
    *The Lessee of J. J. Coombs and T. Ewing, Jr. v. John Lane.
    In respect to official acts, the law will presume all to have been rightfully done, unless the circumstances of the case overturn this presumption; and, consequently, acts done which presuppose the existence of other acts to make them legally operative, are presumptive proof of the latter.
    Facts presumed' are as effectually established as facts proved, so long as the presumption remains unrebutted. ,
    An entry, made by the registrar of aland office, in the “tract-book,” that certain tracts are “ school lands,” is prima facie evidence that they were duly selected and approved as such.
    Where such an entry did not show for what township the tracts had been selected, but they had been taken possession of, and held, as its school lands, for over sixteen years, by the township in which they lie, and no claim had been made to them during all that period, either by the government or by any other township, or by any individual, and no other school lands had been selected for said township, and there was no evidence that any other township was without school lands: Held, that it should be presumed that the lands had been selected for said township in which they lie.
    It may be that, under the acts of Congress of April 30, 1802, and March 3, 1803 (2 Stat. at Large, 173, 225; 1 Chase, 72-74), it was not necessary that a survey, even into townships, should have been made, in order that the title to section 16 should vest in the state.
    But it is not clear that it was designed, by these acts, to appropriate section 16, specifically within the bounds of the “donation tract,” for school purposes. It seems most likely that that tract was considered as falling within the denomination of lands “granted or disposed of,” referred to in the act of 1802; and that, therefore, not section 16, but, in the language of the act, “ other lands equivalent thereto,” were intended as the school lands of this tract.
    'The “ donation tract” was not required to be divided into sections by the act of Congress of May 10, 1800. 2 Stat. at Large, 73. That act required such lands only to be surveyed or subdivided, as the previous act of May 18, 1796 (1 Stat. at Large, 464), directed to be sold. But no part of thq “ donation tract” was ordered to be sold by this latter act. Besides, there are provisions in the act of 1800 that forbid its application to the “ donation tract.”
    ’“There was ample authority, under the acts of Congress of 1803 aforesaid, and 1818 (.3 Stat. at Large, 409), to select school lands for the “ donation tract.”
    Under the provisions of the acts aforesaid, of 1802 and 1803, every township, fractional or entire, containing a section 16, was entitled to it for school purposes, if undisposed of; if disposed of, then to its equivalent.
    
      This was a motion for a new trial, reserved by tbe district court in Morgan, county.
    The lands in controversy are lots Nos. 7 and 8, in the ungranted portion of the donation or 100,000-acre tract, in the Marietta district, and lying in township 9, range 11, in Morgan county, Ohio.
    The following acts of Congress show the origin and history of said donation tract:
    Section 3 of the apt of April 21,1792, “ authorizing the grant and ■conveyance of certain lands to the Ohio Company of Associates,” authorizes and empowers the President of the United States to grant and convey to Rufus Putnam, Manasseh Cutler, Robert Oliver, and Griffin Green (agents and trustees of the Ohio Company), in fee simple, in trust for uses therein expressed, “ a further quantity of one hundred thousand, acres of land: Provided always, nevertheless, that the said grant of one hundred thousand acres shall be made on the express condition of becoming void, for such part thereof as the said company shall not have, within five years from the passing of this act, conveyed in fee simple, as a bounty, and free •of expense, in tracts of one hundred acres to each male person, not less than eighteen years of age, being an actual settler at the time of such conveyance.” 1 Little & Brown’s Statutes at Large, 258.
    [A large portion of this 100,000-acre, or donation tract, not having been conveyed to actual settlers, reverted to the United States .at the end of said five years.]
    On the 18th of March, 1818, Congress passed an act providing, .among other things, for the sale of said ungranted lands in the donation tract.
    *The first section of this act provides, “That for the purpose . of ascertaining the quantity and providing for the sale of the lands ■belonging to the United States within the limits of said tract of 100,000 acres,” etc., “it shall be the duty of the surveyor-general, .and he is hereby authorized, to require of the said Rufas Putnam, .and other surviving patentees in trust as aforesaid, to make a report to him of the quantity and situation of the lands by them conveyed, as bounties, to actual settlers, according to the condition of said third section and grant aforesaid; and also a duly attested cojiy of the field-notes and plat of the surveys of the lands by them conveyed to actual settlers as aforesaid. And the surveyor-general, on receiving a satisfactory report of the quantity and situation of the lands so conveyed, shall cause the residue of the lands within the said tract to be surveyed in the same manner as the-other public lands; or, if he shall deem it more convenient, into-tracts of one hundred acres, conforming, as far as practicable, to-the plan on which lots granted to actual settlers were laid off; and ho shall make return of the surveys to the general land office, and the register of the land office at Marietta.” ,
    The third section of the act provides, “ That such part of the-tract described by the first section of this act as shall appear to belong to the United States, shall be offered for sale at Marietta,” “with the exception of the usual proportion for the support of schools'; ” the sales to be under the direction of the register and receiver of the Marietta district, and “ on such days respectively as shall, by the proclamation of the President, be designated for that purpose,” etc. See 3 L. & B.’s Statutes at Large, 409.
    [The plat of the donation tract made pursuant to this act shows three large tracts, marked A, B, arrd C, of lands belonging to the United States, in consequence of not having been conveyed to actual settlers by Putnam and others. Tract C lies in township 9, range 11, Morgan corinty, and the lots in controversy are in the south end of said tract C.]
    *On the trial before the court (to which the cause was submitted by consent of parties, without the intervention of a jury), the plaintiff gave in evidence a certified copy of a patent from the United States to Samuel A. H. Marks, dated July 1,1851, for lots Nos. 7 and 8 in the donation tract, Marietta, Ohio, district, township 9, range 11, of lands subject to sale at Cliillicothe — 200 acres. The patent recites the location of warrant No. 1,328, for 1G0 acres, issued under act of September 28, 1850, to Samuel A. H. Marks, sergeant United States marine corps, Florida war. Excess paid for, as per receipt No. 17,490.
    Also, deeds regularly executed, acknowledged, and recorded) from the said Marks to the lessors of the plaintiff; and it being-admitted that the defendant was in possession of the land sought to be recovered, the plaintiff rested his case.
    The defendant then gave in evidence an exemplification from the records and files of the general land office, of certain papers sent by the commissioner of the general land office to the clerk of the court in Morgan county, at the instance of one of the-lessors of the plaintiff, for the use of either party to the suit,, dated August 9, 1852. The papers contain:
    
      1. The proclamation of the President of the United States, for sales at Marietta of the lands belonging to the United States, in said donation tract, pursuant to said act of March 18, 1818, and for sales at Yincennes of certain lands also mentioned in said act, with a memorandum in red ink, at the foot: “No sales at Vincennes. See proclamation of the 19th of April, 1821, No. 45.”
    2. A certified copy of a plat of the ungranted lands in the donation tract of 100,000 acres lying in township 9, range 11, surveyed by Joseph Francis, 1818. There is nothing in this plat indicating lots 7 and 8 to be school lands» It is surveyed into 100-acre lots — no section lines marked.
    3. A description of the lands surveyed, with the field notes. Nothing about school lands here.
    *4. Letter from the treasury department to Joseph 'Wood,. register, Marietta, dated July 13, 1805.
    [This is a letter communicating certain selections by the secretary of the treasury, of school lands in lieu of section 16, for certain townships in which section 16 had been sold or disposed of, made pursuant to section 7 of the act of May 20, 1802, and section 3 of the act of March 3, 1803. See 2 L. & B.’s Statutes, 175, 226. So much of this document as has any relation to the donation tract is here copied.]
    “Treasury Department, July 13, 1805.
    “Sir: — I wrote you on the 11th instant, on the subject of the selection of certain reserved sections in lieu of such sections No. 16 as might have been sold, granted, or disposed of.
    “ There are within the limits of the Ohio Company Purchase two tracts, sold or granted to the said company, in which no reservations or appropriations were made by Congress, and in which, therefore, section No. 16 has been sold or granted. For a clearer elucidation of that point, I refer you to the plat some time since transmitted, and to the inclosed copy of a communication made on the same subject by me, during the last session of Congress, to Mr. Tallmadge, chairman of a committee of the house of representatives. To these 1 will add, that by an inspection of the plat, it seems that, in the 100,000-acre or donation tract, there were only four entire and four fractional sections No. 16; one of 
      
      which last, being included in the tract G, was not ceded by the Ohio company, and remains undisposed of.
    
