
    The Heirs of Joseph McAfee vs. Garrett Keirn.
    The right of preemption granted to the actual settler by the acts of congress, in 1830 and 1834, although a gratuity, constitutes as valid a right as if it were founded on a valuable consideration ; and creates an equity in favor of the occupant which excludes all other rights, and which could only be lost by a failure to make the entry within the time prescribed by the acts.
    Where an actual settler, claiming a preemption right, has fully complied with the requisitions of the law, and received a patent, his title must be regarded as superior in a court ef equity, to any title acquired by mere entry and a patent on it, although it be older than the patent under the preemption right; the patent relates to the inception of title, and in a court of equity, the person who has first appropriated has the best title.
    A junior patent predicated on a senior preemption right, will overrule a senior patent to the assignees of Jefferson College, which issued in accordance with the provisions of the act of congress in favor of Jefferson College.
    A junior patent predicated on a reservation to a Choctaw Indian, under the treaty of Dancing Rabbit Creek, is a superior title to a senior patent to the assignees of Jefferson College.
    On appeal from the^uperior court of chancery; Hon. Robert H. Buckner, chancellor.
    On the 23d day of October, 1843, Garrett Keirn filed in the superior court of chancery his bill against Morgan McAfee, Madison McAfee, John H. McAfee, Jesse McAfee, Margaret Colbert, Joseph McAfee, John G. Parker, and Elizabeth his wife, Lazarus B. Ragan and Minerva his wife, Joseph Lott, Sarah Lott, Morgan Lott, William Lott, Thomas Lott, Margaret Lott, Absalom Powell and Angeliue his wife, William M. Jayne, Joseph M. Jayne, Joseph Colbert, Anna Jane, Amanda, Mary and Minerva Colbert, alleging that prior to the 19th day of June, 1844, he was an occupant of lots numbered 2, 3, 6 and 7, of section 12, in township 16, of range 1, west, subject to sale at Mount Salus, containing one hundred and eighty-one acres, and all at that time public land, belonging to the United States of America; that on the 19th day of June, 1834, he was in possession of the same, and in 1833, he cultivated a quarter of a section thereof; that being in possession of the land and having cultivated the same, he was entitled and desirous to claim the benefit of the laws of the United States of the 29th day of May, 1830, and the 19th day of June, 1834, by which preemption rights were granted and secured to settlers upon public lands in the manner and form therein set forth; that he made proof of his possession and cultivation of the land to the satisfaction of the register and receiver of the land district in which the lands were situated; and on the 8th day of November, 1834, he purchased the same from the United States, and received the register’s certificate of purchase of that date, having previously paid the purchase-money, amounting to $226 25; and he filed the register’s certificate as exhibit A. to the bill. That on the 10th day of February, 1840, the United States issued to him a patent for the land, thereby fully vesting in him the legal and equitable title to the same; which was filed with the bill as exhibit B.; that he had continued in the possession of the land, and cultivated it' from 1833 to that time, and was then in possession of it. Complainant further alleges that on the 16th day of August, 1834, Joseph McAfee, since deceased, by his agent Morgan McAfee,, deposited and caused to be recorded in the office of the district of lands for sale at Mount Salus, a deed of transfer under the corporate seal of Jefferson College, dated the 16th day of August, 1834, for two sections of land, to which the college was entitled by virtue of the act of the congress of the United States of the 20th day of April, 1832, entitled “ an act for the relief of Jefferson College, in the state of Mississippi; ” that Joseph McAfee, therefore claimed the right to enter and locate as unappropriated land,- the four lots above-mentioned in the possession of complainant, and received from the register a certificate that he had entered and located the same; a copy of which certificate was filed as exhibit C to the bill; that Morgan McAfee, at the time he deposited the deed and received the register’s certificate, well knew that complainant was in possession of the land, had cultivated