author: Mr. Justice Scott

text:
    Wynn vs. Garland.
    There is no ground to impute fraud to one legally entitled to a pre-emption, on account of failure to give notice of his right to another, who subsequently settles upon the same land, and makes valuable improvements thereon: nor on account of his omission to select, until the last day allowed by law for proof and payment, which of two tracts of land, upon both of which his improvement extended, he will elect to take.
    There is no doubt of the regularity and validity of the action of the Land Department in annulling a pre-emption allowed by the Register and Receiver, upon proof of a legal pre-emption right to the same land under a prior law — all entries being in fieri until sanctioned by the President by the issuance of the patent.
    Where a valid entry is set aside, and the land afterwards sold by the Government to another person, and the patent issued to him, he takes the legal title charged with the trust.
    The decision of the Register and Receiver, in allowing a pre-emption, is examinable in a court of chancery, for fraud or mistake, at the suit of one legally entitled to a right of pre-emption in the same land.
    And where a patent has been issued in such case, and fraud or mistake is clearly proven : as that the possession and cultivation of the patentee were not on the tract of land to which he proved up his pre-emption, but on an adjoining tract, a court of chancery will grant relief to the injured party.
    The admission of a fact, when not operating as an estoppel, is but evidence of the existence of the fact; and when it is established by other evidence, that the fact admitted never had existence, and that the party making it, could hav^ had no personal knowledge of the fact, such admission is not of much weight against him.

      Appeal from Lafa/yette Qi/rcuit Court in Cha/ncery.
    Hon. SheltoN WatsoN, Circuit Judge.
    Pike, for tbe appellant.
    "We apprehend that the counsel opposed to us hardly think of controverting the fact of mistake, at least; but rest their case on the broad position, that the decision of the land officers, as to the facts of cultivation and possession, is res adgudicata, not examinable in equity upon the allegations and proof made in this cause.
    The counsel appeared to rely, somewhat, in the court below on some statements of "Wynn’s, in his letters to the Commissioner of the General Land Office, as admissions of the fact of cultivation by Hemphill. "Wynn was not in the country at the time, and had no personal knowledge of the facts of cultivation and possession by Hemphill. Yague confessions and admissions are the weakest of all possible testimony; and when hastily and inadvertently made, without investigation, are”not binding. 1 Greenlf. Evidence, sec. 200; 17 Mass. 27; 3 Sumn. 435; 11 Verm. 138; 1 Wend. 625; 6 ib. 268, 277.
    There is no dispute in this case as to Wynn’s right to a preemption under the act of 1838, in case Garland cannot hold the land against him under the pretended pre-emption right of Hemp-hill.
    The next question, therefore, is how far the decision of the Register and Receiver, as to the facts of cultivation by Samuel Hemphill in 1829, and occupancy in 1830, is conclusive. In other words, can the court go behind their decision, and re-examine those questions of fact upon allegations of fraud or clear mistake of fact in the evidence given before them.
    By the pre-emption act of 1830, and the subsequent acts as to pre-emptions, the Register and Receiver are constituted a tribunal to receive testimony, and adjudge as between the claimant and the Government. Their proceedings are ex pevrte, without notice, actual or constructive, to individuals or the world.
    Admitting that the land officers act judicially, and that they stand on the same high ground as courts of general jurisdiction, what is the rule as to judgments ? Are they conclusive as to facts — as to the truth of the facts on which they are based, against third persons?
    They prove, conclusively, that such a judgment was rendered; and as to parties and privies, they prove conclusively all facts which were directly in issue, and found to be true by the jury or court; but as to strangers, they are matters inter alios acta, and prove nothing whatever. 2 Sba/rli. Evidence, 183,184/ 1 Greenlf. Evidence, secs. 522, 523, 538.
    OASES IN THE SUPREME COURT Wynn vs. Garland. [July
    Wynn was no party to this proceeding before the land officers, lie was not notified to be present — the proceedings were merely ex parte — there was no lis contestatio — he had no opportunity to produce witnesses, or cross-examine. And to hold him bound, under such circumstances, would be a total perversion of the principles of justice. 1 Jowrn. du. Pal. 560/ 3 ib. 125/ 19 ib. 698/ Polhier Part IV., chap. 3, art. 5, No. 900, 901, 902/ Ta-ber vs. Perret, 2 Gallis. 568/ Baring vs. Fannioig, 1 Paine 554/ 7 Oranch 271/ 11 Wheat 280/ 3 llar. <& John. 13/ 6 ib. 182/ 2 J. J. Marsh. 429, 440/ 3 Bibb 174/ Benison vs. Hyde, 6 Con. 518/ Shafer vs. Gates, 2 Ben Monroe 453/ Englehead vs. Button, 7 IIow. {Miss.) Pep. 99/ Nason vs. Blcdsdell, 12 Verm. 165.
    As to the decision of the [Register and "Receiver in this case, the proceedings before them were not based on any allegation that the right to the land was to be determined between Garland and Wynn, or any other person than Garland and the Government, who were the only parties to the suit; that no notice was sought to be given: that the decision was only that Garland had made such proof as the Government required for its own satisfaction, and so only settled the question as between Garland and the Government; and therefore, was as to Wynn a nullity. Browler vs. Edridge, 18 Oonoi. 10/ 9 Oranch 144/ [8 8m. <& Marsh. 268/ Bird vs. Wa/t'd c% Craveois, 1 Misso. 398.
    But we proceed further to say, that however conclusive the judgment may be held, and admitting that it stands on the same high ground as the sentence of a prize court, still it may be assailed for fraud, and its effect altogether avoided. Bradstreet vs. Neptome loisura/nce Oompcwiy, 3 Swnn. 604/ Pratt vs. Northam, 5 Mason 103/ 1 Gi-eenl. Ev., sec. 541/ Sions & Wise vs. Slacuon, ■3 Oranch 307/ Aononiden vs. Smith, 1 Yfheat. 447/ Fairfield vs. Baldwin, 12 Piclc. 388/ Borden vs. Fitch, 15 J. B. 145/ 5 Ohio .547/ 11 Mass. 265/ 3 Bay 30/ 2 Watts 180/ 2 ib. 354/ White vs.