    “In lieu of the seven sections, or fractional sections No. 16 contained in the said tract of 100,000 acres, I have selected the following, viz :
    '"'TO REPLACE—
    Section 16, township 3, range 8,
    “ 16, “ 3, “ 9,
    “ 16, “ 4, “ 10,
    “ 16, “ 8, “ 11,
    Eract. 16, “ 16, 8, 9,
    16, 10,
    SELECT—
    Section 8, township 3, range 8.
    “ 8, “ 3, “ 9.
    “ 8, “ 4, “ 10.
    “ 8, “ 8, “ 11.
    An equal quantity of the tract A,, lying in township 4, range 8, within^the said donation tract, and to be laid on the north end of the same.
    An equal quantity of tract C, lying in township 9, range 11, within the said donation tract, and to be laid on the south end of the same.
    [Here follows a list of similar selections for eleven other townships, none of which, however, are in the donation tract, and township 9, range 11, is not one of the number. Said document will be found at length in the printed volume relating.to public lands, which is made evidence in the case.]
    5. Copy of plat of part of Marietta district, showing tracts A and C within the 100,000-acre tract referred to in the above letter of July 13, 1805. This plat indicates the ranges, townships, and sections of the lands bounding the donation tract on the south and west. It also indicates, by a X, the places where section 16 would fall if the surveys of the adjoining lands were carried through.
    ■ 6. Letter from the commissioner of the general land office to Wyllis Silliman, register, Zanesville, dated November 18, 1819. This acknowledges the receipt of a, letter from Mr. Silliman of the 8th instant, and says: “ The secretary of the treasury has approved -of the selection of the three unsold quarters of sections 21, 6, 10, and of the southwest quarter of section 15, same township and range, for the use of schools, in lieu of 16, 5, 10. You will, therefore, reserve them from sale.” After the copy of the letter, is the following :•
    “ The following are the entries made on the tract-book, showing the disposition made of land in township 6, range 10 :
    “ On the page occupied by section 15 — The southwest quarter of this section reserved for the use of schools by the secretary of the treasury, on November 17, 1819, in lieu of 16, 5, 10. See section 21.
    *“On the page occupied by section 21 — The northeast, southeast and southwest quarters of this section reserved by the •secretary of the treasury for the use of schools, in lieu of sections 16, 5, 10, on November 17, 1819. See southwest quarter of 15.”
    The defendant then further proved that he was in possession of the land in dispute at the time the same was entered by the said Marks, claiming to hold the same by a lease from the trustees of Windsor township, Morgan county, which was composed in part of fractional township 9, range 11, in the district of lands now subject to sale at Chillieothe, being formerly in the Marietta land district; &nd that he had been so in possession from the year 1834, claiming to hold the same as school lands belonging to said township 9, range 11, the trustees of which township took possession thereof, as also of lots 6, 9, 10, 34, and 59, in 1834, as school land, and rented it as ■such. He also proved that before and at the time of the entry by Marks he was in the actual cultivation of, and had an actual settlement upon, said land; and it was admitted that he had given no consent to the entry by said Marks at the land office.
    By consent of 'parties, also, so much of the printed volume of instructions and opinions of the secretary of the treasury and commissioner of the general land office, printed by Gales & Seaton, in 1838, in pursuance of a resolution of the senate, dated February 28,1837, was read in evidence, as was applicable to this case, in lieu of exemplified copies.
    It was also admitted that township 9, range 11, was a fractional township, containing a greater quantity of land than .one-half, and not more than three-quarters of a township, and that no selection of school land had ever been made for said township, unless the land now in controversy was such.
    It was also admitted that said lots 6, 7, 8, 9, 10, 34, and 59 constitute the south end of tract C, referred to in the secretary’s letter of July 13, 1805.
    The defendant then further gave in evidence a certificate of ^Anthony Walke, register of the Chillieothe land office, dated September 22,1852, and which, it was admitted, was a true extract from the tract-book formerly kept in the land office at Marietta, of which office it was admitted that Joseph Wood was register, from. 1803 to a date later than 1834.
    
      It was also proven in the case, that on the new tract-book made out in 1840, and used in the Chillicothe land district since that period,, the said land was not designated as school land.
    The certificate of the said Anthony Walke is as follows:
    “Bemnant oe the Donation Tract oy One Hundred Thousand' Acres.
    
      
    
    "’Intervening entries omitted.
    “ The above appears to be in the handwriting of Joseph Wood,, the late register of the Marietta land office; and I further certify, that I have not been able to find any plats of surveys of land for township 9 range 11, in this office, as should have been transferred from Marietta land office.” (He also certifies that the words “ school”’ and “ do,” “ school land” are “ in ink,” and apparently the: same handwriting as the other entries.)
    The defendant further gave in evidence the deposition of said' Anthony Walke, proving that he is, and has been since November-1, 1849, register of the Chillicothe land office.
    *Also proving the location of the warrants, May 20, 1851, by Thomas Ewing, Jr., as attorney for the parties. Does not fiecollect that any evidence or affidavit was offered or filed, showing that there was no actual settlement or cultivation on the lots, nor did he suppose any-necessary. Nor was any evidence produced, showing that the locations were made with the consent of the set-tiers, “ as the books themselves showed the lands were vacant, and subject to entry.”
    It was also admitted that the trustees of township five, range ten, never accepted or took possession of the land on the south end of tract C, selected by the secretary of the treasury as school lands for said township, on July 13,1805, but that the trustees of said township did take possession of the southwest quarter of section 15, and the northeast, southeast, and southwest quarters of section 21, in township 6, range 10, selected on the 17th of November, 1819; which last-mentioned lands have been held and enjoyed as school .lands for said township 5, range 10, ever since.
    Upon the foregoing evidence the court found for the defendant; and thereupon the plaintiff moved for a new trial.
    
