvious meaning of the act, and so it was understood and enforced by the commissioner of the general land office. See his instructions, 2 Land Laws, p. 589. By the third section of the act of 1830, the proof of settlement was directed to be made to the satisfaction of the register and receiver of the district. Proof made to either one of them was not a compliance with the law. They were authorized to adjudicate jointly on the right of the applicant. On this subject the instructions above referred to are explicit. The commissioner of the general land office says to the register and receiver that cultivation in 1833, and possession of the land on the 19th of June, 1834, “must be established by the affidavit of the claimant, supported by such corroborative testimony of disinterested. witnesses as shall be. satisfactory to both of you.” Thus we see what was necessary to entitle a claimant to a pre-emption right, and how it was to be consummated. Did these claimants bring themselves within the law ? The proof oifered to the court was, that these individuals £e were seated and severally settled on the lands in controversy.” I need not argue that this did not prove cultivation. It is not every one who is settled on land that cultivates it. The one does not necessarily embrace the other. Cultivation being necessary, should have been proved, and not left to inference; and especially not to an inference so remote as it is in the present case. Even supposing- then that a claim coming strictly within the pre-emption law, would be an entry or appropriation which would connect itself with the junior patents, and by that means overreach the elder one, still this testimony shows no such entry or appropriation, and consequently the younger patents derive no extraneous aid from it. We do not wish to be understood as deciding that a court of law can in this state, look beyond the patent and examine the progressive stages of title from its incipient state.” Such may have been the practice in this state, and such it seems to have been understood to be by the Supreme Court of the United States in the case of Ross v. Borland. We are not aware that it has been so directly adjudicated as to make it authoritative.

It is also insisted that the court erred in ruling out the testimony, because it conduced to prove fraud in the procurement, of the certificate. The proof which the pre-emption claimants offered to make to the register in support of their claims, is relied on to support this position. By the bill of exceptions it appears that on the trial a witness was introduced to show what proof the parties had offered to make to the register. Whether the register.acted improperly in refusing to receive it, must of course depend upon its sufficiency to establish a pre-emption right. It appe'ars that they were present before the register urging their claims, with witnesses to prove their settlements and improvements on said land, with money to enter and pay for the same.” Now if this was all they offered to prove, and we mus.t suppose it was, the register was perfectly right in refusing to allow them to enter the lands. Proof of «-settlements and improvements” was no'proof of occupancy at the passage of the act and cultivation in 1833. They may have made settlements and improvements, and abandoned them; or they may have been made after the’ passage of the act; or made without cultivation. We have ■already said that possession when the act passed, and cultivation in'1833, were both necessary. It was not improper in the register to refuse to receive any proof as sufficient which stopped short of the legal requisites. But suppose they had offered to bring themselves within the law by proving both, still they fail in showing fraud, because the proof should have been addressed to the register and receiver both. Both were required to decide on it.’ If this view of the subject be correct, we cannot perceive how the testimony conduced to prove fraud, since the proof was insufficient to establish-a right, and the register acted correctly in rejecting it. Having no right, they could not have been defrauded. Their mere unsupported claim was no evidence whatever, that they were entitled to the benefit of the pre-emption law. Now although the court ruled out' the testimony and gave as a reason that fraud could not be proved at law, and although we may differ with the court in the reason assigned, yet we must approve the act. It is not the reasoning of the court that we are to correct, it is its acts. And inasmuch as the testimony did not conduce to prove fraud, We think it was properly ruled out.

If this view be correct, the certificate is relieved from the objections, and the younger patents are unaided by a prior entry, and the two titles stand opposing each other on their intrinsic merits only. In this attitude the oldest must prevail.

The foregoing remarks cover all the grounds taken in the assignment of errors, and in the arguments of counsel, so far as they are fairly presented by the record, which has been scrupulously examined in order to give the arguments their due weight. If it had been made appear by the evidence offered to be introduced that the patentees were entitled to pre-emption rights, then we should have been called on to decide as to the validity and effect of such right, when consummated by patent,'contending against an older patent, and whether the remedy was at law or equity. If the proper proof had been offered to. the register and receiver, then we should have been called on to decide the question of fraud, and whether that was an enquiry to be made at law or in equity. -But as we can know nothing of the case except from the record, and as the record does not present these questions, we cannot adjudicate them. We have been more particularly scrutinizing in our examination of the merits presented by the record, in order to account for the existence of the junior patents, but it is not sufficiently explained. They can only be accounted for on one of two suppositions;'either that they were improvidently issued, or that the case is susceptible of more testimony than has been laid before us. If the former supposition be the true one, no harm is done; and if the latter, then the case is still within the reach of an appropriate remedy. But our view of the bearing of the testimony and the whole case made out by the record may be wrong, and that of the counsel for the appellants right; if so, there is a tribunal before which the error may be corrected.

The judgment must be affirmed.  