      Jones, 1 Wash. 116; 1 Oreen 263; 3 Dessau. 269; 1 J. 0. It. 402; 1 Ves. 120; Sir. 666; 2 Oowen Rep. 193; 2 lien. c& Munf. 136; 3 J. G. R. 275; 5 ib. 52; 7 ib. 182; 2 Gill 291; 1 Hat. & John. 370; 2 .ZZffli’. <& Mellenry 140, 244; 3 Oratian 315; 4 Howard (Miss.) R. 56; MeGill vs. McGill, 4 Annual Rep. 260; 5 Craneh 196; 15 Peters 105; 7 1PA<?«¿. 1, 212, 140; 3 Story 536; Aoss vs. Lane, 3 N/«,. & Marsh. 547; Niles vs. Anderson, 5 Howard (Miss.) 365; ib. 562; 10 & Marsh. 295; Rector vs. Welch, 1 Misso. 835; 1 3/o«. 256; 3 ib. 260; 2 N. O. Howard 318; 3 Robins 296; 4 ¿5. 79; 2 Mete. 138.
    If tlie case were put on tbe mere ground of mistake, it would be tbe same. 1 Stonfs Equity, sec. 155, 166, 884.
    Hiere can be no doubt, that in this case a court of equity is competent to afford relief. As Wynn’3 right to a pre-emptiou, under the act of 1838, had accrued and become a vested one, before Hemphill’s pre - emption was allowed, and it is clear that Hemphill really never was entitled to a pre-emption on that tract, and proved one either by wilful fraud, or ignorant mistake; and as consequently there was no pre-emption right to it in any one, conflicting with Wynn’s, a court of equity will protect his rights.
    WatkiNS & Gallagher, for the appellee.
    We maintain that the complainant cannot, in this proceeding, impeach the title of Garland, either upon the ground of mistake in proving up the Hemphill pre-emption, or of fraud in procuring it to be done. Odious as fraud may and ought to be, whore it exists, the principle applicable in this case to either ground, is, we'think, the same.
    We never heard it contended for, much less admitted, that the District Land Officers, for the adjudication of pre-emption claims, constituted a court of general jurisdiction, either in personam or in rem, or that their decisions were entitled to any such respect, infra, or extra, territorially. On the contrary, they form a court of special and limited jurisdiction. They are, if we may so speak, a quasi court — no more so than any board of commissioners, appointed by authority of law to hear testimony, and adjudicate any matter affecting the rights or interests of the Government. The act of Congress maíces no provision for notice to any other parties, or to the world at large, and notice would not be presumed, because impossible. Arguments based on the supposed analogy between judgments in personam or in rem, and decisions in pre-emption cases, are only calculated to mislead the court,, and confound the whole subject. It would be a glaring absurdity to claim that a decision of the land officers concluded any rights but those of the claimant and the Government. And as against the Government or the claima/nt, their decision, if within the scope of their jurisdiction, is coNclusive — a proposition in which the common sense usage of the Land Department, and every respectable judicial authority, concur — which is no where denied, and is all we contend for in this case.
    "When a Government undertakes to dispose of the property of its citizens — to determine private rights, by the judgment or condemnation of its courts, the forms of law, founded in reason and justice, require notice, actual or constructive, before the suitors can become parties to the judicial contract, which disposes of their property and concludes their rights. An act of legislation which professed to deprive a citizen of his property, in possession, or in action, without notice or trial, would be unconstitutional or outrageous oppression, without a constitution. But, when á Government, for the disposition of its own property, or deternvmation of claims against itself, by general or special laws, establishes a tribunal, by whose decisions it agrees to become bound, it would be equally preposterous to suppose that any third person, other than the Government and the claimant, has a right to notice, or any pretence for assailing the decision, or impeaching its validity for any cause, much less on the ground that he had no notice of the proceeding.