      J. J. Coombs, for plaintiff:
    I. In order to transfer the title from the United States, and vest it in the state, for the use of schools, there -must be an official act performed by the secretary of the treasury. 4 Lit. & Brown Stat. 179; 2 Ib. 226. If this official act has never been performed by 'that officer, then it is clear that no title has ever vested. Ho can •only perform such act by matter of record in his department; not necessarily by a strictly formal and technical record, but by means >of some authentic public writing in the treasury department. 1 -Greenl. Ev., sec. 483. Congress has, by numerous acts,, recognized the doctrine that the governmental departments are offices of record, and has expressly given to their records all the dignity, as evidence, •of the most solemn judical records. Section 4 of the act of April 25, 1812, 11 for the establishment *of a general land office in the department of the treasury,” and section 5 of the same act, 2 L. & B. 717;. act of January 3, 1823, as .to authentication of copies, 3 lb. 721. Any attempt by a public officer to convey title to land by virtue of his office, without some act in writing, would be void under the statute of frauds. Remington v. Linthicum, 14 Pet. 84.
    II. It may be safely admitted that the secretary of the treasury •could have performed this official act, through the instrumentality of the commissioner of the general land office, while that office was in his department and under his supervision. But whether directly hy himself, or by a subordinate officer in his department, acting •undei his authority, it must necessarily be done by means of somo record or authentic writing. And as no official paper ever originates in or emanates from the department or the general land office, of which there is not a recorded copy preserved, it follows that every official act of the secretary or commissioner is susceptible of proof by! means of exemplified copies from the records and files of the department, unless the same have been destroyed.
    III. If it be admitted that a record or authentic writing is necessary to give validity to an official act of the secretary of the-treasury, it will hardly be denied that the act must be proved by the record or writing, or an exemplified copy, unless it be shown that the same has been destroyed. To show how easy it would be fertile defendant to prove his case, if the lands had been selected as claimed, see the book relating to public lands, printed by Gales & Seaton in 1838, vol. 2, p. 395. Doe v. Campbell et al., 17 Ohio, 280.
    IT. But the defendant presents simply an obsolete tract-book, found among the books and papers transferred from Marietta toChillicothe, in which the lots in question, with five other adjoining 'lots, are marked “ school,” “ do,” and “ school land.” Even in this-tract-book there is nothing indicating that these lots are school lands for township nine, range eleven, in preference to any other township.
    *V. "Where a record has been lost, and is ancient, its existence and contents may sometimes be presumed; and whether ancient or recent, after proof of the loss, its contents may be proved, like-other documents, by secondary evidence. 1 Greenl. Ev., sec. 509. But in this case the records and files which should contain the evidence of the secretary’s acts, if he ever acted at all in the premises, have not been lost or destroyed; they are all in existence, and accessible to the defendant, and there is no room for any presumption as to what they do or do not contain. Are not plaintiff’s counsel, therefore,-justified in assuming (what they very well know), that said records and files not only do not contain any evidence showing-that the lands in controversy were ever selected as school lands for township 9, range 11, but that they actually prove the negative, so far as a negative is susceptible of proof? The lists of selections made for the Marietta district, under the act of 1826, are all complete in the general land office, and neither said township 9, range 11, nor-the lands in controversy, are in any way mentioned in any of them.
    TI. The dictum in Campbell v. Doe, 13 How. 249, that the secretary may perform, this act of selection “through the commissioner of the general land office, who may well be presumed to act under his authority when the contrary does not appear,” is, of course, based upon the fact that the said commissioner is (or was) the head of a bureau in the treasury department, having in special charge the execution of all laws relating to the public lands, under the immediate supervision of the secretary of the treasury himself. It is going a step further, to hold that the secretary may perform this act (which he is specially required to do) through the register of a district land office, not an officer in his department, and not presumed to act under his authority. It is, however, idle to discuss this, no evidence showing that even the register of the Marietta district ever selected these lands as school lands for said township 9, range 11. It is to be inferred from the entries in the old tract-book that «he register at Marietta, at some ^unknown time, was under the impression that said lots had been selected as school lands for some township, but as to what time, by whom, for what township, or under what act, he supposed they had been so selected, he has left us no means of inferring.
    YII. But if this presumption could be extended to the acts of the register of the district land office, it would still be liable to be rebutted. Campbell v. Doe, before cited. The fact that over since the supposed selection the lands have stood upon the general land office books as subject to sale at private entry, until finally sold and patented, is in opposition to any presumption that the secretary had selected them himself, or authorized their selection, for school purposes.
    YIII. The entries “school,” “do,” and “school lands,” though in ink, only tend to prove the negative proposition, that the lands were not selected as claimed. If they had been so selected and appropriated, the register would, first, in his tract-book and on the township plat, have noted by pencil-mark the lands recommended to be reserved, and, when advised of the approval of such selections, he would have noted “in ink” the fact of the reservation, stating the object thus: In the tract-book — “Reserved for schools, under the act of 20th May, 1826, per letter from the commissioner of the general land office;” on the plat, “school lands.” See sixth rule of circular, August 30, 1832.
    IX. The supposed selection can not be presumed, because, when the act was passed appropriating section 16 for schools, and for many years afterward, the township in question had within its limits original section 16, vacant and undisposed of, and therefore was not entitled to any other school lands. That section 16 may exist for school purposes, although the section lines may never have been run in the township where it lies, is no new construction. It was given in regard to this very township, by the secretary of the treasury, as early as 1805, and an act passed in regard to this land (the donation tract) as early as 1818, shows *that such was the congressional construction. Letter of the secretary, dated July 13,1805, and act of May 18,1818, 3 L. & B. Stat. at Large, 709. The title of township 9, range 11, to original section 16 within its limits, for school purposes, is clear and indisputable, and therefore she can be entitled to no other school lands.
    X. It can not be presumed that the secretary made the supposed selection under the act of May 2,1826, because the quantity is greater by 161 acres and 59 hundredths than the law authorized him to select for that township, even if it be admitted that said township was entitled to have school lands selected under said act. Said lots, numbered 7, 8, 9, 10, 11, 34, and 59, marked “school,” etc., as will be seen by the plat, all lie adjoining each other in a compact fornq and contain 641 acres and 59 hundredths of an acre. It is admitted that said T. 9, R. 11, contains less than three-fourths of an entire township, and consequently, under said act of May 20, 1826, could only have three-fourths of a section, or 480 acres, selected and appropriated as school lands. A public officer will not be presumed to have done more than his duty, exceeding the power vested in him by law.
    XI. The said letter of the secretary shows that the same lands (or substantially the same) embraced in the lots 7, etc., were once selected (in 1805) as school lands, not for township nine, range eleven, but for township five, range ten, which is Waterford township, in Washington county. But the evidence shows that the trustees of said township (Waterford) never accepted said selection, or took possession of the lands. The evidence further shows, that in November, 1819, the secretary selected other lands — the S. W. quar. of sec. 15, and the N. E., S. E., and S. W. quar. of sec. 21, in T. 6, R. 10 (an adjoining township) — as school lands for said T. 5, R. 10; which selection the trustees did accept, and which lands they have held and enjoyed for school purposes ever since. Both parties, therefore, have treated the selection made in 1805 as a nullity, and the *title of the plaintiff can not be defeated by showing an outstanding title.
    XII. (1.) The legal title to the lands in tbe south end of tract C, never passed out of the United States, by virtue of the selection of 1805. Although a selection under the act of March 3, 1803 (compare with act of May 20, 1826), after an acceptance and occupation of the lands by the township authorities, will doubtless vest a perfect equity in the' lands for school purposes, yet the legal title will be governed by general principles. And the general principle applicable to the case, as announced by the Supreme Court of the United States, is this: “ With the exception of a few cases, nothing but a patent passes a perfect and consummate title. One class of cases to be excepted, is where an act of Congress grants land, as is sometimes the ease, in words of present grant.” Wilcox v. Jackson, 13 Pet. 516.
    (2.) The selection of the secretary, under said act of March 3, 1803, is an inchoate proceeding, a new preliminary step toward the execution of the compact, until the other party to the compact in some way signifies acquiescence in the act, and may be rescinded by the secretary at any time before acceptance by the township authorities, especially with their consent. Even under the act of 1826, it has always been supposed that the secretary could withdraw and cancel a selection, and substitute a different one with the consent of the township authorities, at any time before they had signified an acceptance of the first selection.
    (3.) The act of April 30, 1802, provides, that where section 16 “has been sold, granted, or disposed of, other lands equivalent thereto, and most contiguous to the same, shall be granted to the inhabitants of said township for the use of schools.” And the act >of March 3,1803, provides, “ that the sections of land heretofore promised for the use of schools, in lieu of such of the sections number sixteen as have been otherwise disposed of, shall be selected by the secretary of the treasury, out of the unappropriated reserved .sections in the most contiguous townships.” The ^reserved •sections here spoken of are the four sections in the center of each township, reserved by section 3 of the act of May 18, 1796. 1 L. & B. 466. The lands in the south end of said tract C were not in any “reserved section,” and consequently their selection by the secretary of the treasury was clearly contrary to the express letter of the law. This is a good reason why the selection was rescinded, and another selection made. But, even waiving this-point, the fair presumption from the fact of the non-acceptance of these lands by the township authorities, and the selection of other lands in their stead, which both parties have acquiesced in since 1819, would be, that the first selection was found not to have been made in accordance with law, because the lands selected were not “equivalent” in value to section 16, which had been disposed of.
    (4.) The court will not, upon this evidence, make a decision, ignoring the title of T. 5, R. 10, tp school lands held and enjoyed, under the authority of the United States, for more than thirty-three years. For, if there is an outstanding title in the lands here claimed, as school lands for T. 5, R. 10, it follows that said township has no right to the lands she has been so long enjoying as school lands.
    (5.) The letter of the secretary, July 13, 1805, explains how said lands came to be marked “ school,” etc., on the old tract-book at Marietta, and how the trustees of T. 9, R. 11, happened to fall into the mistake of taking possession of them as their' school lands, instead of section 16. .These entries in the tract-book were unquestionably made in consequence of the selection of July 13, 1805, which was afterward 'abandoned. And there can be little dt ubt that the trustees, of T. 9, R. 11, finding the lots marked “ school land” on the tract-book,-very naturally concluded, that they were school lands for the township in which they lie, and took possession of them accordingly.
    *John E. Hanna, for defendant:
    I. The land was not subject to entry at the time it was entered by the plaintiff.
    On April 21, 1792, the -United States granted to the Ohio Company three tracts of land; the first tract of 750,000 acres, in which was reserved section 16 for school purposes, and section 29 for purposes of religion, and lots 8,11, and 26, in each township, for future disposition by Congress; the second tract of 214,285 acres, without any reservations Avhatever. There was then no general act reserving land for school or any other purpose, and it was before the propositions that were afterward made to the convention forming a constitution for Ohio, which was modified and accepted by them from the-United States; so there can be no doubt but what Congress had the power to thus grant the whole, and they intended so to do. Such ■was the understanding of the company. The trustees, finding there was no school land reserved within this tract, appropriated section 16 in each township for school purposes. Alter the proposition made to the convention, which was modified and approved, the United States supplied a section of school land for each of the townships within this tract of 214,285 acres. The third tract consisted1 of 160,000 acres, usually called the donation tract; this conveyance, like the preceding one, did not reserve any school land. But this-tract was conveyed in trust to-the trustees of the Ohio Company, to be by them conveyed in fee as 'a bounty to actual settlers, being males not under eighteen years of age, free of expense, within five years from the passage of the act; and all of that tract that was not conveyed within five years reverted to the United States. See Land Laws, 45, sec. 3. This was to be' conveyed free of expense to males not under eighteen years of age, actual settlers at the time of conveyance, each one hundred acres. At the time of this conveyance by the United States, this land had not been surveyed,, ^and never was surveyed into sections. The conveyance was to be in one hundred acre lots, and so the trustees of the company had it surveyed; and if the whole quantity had been conveyed away, there would not have been any school land within the tract. The United States so understood the matter, and afterward made-provision to supply it to such portions of this tract as did not revert to the United States, as well as for the tract contained in the second section of this act.
    The land in litigation is part of the 100,000-acre tract. By this-act, the whole of the tract was withdrawn from entry, or even from the laws for surveying the public lands, and, therefore, was not subject to the law for surveying the public lands. The tract was surveyed by the company, and therefore was not subject to entry until, so ordered by Congress by some subsequent act.
    This land is not embraced either in the act of May 18, 1796-(Land Laws, 50), or the amendatory act of May 10,1800 (Land Laws, 70). Nor is there, by either of these,-any land reserved for-school purposes. By the provisions of these acts, the whole land was to be surveyed into ranges, townships, and sections; and by the provisions of section 3 of the act of 1796, all the land containing salt springs, and four sections in the center of each township,, was reserved for future disposition by Congress. But neither of these acts applied to the land in controversy.
    Section 7 of the “act to authorize the people of the Northwest: territory to form a constitution, and state government,” etc. (Land Laws, 84), contains propositions by the United States to the convention forming the state constitution, the first of which is that section No. 16 in every township, and where such section has been sold, granted, or disposed of, other land equivalent thereto, and most contiguous to the same, shall be granted to the inhabitants of such township for the use of schools.
    This act applied to land then owned by the United States, and *where section 16 was not disposed of, it was appropriated for the use of schools. But the whole donation tract, including section sixteen, was disposed of at that time. Then follows the act of March 3,1803. Land Laws, 88.
    This act makes appropriations for different parts of the State of •Ohio of school lands. And the fourth proposition is, “ one-thirty-sixth part of all the lands of the United States lying in the State of Ohio to which the Indian title has not been extinguished, which may hereafter be purchased of the Indian tribes by the United 'States, which thirty-sixth part shall consist of the section number sixteen in each township, if the said land shall be surveyed in townships of six miles square, and shall, if the lands be surveyed in .a different manner, be designated by lots.” The third section confers the power upon the secretary of the treasury of selecting a ¡section of land where section sixteen has been disposed of.
    By section 7 of the act passed March 3, 1803 (Land L. 130), ■the reserved sections are ordered to be sold, excepting section sixteen.
    By the act of February 20, 1808 (Land L. 163), “the reserved •sections, except section 16 and the salt spring reservations, are put to sale as other United States lands.” So that, after this period, the secretary was not limited as to the land he was to select to •supply section 16, disposed of.
    Counsel suppose it will be conceded that no United States land was ever subject to entry, or in market, until surveyed by the United States. The donation tract was not so surveyed. The reverted portion was surveyed, and ordered to sale under the act of March 18,1818 (Land L. 296, secs. 1 and 3). This survey was to be made and returned to the general land office and to the Marietta land office. Thus, each return was alike obligatory and evidence; •and there is in evidence in this case a coj>y of the return made to .Marietta land under the hand of the and the land in dispute marked school land. This plat shows that the land was, as-allowed by the last-mentioned act, surveyed *into 100-acre lots, and not sections. If the land had been surveyed into sections. it is admitted that section sixteen would have been the school land for township nine, in range eleven, being the township in which this land lies, unless such section had been, by the trustees of the Ohio Company, disposed of to an actual settler; and that no patent or other evidence of title was necessary to pass the title; — the survey would have been sufficient. But the survey did not designate any such section, consequently did not point out the school land; and the law under which the land was surveyed and ordered to sale, reserved the proper proportion for schools (one thirty-sixth part) for township nine; and it is not pretended that any other land was ever appropriated for township nine but tiiis tract.
    The land was never surveyed into sections, hut into lots, and the lots composing what might have been section 16 have all been sold by the United States, and patented, and individuals have improved, and used them for years. If we disturb -this arrangement of the government, the present owner of the land would have to surrender it to the township, getting his purchase money back, but nothing for his improvements, while the plaintiff’s lessors would get this school land, with all the improvements, for the price of wild lands.
    It is argued for the plaintiff, that the “lands in the south end of tract C were not in any reserved section, and consequently, their-selection was clearly contrary to the express letter of the law. It has already been shown that what plaintiff’s counsel calls there-served sections, and from which alone the secretary could make-selections, were, by the acts of 1805 and 1808, put to sale as other public lands, and therefore he was not limited, after that time, to make selections from those sections. But the act of 1818 did not require the reservation in any particular part of the reverted land, or that a particular section should be reserved, but it only reserved from sale the proper proportion for school land. The act itself is silent as to who was to make the selection *but the proportion was to be reserved from sale, and the sale was made, each tract being required to be first offered separately at public auction. Is it a very forced presumption to say, that the selection or designation was-made by the proper officer, when the land could not have been offered for sale without the school land having been designated, because it would not do to have offered, and when all was sold but the-proper proportion for school, and then that to be the school land? 'The township was entitled to have not only the quantity, but also a chance at least of an equal quality, and it was to be in adjoining-lots. But even if the township was to take the last section not sold, we have shown that the whole of tract C was sold by the government many years before the plaintiff’s lessors entered the land in ■dispute, and that the township was in possession of this tract of land, as its school land, when the entry was made.
    If this land had been surveyed into sections, and section 16 had been found in the reverted land, the survey and desig-nation of the section would have passed the title. But when surveyed into lots, the designation had to be made. The act is silent as to who was to make the designation, and no part of the land could be offered for .sale until the school land was designated. See proclamation of the President, dated March 20,1819, ordering this reverted land to sale, and reserving from sale “ such lands as have been or may be reserved by law for the use of schools and other purposes.” Who was to make the designation, and from what part of the tract ? Tho law did not make it. We find it designated in the proper office, where offered for sale, on the plat of the surveyor, on the tract-book in the register’s office, and in the handwriting of the register. There is no pretense that any other or different selection was ever made ■of school land for the township in question. Is it a violent presumption to suppose that this selection, so evidenced, was by the proper officer ?
    The transcript from the general land office shows, that “ an equal portion of tract C, lying in township 9, range 11, *within the said donation tract, and to be laid on the south end of the same,” was selected, for school land, for township 5, and range 10, by the ■secretary of the treasury, July 13,1805. But it appears that, afterward, another selection was made for that township. If this selection was proper, and the secretary had authority to select, his act ■of selecting vested the title in the State of Ohio, and would have required an act of the legislature to have divested it. No such act is pretended to have ever passed that body, and, without such, the secretary could not have, set aside a selection made by him; and this is perfectly fatal to the plaintiff’s case, whether the defendant has a title or not; for the plaintiff must, have a good title in order to recover; and if we show a title out of him, he fails. But we rather think that the secretary could not at that time have made tbe selection, as this land has not been surveyed; and hence the designation that appears upon the plat and tract-book, was made by lots, therefore after the survey, and made under the act of 1818, and not at the time of the designation, made in 1805, by the secretary. There hud been no act of the United States setting up claim to this land, after the grant to Putnam and others; and we take that to be the reason why the secretary afterward had a different selection made for township 5, in range 10.
    This second designation was made by the secretary on the 17th day of November, 1819, after the survey of the reverted land, and finding no section 16 in township 9, and no school land for that township, but the lots marked on the plat and tract-book, and they so marked for the township in which they were. Now if this land was not subject to entry at the time it was entered by the lessee of the plaintiff, the plaintiff must fail, for his title is bad; the patent is void. The Trustees of Township One v. John Campbell, 17 Ohio, 267; 13 How. 244; Wilcox v. Jackson, 13 Pet. 512.
    II. But there is another view of this case. Dane was in the actual occupancy of the lot in question when the entry was made. *The land was entered by laying on it a military warrant, issued under the act of September 28,1850. Section 3 of that act provides, “ that no land warrant issued under the provisions of this act shall be laid upon any land of the United States, to which there shall be a pre-emption right, or upon which there shall be an actual settlement and cultivation, except with the consent of such settler, to be satisfactorily proven to the proper land officer.” Brush v. Ware et al., 15 Pet. 108. A patent appropriates the land called for, and is conclusive against rights subsequently acquired. But where an equitable right, existing before the date of the patent, whether by first entry or otherwise, is asserted, it may be examined.
    III. If there was no school land reserved for this township till the act of 1826, certainly that act, which was to supply all deficiencies, made provision for it. This land might have been so selected. Is it a forced presumption to say that it was so selected? See circular of Graham, com. of gen. land office, May 24, 1826, Pub. Doc., part 2, p. 395. This circular must have come to the register of the Marietta land office, and if no selection had been made before that time for township 9, a selection must have been made. See also circular from the general land office, dated August 30,1832, Pub. Doc., part 2, p. 468.
    