it in 1833, was in possession of it on the 19th day of June, 1834, and had the right and privilege of entering the same as preemptor, and that he intended to comply with the provisions of the preemption law. Yet with a full knowledge of these facts, Morgan McAfee was fraudulently seeking to deprive complainant of the benefit of the provisions of the preemption law. Complainant further charged that the title which he acquired to the land, by virtue of his entry as preemptor, and the subsequent issuance of a patent to him, was valid in a court of equity against the legal title which McAfee acquired; but in a court of law, he was advised, it was extremely doubtful whether he could sustain his claim against the title of McAfee; that Joseph McAfee had departed this life, leaving the above-mentioned defendants his children and heirs at law.- Complainant further charged that Gilbert B. Collins, who was a native of the Choctaw tribe of Indians, had in actual cultivation during the year 1830, a tract of from two to twelve acres of land, with a dwelling-house thereon ; and was, in consideration thereof, by virtue of the 19th article of the treaty of Dancing Rabbit Creek, entered into by the United States and the Choctaw tribe of Indians, on the 27th day of September, 1830, entitled to a reservation of one-eighth of a section of land, to include that portion of the land he had in cultivation and upon which his dwelling-house was situated ; t[iat the lands were surveyed, and it was ascertained that the eighth of land including the dwelling-house and improvement of Collins, embraced lots one and eighth in section 12, township 16, of range one, west; that Collins applied to the locating agent of the United States in pursuance of the 19th article of the treaty of Dancing Rabbit Creek, and lots one and eight were reserved and set apart by the agent of the United States for him, and were so marked upon the maps, and appeared upon the records of the office of register for the district of lands, subject to entry at Mount Salus; and a certificate of the register of the land-office, showing those facts was filed as exhibit D to the bill; that on the 28th day of October, 1831, Collins sold and conveyed lots one and eight, reserved for him, to complainant, by deed of that date, which deed was filed as exhibit E to the bill, and immediately placed complainant in possession of the same, and he has continued in the possession and cultivation of it ever since; that the patent from the United States for the eighth of a section conveyed by Collins to complainant, had not then issued, but it was supposed it would be issued soon, and when issued it would be filed as exhibit F to the bill; that he was advised and believed he had a valid, equitable, if not a good legal title to land so purchased of Collins. Yet Joseph McAfee, under his deed above-mentioned, claimed the right to locate and enter as vacant and unappropriated land, the lots one and eight, conveyed by Collins to complainant, and on the 16th day of August, 1834, he received from the Register of the land-office at Mount Salus a certificate that he had located and entered the same. Complainant charged that lots one and eight were in his possession and cultivated by him, and belonged to him by virtue of his purchase from Collins, at the time McAfee pretended to locate and enter them, as Morgan McAfee, the agent who acted for Joseph McAfee, then well knew; and he therefore charged that the conduct of Morgan McAfee in relation to that matter was fraudulent and iniquitous. Complainant further charged that the heirs of Joseph McAfee were claiming all of the above-mentioned lands, and had instituted an action of ejectment in the circuit court of Holmes county for the recovery of the same, and were endeavoring to eject and dispossess complainant thereof. The prayer was for a perpetual injunction against the action of ejectment, and all other proceedings by the defendants, for the recovery of the lands; and if the court were of opinion that complainant had a good legal title to the land, that the certificate held by the defendants should be delivered up and cancelled; or if the court should believe that the legal title was in the defendants, by virtue of the register’s certificate to their ancestor, that they should be declared trustees, holding the title for the benefit of complainant, and compelled by sufficient deed to convey the same to him. An injunction was granted, according