    Recurring now to the usage of the Land Department, entitled to respect and adherence, because important rights to vast amounts of property are connected with, and grow out of it, we find there has never been a doubt as to tbe conclusive effect of a decision of tbe land officers. ¥e refer to tbe opinion of Mr. Bctlee. 2 Instructions da Opinions, Ho. 57, p. 85. See, also, lb., No. 64, p. 97/ lb., No. 88, p. 140, No. 682, p. 729.
    Tbe current of judicial decisions to tbe same effect, bas been uniform. McConnell vs. Wilcox, 1 Scam. 344/ Wilcox vs. Jackson, 13 Peter's 511/ Nicks vs. Rector, 4 Ark. 283/ Finley vs. Woodruff, 3 Fng. 341/ Grand Gulf Railroad Company vs. Bryan, 8 8m. da Marsh. 268/ Lytle vs. The State, 9 Howard U. 8. 333.
    Claim to a pre-emption, is essentially a claim against tbe Government ; notice of intention to make proof of it before tbe Eegis-ter and Eeceiver, is not necessary. The fact of cultivation and possession, is a question solely between tbe claimant and tbe Government. Tbe act of 1830 made no provision for notice or process of any kind.
    A court of chancery sustains and enforces a prior equity against tbe elder grant perfected by a patent, by means of tbe doctrine of relation. A court of equity looks to the inception of tbe title. Where a patent is issued, it has relation to tbe inception of tbe title, and, according to that, is upheld or overthrown. Where, by decree overriding tbe patent, a prior equitable right is sustained, tbe title so acquired bas relation to its inception. Tbe pre-emption acts, like all other laws offering rewards upon conditions, are proffered contracts. Lytle vs. The State, 9 How. U. S. Rep. 334/ MeAfee vs. Keirn, 6 Sm. da Marsh. 789/ Taylor vs. Brown, 5 Crcmch 234/ McArthwr vs. Brouder, 4 Wheaton 488/ Fenley vs. Williams, 9 Craneh 164/ Isaacs vs. 8teele, 3 Scam. 97/ Benner vs. Manlove, ib. 339.
    Admitting broadly tbe right of the United States to proceed to have canceled or vacated a patent which bas improperly issued, or been unduly obtained, the proceeding of course implies that there is something to be investigated, some issue to be judicially determined. Admitting that' — -it is a disgraceful supposition that the Government ever did or would, or can condescend, to assign or transfer its right or canse of action to impeach its own patent. When a prior pre-emption right is judicially established against a patent, the proceeding is not under the Government, but adverse to it; the suit is against the patentee, and succeeds, because the Government had no real or substantial interest to assign by grant or patent.
    We say there are two classes of cases where title would be decreed against a patentee: one, where the complainant had an equity by privity of contract with the patentee, which by relation was an equitable estoppel; and the other, where a senior equity was assorted against a junior equity, improperly ripened into a legal title by patent. In either case, the complainant may show fraud or mistake; as, for example, obtaining the patent in violation of the contract, or in procuring the allowance of the junior claim by undue means, or in having prevented the complainant from obtaining a confirmation of his prior equity against the Government. So far as we are enabled to examine, all the authorities cited for the appellant fall within one or the other of these two classes of cases; and we do not believe that a respectable authority can be produced deciding that a patent, issued upon a senior claim, can be impeached at the suit of a private individual, and for the purpose of letting in a junior claim.
    In West vs. Jarrett, 1 Harris, efe John. 539, the title of the complainant was elder in its inception, and superior to that of the defendant. Of the case of Garrettson vs. Oola, lb. 370, it may be said that the opinion of the Chancellor, so triumphantly quoted from, is altogether unintelligible — -was predicated on an erroneous assumption of facts; and lastly, his decision was reversed in the court of appeals. In Smith vs. Tates, 2 llar. & Mellen. 244, the complainant had the elder survey. In the State vs. Heed, 4 lla/r. c& Mellen. 10, the decree was to vacate a patent, which had been obtained by misrepresentation to the General Assembly, for land which, agreeably to an act of the General Assembly, had been sold to another person. In Hagans vs. Wardens, 3 Grattan 315, the complainant had the prior entry. In Ca/rt&rvs.