      We find that the tract-book of the Marietta land office is substantially marked as required, and that marking in that hand-writing of Wood, the then register of that land office; and that, about that time, the trustees of that township took charge of that land, and have been in possession of it ever since. And we learn further, that when the books and the papers of the Marietta land office were transferred to the Chillieothe land office, they wore so marked; and that as the tract-book was much used and somewhat dirty, that in 184-, the register clerk of the Chillieothe land office had it transcribed, and that his clerk, through mistake, omitted to trancribe the marking upon it “school,” etc. Now, this mistake of the clerk should not prejudice defendant’s rights, *or the rights of the townshijo, and if even the marking was not in the precise words of the circular, that can make no difference. The intention of the marking was to show that the land was not subject to entry. And perhaps, if it had been selected for a different townshijD than the one in which it lay, then something should have been shown, so as to let it be known for what township it was intended.
    But this marking is at least prima fade evidence of an appropriation of the land for school purposes, and the fair presumption would be, that it was for the township in which it lay — what would have been and certainly was the case of individuals, when they went to the Marietta land office to enter land, and on an inspection of the tract-book in reference to this land, finding it thus marked. Can there be any doubt but they understood that to be school land for that township ?
    1Y. See letter of Mr. Gallatin, July 13,1805, Pub. Doc., part 2, p. 260. This shows that tract C was not surveyed, or the lots would have been designated by numbers.
    Y. The secretary had the power of selecting, and his act alone appropriated the land and passed the title. No patents or certificates of entry or appropriation ever issued, but the mere designation in the books of the land office passed the title, and the register was advised thereof, and his tract-book marked, so that the land would not be sold. And counsel for plaintiff are mistaken in supposing that tho marking on the return made by the surveyor, and on the tract-book, were made in consequence of this designation by the secretary in 1805, for the reason before given, this land was not surveyed at the time. If the designation had been made before the survey, the surveyor would not have divided the portion selected into one hundred acre lots, but would have run off six hundred' and forty acres in one body, being that portion for township 5 but he surveyed the whole land into lots, and then, as by the act of 1818, he made the selection of school land for that township, as by the act he was ^required to do, and hence the designations on his survey as returned to Marietta, and on the tract-book in that land office in the 'handwriting of the register of that office, and by so marking, the land was not only withdrawn from entry, but the legal title passed, and this is the only way the legal title has ever passed from the United States for any of the school land.
    
