
    SALTMARSH vs. CROMMELIN.
    [TRESPASS TO TRY TITLES TO LAND.]
    1. Greek Indian reservation; authority of commissioner of general land-office to order sale of abandoned lands. — The act of congress approved July 4, 1836, (5 U. S. Statutes at large, 107,) which transferred to the commissioner of the general land-office “ the executive duties” appertaining to the sale of the public lands, conferred upon that officer the authority, xn-eviously vested in the secretary of the treasury, to give special directions for the sale of an abandoned reservation under the treaty of Fort Jackson of August 9, 1814.
    2. Same; commissioner’s instructions construed to authorize sale. — A letter from the coinmissioner of the general land-office, to the register and receiver of the local office, stating that, in his opinion, since it satis* faetorily appeared that the Indian had voluntarily abandoned his reservation under the treaty, “the land is now subject to entry under the pre-emption law,” is a “special direction” to the register and receiver to allow the land to he entered under the pre-emption law.
    3. Pre-emption entry. — The right to enter land, under the pre-emption law of 1834, does not depend upon the fact that the land has been previously exposed to public sale; nor can the validity of an entry, authorized by special instructions from the commissioner of the general land-office, be invalidated by proof of subsequent instructions from the commissioner, unless it is shown that those instructions are inconsistent with the former special instructions.
    
      4, Same; limitation of entry. — SiDce the third section of the pre-emption law of 1834 (4 U. S. Stat. at large, 678,) allows entries to which the general limitation of two years does not apply, the courts are bound to presume that any particular entry, the illegality of which is not affirmatively shown, was authorized by law.
    Appeal from the Circuit Court of Autauga, on change of venue from Coosa.
    Tried before the Hon. A. A. Coleman.
    This action was brought by Hiram F, Saltmarsh, William T. Minter, and Ashley Parker, against Charles Crom-melin, (and afterwards revived against his administrator,) to recover the possession of, as well as to try titles to a tract of land, containing about forty acres, which constituted a part of the south-east quarter of fractional section twenty-four (24), in township eighteen (18), range eighteen (18), in the district of lands subject to sale at Cahaba; and was commenced on the 11th October, 1840. Theacase. was before this court at its January term, 1846, when the judgment of the circuit was reversed, and the cause remanded; and again at its January term, 1854, when the judgment of the circuit court was affirmed. — See the report of the case in 9th Ala. 594, and 24th Ala. 347. The latter judgment of this court was reversed, on error, by the supreme court of the United States, at its December term, 1855, and the cause was remanded to the primary court for another trial. See the case reported in 18 Howard’s U. S. Rep. 87.
    The land in controversy was a part of the reservation set apart and appropriated, in pursuance of the act of congress approved March 3, 1817, and of the treaty with the Creek Indians which was made at Fort Jackson on the 9th August, 1814, to Tallasse Eixico, who was a friendly chief of the Creeks; was sold and conveyed by him, in 1828, while in possession, to one George Taylor; and was sold and conveyed by said Taylor, in July, 1834, for valuable consideration, to the defendant, who immediately took possession under his purchase, and was in possession at the commencement of the 'suit. The plaintiffs derived title to the premises under a pre-emption certificate to Isham Bilberry and Samuel Lee, which was issued from the land-office at Cahaba on the 4th June, 1839, and which • was marked in the margin “Entered under instructions of December 29, 1838”; an assignment of said certificate by said Bilberry and Lee to them, on the 4th June, 1839, and a patent thereon issued to them by the United States on the 10th October, 1840.
    On the trial, as appears from the bill of exceptions in the present record, the plaintiffs produced their patent from the United States, and proved the defendant’s possession of the premises at the commencement of the suit, and the value of the lands and of the annual rents; and the defendant then proved his title, as above set out. In rebuttal of the defendant’s evidence, and to show the authority under which their patent was issued, the plaintiffs then read in evidence a letter from the commissioner of the general land-office at Washington, dated the 11th October, 1834, and directed to the register and receiver of the land-office at Oahaba, in these words: “ Tour letter of the 4th nit., with its enclosures, has been received. As it satisfactorily appears from the papers that Tallasse Eixico voluntarily abandoned, in 1827 or 1828, the land reserved for him under the Creek treaty of 1814, and which, agreeably to the act of 1817, was to ‘ enure to such chief or warrior only so long as he shall continue to occupy and cultivate the same,’ and has obtained another reservation under the Creek treaty of 1832, — I am of opinion, that the land formerly held by him under the treaty of 1814 is now subject to entry under the pre-emption laws.” The register of the local land-office, who was examined as a witness on the part of the defendant, testified, “ that he made diligent search among the papers and records of said office, and could find no order or letter of instructions from tbe land-office, or from tbe secretary of tbe treasury, in relation to said land; and tbat it was tbe custom of tbe office to file •all orders and instructions from tbe department; but, in reply to a question by plaintiffs, be further stated, tbat be found a memorandum or reference to a letter from tbe commissioner, in relation to tbe said land, but could not find tbe letter itself.”
    “ In tbis state of proof, tbe court charged tbe jury, tbat the letter from tbe commissioner of tbe general land-office, dated October 11, 1834, was not a sufficient authority to tbe register and receiver of tbe land-office at Oababa to issue to Isbam Bilberry and Samuel Lee tbe certificate of purchase read in evidenceand if tbe said instructions contained in said letter was tbe only authority which emanated from tbe government, to tbe officers of tbe land-office at Cababa, for offering said land for sale or entry, and.tbe patent was issued in pursuance of an entry made under such instructions, then tbe patent would be void, and tbe jury should find for tbe defendant.” Tbe plaintiffs reserved an exception to tbis charge, and they now assign it as error.
    Bybd & MORGAN, for appellants.
    ElMoee & Yanoey, contra.
    