      Spencer, 4 IIow. Miss. 42, where Chief Justice SiiabKie said: “The validity of d patent cannot be questioned, either in a court of law or equity, except on the ground of fraud or mistake ” — though relief was denied, the case made by the bill was that defendant had fraudulently entered and obtained a patent for lands to which the complainant had a prior vested right of pre-emption. Me Gill vs. Me Gill, 4 Annual Pep. 266, needs no comment. Bocl-ley vs. Taylor, before noticed, Chief Justice Maesualu said “was an appeal from the decree of the court form the District of Kentucky, by which Taylor was directed to convey to Bodley and others a part of a tract of land to which ho held an older patent, but to which Bodley and others claim the better right under a junior patent.” In Brush vs. Ware, la Peters 107, the court said : “The controversy in this case, does not arise from adverse entries, but betioeen claimants imder the same warrant. And it is admitted that "Ware, as executor, had no power to assign' the military right, which, on the decease of Iloekaday, descended to his heirs. It is too clear to admit of doubt that Ladd, by circumvention and fraud, obtained the assignment from the executor, which enabled him to procure the warrant from the [Register.” In Pollds Lessee vs. Wendall, before noticed, the case, or the supposed case, was that the grant was absolutely void by the law of North Carolina. In Miller vs. Keer, 7 Wheaton 1, the decision was that where a superior equitable title vas assorted against a patent, it was first open to exa/mination, and the complainant failed because his supposed prior equity was founded on a mistake. In Iloffnagle vs. Anderson, 7 Wheat. 212, Chief Justice Marshall thought the alleged prior equity was too vague and indefinite to prevail against a patent, though founded on a mistake. In Bouldin vs. Massie’s Heirs, 7 Wheat. 122, whore Chief Justice Maesiiall said: “The title of the person who has obtained it (the patent,)-is undoubtedly examinable, but no presumption exists against him,” the case was that the complainant claimed, as heir of Robert Jouette, to whom a military land warrant had been granted by the commonwealth of Virginia, and the defendant claimed as assignee of Robert Jouette, and in that character had procured the patent. The complainant denied this assignment, “ on the existence and, validity of which, the whole-cause d&pended.'' It was a question of contract, both parties claiming under the same right. In Wiles vs. Anderson, 5 How. Miss. 382, both parties claimed to have purchased a reservation from an Indian. The complainants’ purchase, by which they acquired an inchoate equitable title, was prior to that of the defendants, whose purchase was made in fraud. In Hector vs. Welch, 1 Missouri 335, just where the quotation (in the argument for appellant) ends, the court proceed to say: “In either of which cases, it should be regarded as having no effect against a survey, or a New Madrid location, made prior to its ema/nation. In Stoddard vs. Chambers, 2 LLowmxl IT. S. 318, the case was that the senior claimants had the better right under a Spanish concession, opposed to a title having its inception subsequent to and conflicting with their cider right; and the conclusion of the whole matter was, that the patent of the defendant having issued for land which had been appropriated and reserved, was without authority of law, and void. In Lott vs. Proudhome, 3 Robinson La. 294, the location of the defendant was not made until after the plaintiffs had purchased. Kitternege vs. Breand, 4 ib. 79, needs no comment. If such authorities as those would aid the complainant’s case, others might be added of like import. Thus, Thredgill vs. Pimtard, 12 ILoward U. S. 24, was a case of prior equity by contract — and so in Bagnell vs. Broderich, 13 Peters 450, and Cromelin vs. Mintum, 9 Ala. 594.
    From the necessity of the case, and the uniform usage and construction of the law, making the President the head of the Land Department, and requiring him to see the laws faithfully executed, he acting through his subordinates, there has grown up a right of appeal to and power of revision in the Commissioner of the General Land Office, over the acts and decisions of the district land officers.
    Here were two decisions, in favor of claimants, under different acts, to tbe same tract, and upon questions of fact admitted to be witbin tbe jurisdiction of tbe land officers. It was the plain duty of tbe President to grant tbe patent to tbe person entitled to it as against tbe United States. It was no new case, nor a new question concerning tbe authority of tbe Commissioner by law and usage, with both adjudications and both claimants before him, to cancel tbe certificate which had improvidently issued, and award tbe patent to tbe claimant under tbe first law. That much remained for the President to do. Dioldnson vs. Brown, 9 8m. (& Marsh. 130/ Lewis vs. Lewis, 9 Misso. 183/ Miller vs. Ker, 7 Wheat. 1/ 3 Bob. La. Bey?. 295.
    "We hardly deem it necessary to argue the matter of tbe alleged mistake. As a minor question, it depends on the other. It will suffice to say that the cases which the counsel for ajipellant has put by way of illustration, fall short of meeting tbe question. Various acts of Congress have made provision for tbe correction of admitted mistakes. This is not such a one. Hemphill and the witnesses were not mistaken about the locality or description of the tract to which they intended to prove up a pre-emption.
    Tbe testimony taken in this cause clearly shows that Hemp-hill was entitled to a pre-emption; and if there were any doubt upon this subject, tbe complainant himself has furnished evidence, in the face of which he can hardly ask this court to decree against Garland, upon any ground, much less that of intentional mistake or fraud. Tbe counsel on the other side, has cited a long list of authorities to show, what be altogether overlooked in applying that rule to Garland, that proof of admissions is the weakest of all evidence; and he contends that the admissions of Wynn were made under a mistake. The rule stated is no doubt applicable to verbal admissions, where the question is as to the fact of the admission made in conversation. But these admissions of Wynn, were made by him— deliberately made in writing, while ingeniously and artfully representing his own case to the Commissioner, on the appeal, and arguing against that of Garland; and we think it demonstrable they could not have been made under a mistake.
   Mr. Justice Scott