to the prayer of the bill, by the Hon. William L. Sharkey. Exhibit A contained affidavits of the complainant, B. T. Edrington and Joseph L. Chappell, that complainant cultivated lots No. 2, 3, 6 and 7, in section No. 12, township No. 16, of range No. 1, west, in 1833, and was in possession of the same on the 19th day of June, 1834; the certificate of Henry G. Johnson, a justice of the peace, that he had been personally and intimately acquainted with the complainant, B. T. Edrington, and Joseph L. Chappell, for some years, and they were men of strict veracity and entitled to full faith and credit; the written statement of J. L. Sumerall, register, and S. W. Dickson, receiver, that the affidavits were laid before them, and they were satisfied the evidence was sufficient to entitle the complainant to the benefit of the preemption law; and the certificate of the register, dated the 8th day of November, 1834, that the complainant had purchased the above-named lots, and paid the purchase-money therefor, amounting to $226 25, and was entitled to a patent for the same. The other exhibits are substantially stated in the bill. Morgan McAfee answered, that Iris' father, Joseph McAfee, purchased two sections of land in 1833, from Jefferson College, which gave him the right to locate any unappropriated lands in the Choctaw country; that on the 16th day of August, 1834, as the agent of his father, he applied to the register of the land office at Mount Salus to locate two sections of land, and he was permitted to do so; upon examination he ascertained that lots No. 1, 2, 3, 6, 7 and 8, in section No. 12, of township No. 16, of range No. 1, west, were vacant and unappropriated, and he thereupon located and entered them, under and by virtue of the provisions of the act of congress, of the 20th of April, 1832, believing at the same time that congress could not pass any law to deprive Joseph McAfee of the right he obtained to the land under his purchase from Jefferson College ; that he acted in good faith and with the single view of making Joseph McAfee’s contract with the college available, and no fraud was either intended or committed on the rights of the complainant. Respondent did not know, of his own knowledge, nor was he advised by the complainant, or any other person, that complainant had any claim to all, or either, of the lots; the map did not show, at the time respondent made the location, that the lands had been applied for by any person; and the register of the land office pronounced them vacant and unappropriated, and subject to be located under the Jefferson college floats. Respondent admitted that at the time he applied to enter the lands, he was aware of the fact that complainant was in possession of the same, and that he had cultivated them, or part of them, in the year 1833, and was in possession of them, or part of them, on the 19th day of June, 1834, and presumed (but did not know) that he was entitled to the right and privilege of entering the same as a preemptor, by complying with the provisions of the different acts of congress in such case made and provided. But respondent insisted that complainant’s inchoate right of preemption could not alter previously vested rights conferred by contracts upon other and prior purchasers of the public domain. Respondent understood that complainant designed applying for the benefit of the preemption laws, but he did not know, nor was he informed, what particular lands were intended to be embraced in his claim. In relation to the purchase alleged to have been made by complainant, of Gilbert B. Collins, respondent knew nothing; he therefore neither admitted nor denied the allegations on that subject, and called for strict proof; he denied all the fraud with which he was charged in the bill. The other defendants answered that they knew nothing in relation to the subject-matter of the bill, but what they learned from their co-defendant, Morgan McAfee, and they therefore referred to his answer, which they believed contained the truth.
    The defendants read a transcript from the register of reserves, kept by the locating agent, dated Clinton, November 8, 1834, the first line of which was in these words: “G. B. Collins’s lots No. 1 and 8, S. No. 12, T. 16, R. 1, W. conditioned;” to which was annexed the following certificate, to wit: “I certify the above is a copy of the names of reserves taken from my register as locating agent. G. W. MaRtin. November 8, 1834.”
    