      Anus Nye, on the same side:
    I. The real defendant is township 9, range 11, within the donation tract. As that tract was .not, at any time, actually surveyed into sections, the township, though entitled thereto, under the acts of Congress of 1802-3, and the intent of the contract, etc., under which the Ohio Company purchased, never acquired or received section 16, reserved for schools, or any school section, as such.
    II. The township, then, was entitled to school land (in “proper proportion,” at least), when the act of March, 1818, was passed, providing for a survey of the ungranted,-undonated residuum of the-donation tract, not before surveyed or brought into market, and consisting of several detached, separate, and irregular parts or parcels, in different parts of the whole tract. This residuum could not be surveyed into sections in the legal statutory sense, for the reasons here stated, and apparent.
    III. The township, by its tenants, or those holding under it, in its right, has been in actual possession of the land now in controversy, for more than twenty years, claiming it as school land. It had a right to this land when the plaintiff’s lessors attempted to acquire a title to it by entry. If this was reserved school land, when that attempt was made, they acquired no title to this particular land, whatever may be their rights elsewhere.
    IT. This action is in the nature of a writ of entry; and therein the plaintiff must show to the court by strict, peremptory, necessary law, such a right and title as shall require the court, in the application of such law, to send its administrative officers to put defendant out, as a wrong-doer.
    *V. If, upon a view of the whole history of the case (for history is incidentally concerned here), of the facts and the law, the ■question whether the lessors of the plaintiff show an absolute, overruling right to the land, shall even appear to be balanced, in doubt, ■or equipoised, the scale must then turn against the (real) plaintiffs and hence in favor of the defendants. 1. Because the plaintiff will have failed to make out a complete, olear, and perfect title as against defendant; and 2. That under the facts, the circumstances and law of the case — as they are now here, the presumptions — applicable and presenfin the case, are, and should beheld to be, altogether in favor of the defense.
    VI. But the scale of the defendant does decidedly preponderate:
    (1.) The act of 1818 provided that this residuum of the donation tract should be surveyed into sections or 100-acre lots (as the grants by the trustees had been), at the discretion of the surveyor-general, by whom or under whose direction the survey was to be made. The surveyor adopted the plan of surveying into 100-acre lots. The legal condition of this residuum was peculiar; and the mode of dealing with it, and of acquiring titles in it, and the questions arising under the laws respecting it, must be ascertained and adjudged by this particular law, so far as it applies.
    (2.) Section 3 of that act reserves from sale “ the px-oper proportion ■o'f school land,” but it does not (like the act of 1826, providing for fractional sux-veyed townships, which hapxpened, from being fractional, to have no section 16 within them), provide who should designate this “ proper propoi’tion ” of the land to be surveyed under its provisions. The secretary of the treasury is not named, as the government officer who was to designate, max-k, and indicate these reserves: it can not be assumed, therefore, that he was to do it. The quantity, shape of parcels, positions, etc., were to be ascertained by ■an actual survey, not theretofore or then made, by or under the authority of the *surveyor-general. The inference, in the -absence of any other express direction, or named officer, is, that he •was to see, or take order, that these reservations — not, necessarily, appropriations — should be made when the surveys were made; -since the quantity of lands, etc., were, till then, uxxcertain. The •country, about these residuary parcels, was -then actually settled; our people were there; the range and township lines had been run, but not any sectional, or other subdivisioxxal lines — except those of the 100-acre donation lots — which, the trustees had surveyed and granted to actual' settlers ; these inhabitants, in their townships, were as much entitled to school lands as those of other parts of the Ohio Company’s purchase, or of the state; Congress, by the act under consideration, intended and provided, that such land should be secured to them; and, if the quantity reserved and designated, within any township, was, or is, more than it would be entitled to, by prior acts of the government, that is a question solely between the township and the government, and is not one that can properly be made here for decision, by the locators of warrants under the bounty act of 1850, which act, too, in explicit and peremptory terms, has prohibited the location of any warrant, issued under it as a bounty, upon any land upon which there was, at the time, an actual occupant, or to which there was a pre-emption right, as was the case here, of occupancy: the actual occupant, or the land which he so occupied, was, by the act, shielded by the power of the government, and thereby protected from the attempts of holders of such warrants, to speculate upon him or it; by what right he occupied, in fact, was not left, by Congress, an open question, or one to be raised, or put, by the mere holder of a bounty warrant, or any other person, coming merely to acquire title by purchase under the general laws for sales.
    YII. The plats and returns of these surveys were to be made and returned to the register of the land office, at Marietta, and to the general land office. It was to be presumed that the ^surveyor-general, the surveyors under him, and the register of the land office would do their duty, as well in fulfilling the matter of making the surveys, etc., as in respect to the expressed intention of Congress to ‘reserve” the “ proper proportion for schools,” since no other officer was named, required, or authorized, by the act, to make and designate such reservations.
    VIII. The transcript by Judge Wood, register at Marietta, of the plat and survey, in his office, of the tract in which the disputed land lies, designated the lots in question as “ school land;” the original tract-book of the office does the same. These lands or lots have been claimed by the township, and occupied by their tenants, for more than twenty years, as their, or its school land, and lie, too, in that township, whilst other lots in the same survey have been, and are marked as “ sold." How, then, came the lots in question to be marked on the plat, and designated on the tract-book, as “ school land,” and to remain for thirty or thirty-five years unsold ? Is it no^ in the absence of any other direct and satisfactory evidence to the contrary, to be inferred, or presumed, to have been done by the authority and directions of the surveyor-general, directly or indirectly, and thus made to appear in the office of the register of the-land district ? Being so, the plaintiffs here acquired no title to the-land in controversy; it was not the subject of sale, entry, or location.
    IX. But further: It is to be presumed that these officers of the-government — the surveyor-general, register, and any other officer, or subordinate, who had a duty to perform, under this act of 1818— did their duty; on the other hand, it is not to be presumed that they violated their duty — by marking and designating these lots of the-survey as “ school land,” upon the plat and tract-book; for the plat, in evidence is in the hand of Judge Wood, the register — so must have been the tract-book, in which they were, in like manner, designated. Nor is it to be assumed, that any other person than the proper officers surreptitiously, *or fraudulently, so marked' these lots; still less that these officers committed a fraud in what it appears they did.
    X. As there has been no prior survey of this land into lots, before its division under the act of 1818 into 100-acre lots and fractions, this marking and designating of the 100-acre lots and a fractional lot, in question, must have been after and under the provisions of that act. This could not have been by the secretary of the treasury in 1805, as is assumed, without proof, on the other side; there were then, and had been, no 100-acre lots to mark and designate. Therefore, these designations could not have been mad© then, or for the purpose assumed. But even if this designation were-made afterward (which is not conceded), under the direction of the-secretary, it withdrew the land from sale and entry, or location, till some further action of the government or its officers should give it a specific appropriation or use.
    To find section 16, by extending or protracting lines upon paper, might make a section thereon, but would not be, or bound, a section-surveyed and marked — which, only is a section of land — but the mere ideal of it.
    XI. Defendant is entitled, however, to the benefit of the presumption in his favor, under the act of May, 1826.
    XII. But the plaintiff’s lessor acquired no title to this land :
    1. It is not the patent that passes the title to the land from the-government to the purchaser of government lands; it is the law, and acts done in conformity to it — under which the sale, etc., is as~ •sumed to be made — that transfers, or passes the title, from the government to the grantee. The government has the dominion and ■direction of its lands. It prescribes the terms, conditions, and restrictions by and subject to which, only, can pidvate rights and titles to public lands be acquired. If a sale, or the acts of the officer •and purchaser, is or are not authorized by the law relating to the .land sought, or conformable to it, no title passes. See Wilson v. Mason, 1 Cr. 45; 1 Peters Cond. 342; Wilcox v. Jackson, 13 Peters, 498; Campbell et al. v. Lessee of T. 1, R. 19, 13 Howard, 244. *A patent, then, issued upon an alleged sale or entry, not made in conformity to the law directing or authorizing or restricting a sale, is void;, and any person in possession of the land, claiming title, may impeach it. See Brush v. Ware, 15 Peters, 108. The •officers make the sale; the issuing of a patent upon it is merely a ministerial act, evidencing a (previous) sale, if duly made; and if not so made, the title does not pass. Any other doctrine would be •contrary to policy and principle, and would be a direct encouragement to fraud and trickery, both upon the government and those who are protected in their actual possession by its acts; or it would ■ enable the land officers to make false titles, and thereby impose on ■the government, and the subjects of its special and declared protection, by law; -it would be to pass a title to public lands, not by law, but in contravention of it, and put the government to the necessity of judicial or legislative proceedings to set aside an act done by its own officers, under pretense of law, but -against the law. That a party, having a prior equity, may have such an assumed or apparent title examined and impeached, has, at least, been decided. ■See the case last cited, 15 Pet.
    2. The proviso of the bounty act of 1850 (sec. 3) protected the land from location. The occupant’s seat upon the land could not ■be taken from him but by his own consent, to be judicially proved before the register, “to his satisfaction!’ In any other case, ordinarily the government officer, in passing an entry, acts ministerially (see case cited, 15 Pet.); and even where an affidavit is produced, he does so — for he merely then looks at the purport of it, •and the formal verification, and does not, and can not, in pre-emption cases, judge of its verity. Wilcox v. Jackson, 13 Pet. 398; Bush v. Ware, 15 Pet. 108. Here, however, there was not even an attempt to comply with the proviso — nothing was done in this respect, either judicially or ministerially. Therefore, no presumption or effect can be assumed for the locators.
    
