Lytle v. The State of Arkansas. 9 H.

ROBINSON LYTLE and LYDIA LOUISA LYTLE, his Wife, ELIAS HOOPER and MARY E. HOOPER, his Wife, and NATHAN H. CLOYES, a Minor, under twenty-one years of age, by WILEY CLAYTON, his Guardian, V. THE STATE OF ARKANSAS, WILLIAM Russell, the Real Estate BANK OF THE STATE OF ARKANSAS, the Trustees of said Real Estate Bank aforesaid, RICHARD C. BYRD, JAMES PITCHER, Wм. P. OFFICER, EBENEZER WALTERS, JOHN WASSELL, JOHN W. COCKE, FREDERICK W. TRAPNALL, GEORGE C. WATKINS, SAMUEL H. HEMPSTEAD, JOHN ROBINS, JOHN PERCEFULL, JAMES S. CONWAY, HENRY F. PENDLETON, JACOB MITCHELL, THOMAS S. REYNOLDS, JOHN H. LEECH, WM. E. WOODRUFF, CHESTER ASHLEY, Wм. J. BYRD, WM. W. DANIEL, and JOHN MORRISON and EDNEY, his Wife.

9 H. 314.

Under the act of May 29, 1830, (4 Stats. at Large, 420,) continued in force by the act of July 14, 1832, (4 Stats. at Large, 603,) and the instructions of the commissioner of public lands, the preemptioner was permitted to file his proofs, identifying the land, in the absence of surveys; the register and receiver were constituted a tribunal to decide on the validity and extent of such preëmption rights, and their decision can be impeached only by evidence of fraud.

Where the misconduct, or neglect of a public officer, is the sole cause why an individual fails to obtain a title under a valid preëmption claim, equity will relieve him.

Under the acts above mentioned, the preëmption right is limited to the fractional quarter section on which his improvements were made, and does not extend to adjoining fractions not exceeding one hundred and sixty acres.

The act of June 15, 1832, (4 Stats. at Large, 531,) granting land to the territory of Arkan sas, did not affect a preëmption right then duly proved.

THE case is stated in the opinion of the court.

Badger and Lawrence, for the plaintiff.

Sebastian, contrà.

*

[ * 328 ] 'M'LEAN, J., delivered the opinion of the court.

This writ of error brings before us a decree of the supreme court of the State of Arkansas.

The complainants filed their bill in the Pulaski circuit court of that State, charging that Nathan Cloyes, their ancestor, during his life, claimed a right of preëmption under the act of congress of the 29th of May, 1830, to the northwest fractional quarter of section numbered two in township one north of range twelve west. That he was in possession of the land claimed when the above act was passed, and had occupied it in 1829. That he was entitled to enter, by legal subdivisions, any number of acres, not more than one hundred and

Lytle v. The State of Arkansas. 9 H.

sixty, or a quarter section, to include his improvement, upon paying the minimum price for said land. That Cloyes, in his lifetime, by his own affidavit, and the affidavits of others, made proof of his settlement on, and improvement of, the above fractional quarter, according to the provisions of the above act, to the satisfaction of the register and receiver of said land district, agreeably to the rules prescribed by the commissioner of the general land-office; and on the 20th of May, 1831, Hartwell Boswell, the register, and John Redman, the receiver, decided that the said Cloyes was entitled to the preëmption right claimed.

That on the same day he applied to the register to enter the northwest fractional quarter of section two, containing thirty acres and eighty-eight hundredths of an acre; also the *northeast [*329 ] fractional quarter of the same section, containing forty-two acres and thirty-two hundredths of an acre; and also the northwest and northeast fractional quarters of section numbered one, in the same township and range, containing thirty-five acres and forty-one hundredths of an acre, the said fractional quarter sections containing one hundred and eight acres and sixty-one hundredths of an acre; and offered to pay the United States, and tendered to the receiver, the sum of $135.761, the government price for the land. But the register refused to permit the said Cloyes to enter the land, and the receiver refused to receive payment for the same, on the ground that he could only enter the quarter section on which his improvement was made. That the other quarter sections were contiguous to the one he occupied.

That under the act of the 25th of June, 1832,1 entitled, "An act establishing land districts in the territory of Arkansas," the above fractional sections of land were transfered to the Arkansas land district, and the land-office was located at Little Rock, to which the papers in relation to this claim of preemption were transmitted.

The bill further states, that under an act of congress of the 15th of June, 1832, granting to the territory of Arkansas one thousand acres of land for the erection of a court house and jail at Little Rock, and under "An act to authorize the governor of the territory to sell the land granted for a court house and jail, and for other purposes," dated 2d March, 1833, John Pope, then governor of said territory, among other lands, selected, illegally and by mistake, for the benefit of the territory, the said northwest fractional quarter of section numbered two, for which a patent was issued to the governor of the territory and his successors in office, for the purposes stated.

That the said John Pope, as governor, under an act granting a

14 Stats. at Large, 549.

Lytle v. The State of Arkansas. 9 H.

quantity of land to the territory of Arkansas, for the erection of a public building at the seat of government of said territory, dated 2d March, 1831,1 and an act to authorize the governor of the territory to select ten sections to build a legislative house for the territory, approved 4th July, 1832,2 selected the northeast fractional quarter of section two, and the northwest fractional quarter and northeast fractional quarter of section one, as unappropriated lands, and, having assigned the same to William Russell, a patent to him was issued therefor, on or about the 21st of May, 1834, both of which, the complainants allege, were issued in mistake and in violation of law, and in fraud of the legal and vested right of their ancestor, Cloyes.