      And they also read the following letter and certificate :
    
      “ Chocchuma, Dec. 4, 1834.
    
      “ To the Register and Receiver at Clinton,
    
      “ Gent. — I am confident that from the fact of reserves made by order of the secretary of the treasury with regard to the lands in Township 16, Range 1, that it will be impossible for me, as locating agent, to arrange the numerous conflicting claims in that township, and I would therefore recommend that the said 'township entire be reserved from sale.
    
      “I am very respectfully yours, Geo. W. MARTIN.”
    
      Land Office, Jackson, Miss. Jan. 17, 1845.
    í! I, B. R. Cowherd, register of the land office at this place, do hereby certify that the foregoing transcript and letter contains every thing in my office in relation to the sections of reservations made by George W. Martin as locating agent.
    “ Given under my hand the day and date above written.
    “ B. R. Cowheed, Register.”
    
    The deposition of Henry G. Johnston was read on behalf of the complainant, and proved that deponent was at the land office at Mount Salus, and heard a conversation between the register and Morgan McAfee, the precise date of which deponent did not recollect, in relation to the location of floats, which seemed to be the business of McAfee, in which conversation McAfee spoke very highly of Dr. Keirn, the complainant, and expressed his regret that his interest led him to interfere with the doctor’s claim, but his interest required him to do it, and he would do it, and he then made his location covering Dr. Keirn’s preemption. Deponent recollected the conversation distinctly because Dr. Keirn and himself being brothers-in-law, he paid particular attention to it, and informed Dr. Keirn of it the first time he met him after the conversation took place. Upon cross-examination, he said he knew that McAfee was aware of the fact that Dr. Keirn claimed a preemption, because he heard the register tell him so, and it was in answer to that statement of the register, that McAfee responded that he regretted to interfere with Dr. Kiern’s claim. In this condition the cause was submitted to the chancellor, who rendered a final decree on the 1st day of March, 1845; perpetually enjoining the defendants from prosecuting any further their action of ejectment, or instituting any other proceeding for the recovery of the lands described in the bill. From which decree the defendants appealed to this court.
    
      W. R. Miles, for appellants.
    
      William Yerger, for appellee.
   Mr. Chief Justice Sharkey

delivered the opinion, of the court.

This is an appeal from the superior court of chancery, which presents two questions: First, will a junior patent predicated on a senior preemption right, overreach a senior patent to the assignees of Jefferson College, which issued in accordance with the provisions of the act of congress, in favor of Jefferson College ? And second, is a junior patent, predicated on a reservation to a Choctaw Indian, under the treaty of Dancing Rabbit Creek, a superior title to a patent to the assignees of Jefferson College ?

It appears that Keirn claimed to enter four lots of land in Section No. 12, of Township No. 16, of Range 1, West, under the act of congress of 1834, which extended the act of 1830, with some additional provisions. The first act gave a right of preemption to every occupant of public land, who was in possession of the land at the date of the act, and who had cultivated part of it in 1829, on his making proper proof before the register and receiver of the office where the land was subject to entry. This act was only to continue in force a limited time. The act of 1834 revived the act of 1830, and extended the right of preemption to persons then in possession, who had cultivated a part of the^ land in 1833. This last act was to continue in force two years. The right granted under these acts extended only to a quarter section of land. These acts only granted the right on certain conditions, or rather to a class of persons who had performed certain requisites, the proof of which was required lo be made in a particular way. It is evident that no one could claim the benefit of these acts, unless he could bring himself fully within their provisions, not only with regard to the facts to be proven, but also in the manner of making the proof. On the 20th of September, 1834, Keirn presented to the register and receiver of the land office at Mount Salus, his affidavit, stating therein that he had cultivated part of the land in 1833, and had possession of it on the 19th of June, 1834, the date of the act. He also proved the same facts by the separate affidavits of two witnesses, B. T. Edrington and Joseph L. Chappell, and presented the certificate of Henry G. Johnston, stating that he knew the witnesses, and believed them to be men of veracity and entitled to credit, whereupon the register and receiver signed a joint certificate, acknowledging themselves to be satisfied with the witnesses, and on the 8th of November, 1834, Keirn received from the register a certificate of entry. On the 10th of February, 1841, a patent issued.

On the 16th of August, 1834, Joseph McAfee, as assignee of Jefferson College, presented his deed of transfer to the register of the land office at Mount Salus, for two sections of land, and made his location so as to include the land already mentioned as claimed by Keirn, and received the register’s certificate, which is declared by the act of congress to be equivalent to a patent. McAfee therefore had the older patent, and unless Keirn can make his junior patent retake back to his prior right of preemption, he must fail.