      *C. B. Tompkins, replying for plaintiff:
    I. The plat of tract C, referred' to by the secretary of the treasury in his letter of July 13, 1805, must be examined in connection with, that letter before it can be clearly understood. This letter says: “ By an inspection of the plat ” (that is, of tract C), “ it will be seen that in the 100,000-acre tract there were only four entire sections and four fractional sections No. 16, one of which last, being-included in tract C, was not ceded by the Ohio Company, and remains undisposed of.” This fractional section No. 16, being included in tract C, and tract C being wholly in fractional township 9, range 11, it, of course, is the school land for this township, and can be pointed out now just as easily as if the township was laid1 out into sections. Lay off this township into sections, and 16 will be found in the northwest corner of tract C, marked with a star on. the plat of the 100,000-acre tract now in evidence.
    Whether this land was ever surveyed into sections or not, is immaterial to this investigation. The secretary treats it as though it had been surveyed. He speaks of sections and fractional sections, their number, etc. From this, we might properly infer that the land was then surveyed into sections and numbered. The secretary says: “In lieu of the seven sections or fractional sections No. 16-contained in said tract, I have selected the following, viz.” Then follow the selections made for eight whole townships; but none is made for township 9, range 11. The reason why there was no selection made for this township, while selections were made for one-immediately south and another immediately east of it, was that it had within its iimits a section 16, which, by the law of Congress,, was the school land for this township.
    II. The letter of the secretary, while it proves that there was a-section 16 within tract C, and that tract C is wholly within this-township, also proves that the land in dispute is not a part of said' section 16, because the secretary then attempted to select this land for township 5, range 10. But there is no pretense that township 5, range *10 has any title to this land now. It never took possession, and never concurred in the selection; and the secretary had no power to make it. Act of March 3, 1803, Public Lands, Instructions and Opinions, part 1, 90. The secretary had in case 16 had been otherwise disposed of, to select out of the unappropriated reserved sections in the most contiguous townships; and to- these he was limited. If any title, however, did pass by the selection, it reverted to the government when the subsequent selection was made, in 1819.
    III. The presumption insisted upon by the defendant, as arising under the act of 1818, can not be sustained.
    At the time of the enactment of this law, all' the disposable land in this township was that contained in tract C, and amounted to 2,941 acres, excejit the usual school proportion, and it would be 1-36 part of 2.,941 acres; which is a little more than 81 acres. This is all that could be claimed by force of this law.
    IY. Before the defendant can claim any benefit from the act of May 20,1826, he must bring himself within its provisions, by show^ ing that this township had a right to select land, in pursuance of this act; and then, that the legal steps had been taken to make the selection. That is, he must prove that there was no section No. 16 within this township, or, if there was one, it had been legally disposed of prior to that time. But, if I am wrong in saying that this township had school land within its limits, and school land had to be selected, in pursuance of the provisions of that act, certain legal stej>s had to be taken before any title could vest in the township ; and if those legal steps had never been taken, this township must remain without any school land.
    The act of May 20, 1826, authorized the .secretary of the treasury to make the selection. By the instructions of the commissioner of the general land office (page 467, part 2, “ Public Lands, Instructions and Opinions”), the school committees, trustees, or other authorities having official cognizance over the school lands, were permitted to recommend selections; and if *they should fail to do so, then it was made the duty of the register to report selections.
    The register was directed, when he had reported any selections, to be careful and note by pencil-mark in his tract-book, and on the plat of the township, lands recommended to be reserved, and withhold them from sale.
    Let me inquire, what had to be noted, in pencil-mark, on the tract-book? What words did he have to make with his pencil? He had to write on the tract-book, with his pencil, “ Recommended to be reserved for school land, under the act of May 20,1826.” This is what his instructions and his duty required him to do; and if ever any selection or recommendation of this land was made, he did note this in pencil-mark, for the learned counsel say, the “ law presumes a public officer will do his duty.” This he was to write in his tract-book, and on the plat of the township; and when advised of the approval, by the secretary of the treasury, he was then to write in ink on the tract-book, “ Reserved for schools, under the act of May 20, 1826,” as per letter of-, from the commissioner of the general land office; and on the plat, say “school land.” These things had to be done before the title vested in the township.' The register at Marietta had to make • the selection, and report to the secretary of the treasury. He had either to approve or reject, and to advise the register at Marietta. When this was done, tho land vested in the township, for the use of schools, and not till then. The man that claims title under this act must show that these steps have been taken, and show it by competent evidence.
    The ink-mark of “ school ” on the tract-book, by the former register, is no evidence that this land was ever selected as school land. No regulation of any department authorized any such writing in the tract-book.
    In addition to the duties already stated, the register was required to retain a copy.of his report recommending lands for selection-But no such copy appears.
    *V. If this land had been selected by the secretary of the treasury, there would certainly be a record in his department of this selection. It can not be that, in regard to this particular selection, all the officers having anything to do with it wholly and entirely failed to do their duty. Counsel for defendant say, with emphasis, “ the law presumes that public officers will do their duty.” But there is no record of any selection of this land to be found in the treasury department.
    VI. The testimony as to the mark in question is entirely incompetent. To admit it to a jury, would be a violation of tho rule which requires the best evidence the nature of the case will admit of. The best evidence of selection would be a copy of the record in the treasury department; the next best, would b,e the further entries on the books in the land office formerly kept at Marietta, but now at Chillicothe. This would be legal testimony to prove title in the defendant. But if ho can not produce it, he must account for its non-production, by showing that such evidence was once in existence, but has been lost or, destroyed. But there is no attempt at -of this kind. No one protends that there over was any other record of the selection than what is now to bo found.
    YII. If it bo claimed that this land was selected prior to the in-' structions requiring those particular forms to be adopted, nevertheless there must have been a record, or some authentic writing, of the selection, somewhere. It can not bo protended that, because this ■selection was made before the register received instructions from.' the secretary of the treasury as to the particular stops to be taken, therefore the land could be selected, and no record or entry made, ■.in any department of the government, of the fact. ' •
    YIII. There is no difficulty in accounting for these marks on the tract-book. They were, no doubt, made when the letter of July, 1805, was received. They were made in ink, and there they re■mainod until 1819, when other land was selected for township *5, range 10. If these marks were so made, they are no evidence of title in the defendant; and it has already boon shown ■that, by that selection, no title to this land vested in township 5, range 10. At the time other land was selected for the latter town.ship, the register may, perhaps, have forgotten these marks on the tract-book, and they were suffered to remain. During this time, 'this land, no doubt, was called school land; and when the inhabit.ants of township 9, range 11, began to look about them for school land for this township (this being called school land), they, of course, supposed it was the school land for this township, and took possession of it under this impression, and so have occupied it ever ■since.
    There are other circumstances, which strongly sustain this position. It will be seen by an inspection of the plat of tract C, which, is now in evidence, that lot No. 34 is almost entirely disconnected with the remainder, of this land. Now, why was this lot 34 taken instead of lot 11 ? Eor no other reason than that the secretary of the treasury, in his letter of July 13, 1805, directed that the south end of tract C should be taken for school land, for township 5, range 10 ; and, if lot No. 34 had not been taken, the whole of the south ■end of tract C would not have been taken. The court will also bear in mind, that in 1805 this land was not laid off into lots, as it now is; and hence, the secretary could not describe the quantity by lots, and the only convenient mode of describing this land, was to describe it as the south end of tract C. It is not probable that if the; register of the land office, or any other officer, selected school land out; of tract C, after it was surveyed into lots, that he would have taken it all in one body.
    IX. But again, without lot No. 34, there is more land than township 9, range 11, is entitled to. This township, being less than throe-fourths of a township, is only entitled to three-quarters of a section. The township is now claiming C41 acres. Those circumstances-strongly fortify the position I take; and most clearly demonstrate-that this land was not selected under the act of May 20, 1826.
    *But there is yet another very important difficulty in the way of the defendant. This township, being a fractional one, is only entitled to three-quarters of a section, but has selected more than a section. Is not the selection void ? It is a power given by statute, and must it not be strictly pursued ? The power must be exercised within the limits granted. This township never can have any legal right to more than 480 acres of this land. Then, which four hundred and eighty acres is it that the township is to have? It can not be pointed out; the boundary can never be ascertained. A deed, under such circumstances, would be void for uncei'tainly; and is the title, by which the defendant holds, any better ? Can anybody show the difference ? There has been a defect in the execution of this power. Is there any legal remedy ? I say there is not When a power is given, if, in the attempt to exercise it, the power is exceeded, is not the act void?
    Township 9, range 11, can not pretend to claim but four hundred and eighty acres of this land. Which four hundred and eighty will it claim? What tenants, now in occupancy, will it defend and sustain in the possession, and what ones will it suffer to be turned out?
    The title is just as good to one part as it is to all the rest, and no better. It is no title to any. In the attempt to grasp too much, it has lost the whole.
    