   A. J. WALKER, C. J.

Tbe court below instructed tbe jury, tbat tbe plaintiffs’ patent was void, if it was issued in pursuance of an entry made only under authority of tbe letter of tbe commissioner of tbe general land-office, of 11th October, 1834. In support of tbis charge it is contended, first, tbat tbe entry could not have been lawfully made without tbe special direction of tbe secretary of tbe treasury; secondly, tbat if tbe commissioner of tbe land-office bad authority to direct tbe entry, be has not done so in bis letter of 11th October, 1834; thirdly, tbat tbe land was not subject to entry, until it bad been offered at public sale; and, fourthly, tbat by an endorsement upon tbe mar-gin of tbe certificate of entry it appears, tbat tbe entry was in fact made upon tbe authority of instructionjgiven on the 29th December, 1838, and that, therefore, the entry cannot be justified by the letter of 11th October, 1834. We> propose to consider these points in the order in which they are presented.

The land in controversy is part of a tract reserved, under the first section of the treaty made at Fort Jackson, on 9th August, 1814, to Tallasse Fixico, which, upon his> voluntary abandonment, by the terms of the treaty, “ devolved to the United States.” — 7 U. S. Statutes at large, 121. By the 6th section of an act of congress, approved March 8d, 1817, it was enacted, that the register should not offer such a reservation for sale, unless specially directed by the secretary of the treasury. — 3 U. S. Statutes at large, 382; 1 U. S. L. L. 289. By the act of congress of 4th July, 1836, the executive duties appertaining to the sale of the public lands, or in any wise respecting the public lands, were imposed upon the commissioner of the general land-office. — 6 U. S. Statutes at large, 107; 1 Dub. L. L. 552. By this latter act, the authority to direct the sale of reservations under the treaty of Fort Jackson was transferred from the secretary of the treasury to the commissioner of the general land-office. We cannot agree that the authority of the commissioner of the general land-office is, by virtue of the phrase “ executive duties,” restricted to matters purely ministerial. That phrase has never been understood as having that effect; and the validity of the acts of the commissioner of the general land-office, in reference to questions of a judicial nature, has been repeatedly recognized. — Bates v. Herron, 35 Ala. 117; Mims' Heirs v. Higgins, in MSS. The intent that the commissioner should have authority to pass upon questions of a legal character is clearly shown by the 5th section of the act of 1836 above referred to; for that section creates the office of solicitor of the general land-office, for the purpose of aiding the commissioner in the decision of such questions.

The commissioner’s letter of ¡11th October, 1834, asserts that, as the voluntary abandonment of the land by Tallasse Fixico satisfactorily appeared from certain papers,in his opinion the land was subject to entry under the pre-emption law. We think tbis letter is a “special direction” to allow tbe entry of tbe land under tbe pre-emption law. Tbe commissioner of tbe general land-office stands in tbe light of a superior and revising tribunal to tbe registers of tbe local offices. Tbe announcement of tbe liability to entry of land reserved under tbe treaty of 1814, must necessarily baye been tbe result of an opinion, founded upon evidence, that tbe reservee bad voluntarily abandoned tbe land, and that tbe law and interest of tbe government permitted tbe entry of tbe land. These things being involved in, and imphed by what is said in tbe letter, it must be understood as authorizing tbe sale of tbe land, in accordance with tbe terms of tbe pre-emption law.

Tbe third point is founded upon a total misapprehension of tbe statute. Tbe right to enter land under tbe pre-emption law does hot depend upon tbe fact that tbe land has been exposed to public sale. Tbis is shown by tbe whole scope of tbe pre-emption law, by tbe practice under it, and by tbe provision in tbe act of 1830, that tbe preemption right shall not delay tbe pubbc sales appointed by tbe president’s proclamation. — Public L. L. 473, 525, 574. If the letter of' 11th October 1834 authorized tbe entry of tbe land under tbe pre-emption law, tbe entry subsequent to that date could not be invalid, because tbe register bad received other instructions, unless it bad been shown that those instructions were inconsistent with tbe opinion given in tbe letter of 11th of October, 1834. Tbe fact that tbe commissioner of tbe general land-office bad cumulated bis instructions for tbe sale of tbe land certainly cannot vitiate tbe entry.

Besides tbe points which we have noticed, it is insisted that tbe right of pre-emption, under tbe act of 1834, only continued for two years after tbe passage of that act; and that tbe entry in tbis case, having been made in 1839, and purporting to have been made under tbe act of 1834, is void. To tbis it is a sufficient reply that, by tbe third section of that act, entries by a certain class of persons are allowed to which tbe limitation of two years does not apply. We must presume in favor of tbe legality of tbe entry, and are not authorized to pronounce it invalid when it appears that it may have been consistent with the law.

Note by Reporter. — This ease was decided at the June term, 1861.

Reversed and remanded.  