These preemption acts do not confine the right to any particular lands. The whole of the public domain was subject to this right, with the exceptions mentioned in the act. We cannot question the right of congress to confer this privilege on the actual settler, and the fact that it was a gratuity, makes no difference ; the right is as valid as though it had been founded on a valuable consideration. It amounted to something more than a mere right to enter the land at government price ; that right every citizen had, and if the act of congress did no more, it was useless. But it did more; it gave a preference to the actual settler, the effect of which was to exclude the right of all others so long as this preference could be claimed. Hence it was a requisition of the proper department, or a provision of law, that no entry should be allowed until the applicant had filed an affidavit that the land was not occupied or cultivated. This right of preemption then constituted an equity in favor of the occupant. Not an uncertain indefinite equity; it was located and identified; it attached to the particular quarter section occupied and cultivated by the claimant. The act of congress was an appropriation of all land so occupied. This equity might be lost, of course., by a failure to make the entry within the prescribed time, but during the whole of that time the occupant had a-right to make the entry at the minimum price, to the exclusion of all other entries. Keirn has shown a complete equity, by a literal compliance with every provision of the law, and having subsequently made the entry and received a patent, his title must be regarded as superior in a court of equity, to any title acquired by mere entry, and a patent on it, although it be older than the patent under the preemption right. Equity looks to the incipient right, and couples to it the perfect title. The patent relates to the inception of title, and in a court of equity the person who has first appropriated the land, has the best title. Taylor v. Brown, 5 Cranch, 234; Polk's Lessee v. Wendell, 9 Cranch, 87; Fenley v. Williams, Ib. 164; McArthur v. Browder, 4 Wheaton, 488; Isaacs v. Steel, 3 Scam. R. 97; Bruner v. Manlove, Ib. 339. The bill charges McAfee with notice of complainant’s preemption-right at the time he made his location, and the answer admits that respondent knew that Keirn was in possession of the land. He made his location then with a full knowledge of the complainant’s right.

But it has been insisted that the appellants have a title superior to that of a common purchaser of public land, inasmuch as they derive title through Jefferson College, which was privileged to locate the quantity of land granted to it, on any vacant and unappropriated land, either before or after it had been offered for sale. The preemption laws extended precisely the same right; they did not confine the claimant to land that had been offered for sale, or even to land that .had been surveyed. The right of Jefferson college was to locate unappropriate land; the preemption right is based upon actual location, and in consequence of the location, the land was appropriated. But if there could be any doubt on this subject, we might regard the question as virtually settled, by the decision of the commissioner of the general land office, which is against the validity of McAfee’s entry, and in favor of Keirn. It seems also that the .secretary of the treasury decided that McAfee’s claim must yield to the preemption claimant.

The distinction between this case and that of Fulton et al. v. Doe ex dem. McAfee, 5 Howard, 751, is quite clear. That was an action at law, in which the junior patentee wished to go behind his patent, and establish his right in virtue of the preemption laws; and he even failed in showing that he was within the provision of those laws. He had not made the requisite proof to entitle him to a preemption right, nor had he made it in the manner prescribed.

With regard to that portion of the land claimed under the reservation, in the Ghoctaw treaty, there is no room for even a ■doubt. It seems that the land was reserved from sale for Collins the Indian, by G. W. Martin the locating agent. The reservations under that treaty have been held to be complete titles, subject to be defeated by the non-performance of conditions subsequent. Collins’s title then accrued in 1830. He transferred it •to Keirn by the consent of the president of the United States, and Keirn has received a patent. The reservation under the treaty, properly transferred to Keirn, even without the patent, would have been sufficient as against McAfee’s title. Altogether, we think the decree of the chancellor was right, and it is accordingly affirmed.  