      C. B. Goddard (confining himself to the question of the validity of the plaintiff’s patent) submitted the following:
    The land in dispute was entered by Samuel A. H. Marks, and the patent issued to him. It appears in evidence, and is recited in the patent, that the land was paid for as follows: one-fifth in money,, and four-fifths in a warrant issued to Marks, for services in the Florida war, under the act of September 28, 1850.
    This is a mere question between the government and the purchaser of the land as to the mode of payment. So far as regards this question, the land was subject to entry. Had it all been paid, in money, no such question could have arisen.
    *It is of no consequence to the party in possession of the land how it is paid for. The government requires gold and silver. If the payment had been made in bank-notes, could the party in possession have objected? Can he object if payment is made partially with a land warrant ? But further. Payment' with a warrant was lawful, if made with the consent of the settler, “ to be satisfactorily proven to the proper land officer.” Can any inquiry be-made, after the entry and the issue of the patent, and especially after a conveyance by the patentee, to third persons, as to the manner in which the land officer was satisfied of the settler’s consent?' One would think that the patent excluded all such inquiries.
    The authorities cited by Mr. Nye do not sustain him.
    Wilson v. Mason, 1 Cranch, 45, was a ease of cross caveats. No-patent had issued to either party. Each claimed the right of location, and the validity of their respective claims was the subject of the controversy.
    Wilcox v. Jackson, 13 Peters, 498, was the Chicago case. The-plaintiff in the ejectment claimed a pre-emption right; the defendant was .the commanding officer of a military post under the authority of the United States. There is nothing in the judgment of the court, or the language of the judge who 'pronounced that judgment, which favors this position of the present defendant. It-was held that the land was reserved from sale. It could neither be entered, nor claimed by pre-emption. The dispute was not whether it could be paid for in a particular mode, but, could the land officers-of the United States sell it at all. The case is a good authority to-prove one point for the defendant here, if that point had not been from the beginning conceded by us, namely, that if it appear that the land now in question was not subject to entry at all, our patent, is void.
    To this point also is the case of Campbell v. Lessee of Township 1, Range 19, 13 Howard’s U. S. 244; S. C., 17 Ohio, 267.
    Brush v. Ware, 15 Peters, 108, may be dismissed, with the single-remark that the case was in equity.
    *So much for all the cases cited in Mr. Nye’s argument. He might have gone further and cited Stoddard v. Chambers, 2 Howard, 234, and Mills v. Stoddard, 8 Howard, 345. The land was reserved from sale, and the patent held void.
    
      In opposition to the doctrine asserted by the counsel, and which his cases do not sustain, I cite Bagnell v. Broderick, 13 Peters, 436, -which fully sustains the view we take.
   Thurman, C. J.

In Ward’s Lessee v. Barrows, 2 Ohio St. 246, this court, speaking of official acts, said: “ The law will presume all to have been rightly done, unless the circumstances of the case •overturn this presumption, and, consequently, as stated by the Supreme Court of the United States, in Bank of the U. S. v. Dandridge, 12 Wheat. 70, acts done which presupposes the existence of other acts to make them legally operative, are presumptive proof of the latter.”

And, again: Facts presumed are as effectually established as facts proved, where no presumption is allowed; and hence, in ae- • cordance with this long-established rule of evidence, the court, in Lessee of Winder v. Sterling, 7 Ohio (pt. 2), 190, were entirely justified in saying that the act of the auditor in allowing the credit, .•and making the certificate, which could only be lawfully done after the delinquent list had been verified by the collector, was presumptive proof that the oath had been administered.”

Apply these principles to the facts of this case. “ The lands in controversy lie in township 9, range 11 — civilly, Windsor township, Morgan county — and are a part of that portion of the “ donation tract” which reverted to the United States. As early as 1834, more than sixteen years before the inception of the plaintiff’s title, they were taken possession of by that township, claiming them as its school lands, and have been thus possessed ever since. At the time this possession was taken, they stood designated on the proper book and map in the land office at Marietta, as school lands, and they have ever since remained *so designated. For the omission, accidental no doubt, of this designation in the new tract-book made in 1840, after a change of registers and the removal of the land -office to Chillicothe, can not affect the subsisting designation to which I have referred. In addition to these facts, it is admitted that if these lands were not selected as the school lands of Windsor township, then no selection for that township has ever been made. And it is also to be observed, that they have never been claimed as •school lands by any other township ; nor is there any evidence that .■any other township is without its school lands.

Now it does seem to us, that these facts warrant a presumption, that these lands were properly selected as the school lands of Windsor township. We can not assent to the argument of plaintiff’s-counsel, that it was incumbent on the defendant to show an authenticated copy of the act of selection of the secretary of the treasury. The records and files of the register’s office, coupled with the facts to which I have alluded, made a prima facie case for the-defendant, and threw upon the plaintiff the burden of showing that no selection had been made. If the records at Washington contained no evidence of any such selection, it was for the plaintiff, under the-circumstances, to prove that fact; and although it might not have been conclusive of the controversy, its proper weight would no doubt have been given to it.

It is argued, however, that the presumption of a selection was ■ rebutted by facts that were in proof, and by others of which the court was bound, ex officio, to take notice.

1. “It can not be presumed,” it is said, “that these lands were-selected as school lands for said township 9, range 11, because at the time of the passing of the act appropriating section 16 for the support of schools, and for many years afterward, said township had within its limits original section 16, vacant and undisposed of, and therefore was not entitled to any other school lands.”

The law here referred to, is the act of Congress of April 30, *1802, “to enable the people of the eastern division of the territory northwest of the river Ohio, to form a constitution and state government, and for the admission of such state into the "Union,” etc. 2 Stat. at Large, 173 ; 1 Chase, 72. By this act, certain propositions were made to the constitutional convention, to,.be holden pursuant to the act, which, if accepted by it, were to be binding on the United States. Among these was the following: “ That the section, No. 16, in every township, and where such section has been sold, granted, or disposed of, other lands equivalent thereto, and most contiguous to the same, shall be granted to the inhabitants of such township, for the use of schools.” The convention agreed to accept the propositions, provided certain additions and 'modifications were made by Congress; to which Congress assented by the act of March 3, 1803. 1 Chase, 72-74; 2 Stat. at Large, 225.

But it is not clear that it was designed by this legislation, or compact, to appropriate section 16. specifically, within the bounds of the- •“ donation tract;” for there was no such section within it, nor was it probable there ever would be. That tract had never been surveyed, or otherwise laid out, into sections, nor was there any reason to suppose that it, or any part of it, would be. It had been granted to the trustees of the Ohio Company, pursuant to the act of Congress of April 21, 1792 (1 Stat. at Large, 258; Swan’s Land Laws, 21), for the purpose of being “ conveyed in fee simple, as a bounty, and free of expense, in tracts of one hundred acres, to each male person, not less than eighteen years of age, being an actual settler ^t the •time of such conveyance;” with a proviso, that such part thereof as should not be thus conveyed by the company, within five years from the passing of the act, should revert to the United States. Pursuant to this grant, numerous conveyances of hundred-acre lots were made by the company ; and what part, if any, of the tract remained unconveyed, and had thereby reverted to the United States, was probably wholly unknown to both Congress and the convention in 1802. Now, it *may well be that, under the acts of 1802 and 1803, it was not necessary that a survey, even into townships, should have been made, in order that the title to section 18 should vest in the state; but it does not follow that, in á tract that was not designed to be surveyed into sections, it was intended to .grant to the state what would have been section 16 had the tract been so surveyed.