That after the refusal of the receiver to receive payment [* 330] for the land claimed, an act was approved, 14th July, 1832, continuing in force the act of the 29th of May, 1830, and which specially provided, that those who had not been enabled to enter the land, the preëmption right of which they claimed, within the time limited, in consequence of the public surveys not having been made and returned, should have the right to enter said lands on the same conditions, in every respect, as prescribed in said act, within one year after the surveys should be made and returned, and the occupants upon fractions in like manner to enter the same, so as not to exceed in quantity one quarter section. And that this act was in full force before Governor Pope selected said lands, as aforesaid. That the public surveys of the above fractional quarter sections were made and perfected on or about the 1st of December, 1833, and returned to the land-office the beginning of the year 1834. On the 5th of March, 1834, the complainants paid into the land-office the sum of $135.761, in full for the above-named fractional quarter sections. That a certificate was granted for the same, on which the receiver indorsed, that the northwest fractional quarter of section two was a part of the location made by Governor Pope in selecting one thousand acres adjoining the town of Little Rock, granted by congress to raise a fund for building a court-house and jail for the territory; and that that indorsement was made by direction of the commissioner of the general land-office.

That the register of the land-office would not permit the said fractional quarter sections to be entered.

That the patentees in both of said patents, at the time of their application to enter the lands, had both constructive and actual notice of the right of Cloyes. And that the present owners of any part of these lands had also notice of the rights of the complainants.

The answer of the Real Estate Bank and trustees admits the

Lytle v. The State of Arkansas. 9 H.

"From

proof of the preëmption claim of Cloyes, but they say: beginning to end it is at issue of fraud, falsehood, and perjury, not only on the part of Cloyes, but also on the part of those persons by whose oaths the alleged preëmption was established. And they allege, that the lots four, five, and six, in block eight, in fractional quarter section two, claimed by the bank, were purchased of Ambrose H. Sevier in the most perfect good faith, and without any notice or knowledge whatever, either constructive or otherwise, of any adverse claim thereto." That they have made improvements on the same, which have cost $25,000, without ever having it intimated to them that there was any adverse claim, until [* 331 ] all of said improvements had been completed.

James S. Conway, in his answer, denies the validity of the preemption right set up in the bill, and alleges that it was falsely and fraudulently proved. And he says, that when he purchased," he did not know that there was any bona fide adverse claim or right to said lots, or any of them; and he avers, that he is an innocent purchaser for a valuable consideration, and without actual or implied notice, except as hereinafter stated." And he admits that he occasionally heard the claim of Cloyes spoken of, but always with the qualification that it was fraudulent and void, and had been rejected by the government.

Samuel A. Hempstead, in his answer, denies that, at the time of the purchase of said lots, or the recording of said deed, he had notice, either in fact or law, of the complainants' claim.

The other defendants filed special demurrers to the bill. The circuit court, as it appears, sustained the demurrers, and in effect dismissed the bill. The cause was taken to the supreme court of Arkansas by a writ of error, which affirmed the decree of the circuit

court.

The demurrers admit the truth of the allegations of the bill, and consequently, rest on the invalidity of the right asserted by the complainants. The answers also deny that Cloyes was entitled to a preemptive right, and a part, if not all of them, allege that they were innocent purchasers, for a valuable consideration, without notice of the complainants' claim.

The first section of the act of 29th May, 1830, gave to every occupant of the public lands prior to the date of the act, and who had cultivated any part thereof in the year 1829, a right to enter at the minimum price, by legal subdivisions, any number of acres not exceeding one hundred and sixty or a quarter section, to include his improvement; provided the land shall not have been reserved for the use of the United States, or either of the several States.

Lytle v. The State of Arkansas. 9 H.

In the third section of the act it is provided, that, before any entries being made under the act, proof of settlement or improvement shall be made to the satisfaction of the register and receiver of the land district in which the lands may lie, agreeably to the ruies prescribed by the commissioner of the general land-office for that purpose.

On the 10th of June, 1830, the commissioner issued his instructions to the receivers and registers under the above act, in which he said, that the fact of cultivation and possession required "must be estab

lished by the affidavit of the occupant, supported by such [*332 [ corroborative testimony as may be entirely * satisfactory to both; the evidence must be taken by a justice of the peace in the presence of the register and receiver." And the commissioner directed, that, where the improvement was wholly on a quarter section, the occupant was limited to such quarter; but where the improvement is situated in different quarter sections adjacent, he may enter a half quarter in each to embrace his entire improvement.

Another circular, dated 7th February, 1831, was issued, instructing the land officers, where persons claiming preëmption rights had been prevented under the above circular from making an entry," "by reason of the township plats not having been furnished by the surveyorgeneral to the register of the land-office, the parties entitled to the benefit of said act may be permitted to file the proof thereof, under the instructions heretofore given, identifying the tract of land as well as circumstances will admit, any time prior to the 30th of May next.” And they were requested to "keep a proper abstract or list of such cases wherein the proof shall be of a character sufficient to establish to their entire satisfaction the right of the parties, respectively, to a preemption," &c. "No payments, however, were to be received on account of preëmption rights duly established, in cases where the townships were known to be surveyed, but the plats whereof were not in their office, until they shall receive further instructions."

Under this instruction, on the 28th of May, 1831, the register and receiver held that Nathan Cloyes was entitled to the northwest fractional quarter, as stated in the bill, but rejected the privilege of entering the adjoining fractions.

Several objections are made to this procedure. It is contended that the land officers had no authority to act on the subject, until the surveys of the township were returned by the surveyor-general to the register's office; and, also, that in receiving the proof of the preemption right of Cloyes, the land officers did not follow the directions of the commissioner.

The first instruction of the commissioner, dated 10th June, 1830, required the proof to be taken in presence of the register and receiver,