And when we remember that the whole tract had been granted :by the government to the Ohio Company, and that how much of it had reverted was unascertained, it seems most likely that it was considered as falling within the denomination of “ lands granted or disposed of,” referred to in the act of 1802, and that therefore not ■sections 16, but, in the language of the act, “other lands equivalent thereto,” were intended as the school lands of this tract. And such, I may remark, seems to have been the understanding of Con.gress, when passing the act of March 18, 1818 (3 Stat. at Largo, 409; Swan’s L. L. 24), providing for the sale of the reverted portion of said tract; for, although by that act the right of the state to the usual proportion of school lands is recognized, yet no provision is made for surveying any section 16, but, on the contrary, "the surveyor-general is authorized, in his discretion, to cause the land to be surveyed into hundred-acre lots; a division wholly inconsistent with the existence of a section 16.

Much reliance, however, is placed by plaintiff’s counsel on section 3 of the act of Congress of May 10, 1800 (2 Stat. Large, 73), which required, it is said, a subdivision of the donation tract into sections. But this is a great mistake. That act, as will be seen by its provisions, and especially by its first section, required such lands only to be surveyed, or subdivided, as the previous act of May 18, 1796 (1 Stat. at Large, 464), directed to be sold. Now, certainly, no portion of the donation tract was directed to be sold by the act of 1796, for when that act was passed, no portion of the tract had reverted to the United States, nor could it be known that there would be any reverter. Besides, ^section 2 excludes lands previously patented, and therefore excludes the “donation tract.”

But whether the act of 1800 is, or is not, more comprehensive than that of 1796, it is very evident that the lands referred to in section 3 are the same directed to be sold by section 4; and, as it would be unreasonable to suppose that the reverted lands iu the donation tract were thus ordered to be sold without any step being taken to ascertain their site, description, or quantity, the position of counsel, that they were directed to be surveyed, can not be maintained.

2. “It can not be presumed,” it is argued, “that the secretary of the treasury selected the lands marked ‘ school,’ ‘ do,’ and ‘ school lands,’ on said tract-book, as school lands for said township 9, range 11, under said act of May 20, 1826, because the quantity is greater by one hundred and sixty-one acres and fifty-nine hundredths, than the law authorized him to select for that township, even if it be admitted that said township was entitled to have school lands selected under said act. Said lots numbered 7, 8, 9, 10, 11, 34, and 59, marked ‘ school,’ etc., as will be seen by the plat, all lie adjoining each other in a compact form, and contain six hundred and forty-one acres and fifty-nine hundredths of an acre. It is admitted that said township 9, range 11, contains less than three-fourths of an entire township, and consequently, under said act of May 20,1826; could only have three-fourths of a section, or four hundred and. eighty acres, selected and appropriated as school lands.”

To this point it might be replied that, under the circumstances, it would be more reasonable to presume a mistake in the quantity selected, than to believe that no selection at all was made.

But were it admitted that no selection was made under the act of 1826, that would not decide the case, for the selection may have .and probably did take place before the passage of that act. There was ample authority under the acts of 1803 and 1818 to make it,, and no reason is perceived why it may not have been made. It is true, that counsel say that the selections under the *act of’ 1803 were to be made out of the “ reserved sections,” so called, viz., the lour sections at the center of the township; but it is to be remembered that there were no such sections, existing or contemplated, in the “ donation tract; ” that, by subsequent acts of Congress, these “reserved sections ” were directed to be sold; and, finally, that the act of 1818 clearly had no reference to them.

It may be supposed, however, that the argument founded on said, supposed excess of quantity, is as strong against a presumption of a selection before the act of 1826, as of a selection under that act. Hut this is not so. Windsor township is fractional, containing more than one-half, but less than three-fourths of a full township. school lands were selected for it under the act of 1826, in compliance with the terms of that act, and without error, the amount selected would be 480 acres. But under the compact between the general government and the state, the township was entitled to a full section, and no act of Congress prior to that of 1826 had attempted to infringe this right, nor was that act designed to infringe it. Being thus entitled to a full section, if the selection was made before the act of 1826, the evident presumption is that that quantity was selected ; and even if the selection was made under that act, it would not be unreasonable to suppose that the right of the township was respected.

Thattheright existed may bo made quite manifest. The proposition hereinbefore quoted from the act of 1802, and which finally became matter of compact between the general government and the state, was, “thatthe section number sixteen, in every township, and where such section has been sold, granted, or disposed of, other lands equivalent thereto, and most contiguous to the same, shall be granted to the inhabitants of such township, for the use of schools.” Here no distinction whatever is made between entire and fractional townships. “Every township,” fractional or entire, containing a section 16, is entitled to*it, if undisposed of; if disposed of, then to its equivalent. The language is too clear to admit of doubt; but if a doubt could be raised, it would be removed by a reference to the ordinance of May 20, 1785, and July 23, 1787, by the first of which it was ordained that, “ There shall be reserved the lot No. 16 of every township, for the maintenance of public schools within said. township;” and further, that “when any township or fractional part of a township ” shall be sold, the deed to the purchaser shall except and reserve “the lot No. 16, for the maintenance of public schools;” and in the second of which ordinances is the following provision: “The lot No. 16, in each township or fractional part of a-township, to be given perpetually for the purposes contained in the said ordinance,” viz., the above ordinance of 1785. U. S. Land L., Senate Compilation, vol. 1, pp. 13, 14, 24, 25.

These provisions show very clearly the policy of the government from the beginning, and render it quite certain that the comprehensive language of the act of 1802 was designed to embrace fractional as well as entire townships; and that each was to have the section 16 within its bounds, or its equivalent, is further shown by the fact that no attempt at an apportionment was made, as would surely have been done had it been designed to give the fractional townships less than full sections. Had there have been such a design, it would have been carried out by a provision declaring what proportion of a section a fractional township should have. But there is no such provision in any act we have met with, prior to that of 1826, except so far as such a provision may in effect be contained in the grant, by the act of 1803, of “one thirty-sixth part of all the lands of the United States lying in' the State of Ohio to which the Indian title has not been extinguished, which may hereafter be purchased of the Indian tribes by the United States, which thirty-sixth part shall consist of section 16 in each township, if the said land shall be surveyed in townships of six miles square, and *shall,'if the lands be surveyed in a different manner, be designated by lots.” 2 Stat. at Large, 226; 1 Chase 73. Now, taking into consideration the circumstances under which this grant was made, and especially the legislation already referred to, as well as the language employed, it is by no means clear that it was designed by it to give to a fractional township less than a full section, thereby departing from the previous policy of the government— from the policy of the act of 1802, to which the act of 1803 was supplementary — and making a difference between different portions of the country without any reason for so doing. But whether such was or was not the intention, is immaterial in this case; for this grant of the act of 1803 relates only to lands to which the Indian title was not then extinguished, and consequently had no reference to the “ donation tract,” the Indian title to which had long before been acquired. It came under the before-quoted provision of the act of 1802. -

Finally, it is argued by counsel, that the fact of the premises in question being- designated as school lands, on the register’s book and map, is explained by the letter of the secretary of the treasury of July 13, 1805, and that they were so designated in consequence of statements contained in that letter. See United States Land Laws, Senate Compilation, vol. 2, p. 260.

But this seems to us highly improbable. For, first, the letter contains no instructions to the register to make any entry in his books. Secondly, the designation is upon the “tract-book,” which is the book by reference to which sales are made. Of course, a tract-book of the reverted lands in the donation tract must have been made after the survey of those lands into lots, preparatory to their sale. But this survey was made by Francis, in 1818, under the provisions of the act of that year, so that the tract-book in question, or at least so much of it as relates to these reverted lands, had no existence in 1805. It was doubtless made in 1818 or 1819.

Again, the designation on the tract-book is by lots, as surveyed *and numbered by Francis, as above mentioned. This is apparent from a comparison of the book with his field-notes and map. The book was obviously made from the field-notes and map; and it is hardly necessary to repeat that the latter were made in 1818. Thirdly, that the secretary, in 1805, contemplated selecting tho premises in question as school lands for township No. 5, range 10, is apparent from his letter; but that the selection was not finally made is reasonably certain. There is no evidence of it on the plat referred to in his letter; the lands were never claimed by that township; other lands were set off to it in 1819, of which it took and has ever since held possession; no allusion to any such selection is made in the act of 1818; in the survey made by Francis, under the direction of the surveyor-general, no respect was had to it, but, on the contrary, the premises were divided into lots; and, finally, "Windsor township has held the premises ever since 1834, without any question of its right, save that now made by the plaintiff.

Upon the whole, we are of opinion that the motion for a new trial should be overruled, and judgment be entered for the defendant.  