delivered the opinion of tlie Court.

The land in controversy between these parties, is the north-east quarter of section eighteen, township sixteen south, of range twenty-five west. It is on the south side of Red River, in Lafayette county.

The bill was filed in'the Circuit Court of that county, by Wynn against Garland, to enjoin him from proceeding at law to recover the possession of the premises, to quiet plaintiff in his possession, and for general relief. Upon the hearing, the injunction before granted, was dissolved; Wynn was denied all relief, his bill dismissed, and Garland decreed damages against him under the statute, to be ascertained by a jury. Wynn then brought the case here by appeal.

: The transcript is quite voluminous. Besides lengthy pleadings, swollen by many exhibits, there are numerous depositions. It does not seem necessary to set these out, or State their substance beyond this, to wit:

Wynn claims the land under the pre-emption law of 1838. He made proof and payment under the provisions of that law, and obtained the usual patent certificate, on the 30th of November, 1842. There is no question but that he was entitled to purchase the land from the government, under that law, if no one had a superior right to purchase it under one of the prior preemption laws.

Samuel Hemphill, under whom Garland claims, asserted his right to purchase the sameland under the pre-emptionlaw of 1830 ; and, on the 19th of February, 1843, having made his proof under the provisions of that act, and the supplement to the same, to the satisfaction of the Register and Receiver of the proper Land Office, was allowed that day to pay out the land, and received the usual patent certificate for the same. This was regularly assigned to Garland; and, on the 9th of Januarv, 1844, after having examined the testimony filed to sustain these two respective confiic-ting claims against the Government, the Oommissioner of the General Land Office approved tbe last mentioned entry, upon tbe ground tliat the pre-emption right, under which it was made, was fully proven, and being under the law of 1830, must take precedence of Wynn’s entry, which, although fully proven also under the provisions of the law of 1838, was subject to the senior right under the prior law; and, upon that ground, canceled the entry of Wynn, and approving that of Hemphill, on the next day, to wit: the 10th January, 1841, the patent was signed by the President, and issued to Garland as assignee of Hemphill, in the usual course.

Tims Garland has the legal title, perfected by patent, which he claims to be supported by an equity of Hemphill, as against the Government, under the law of 1830, while Wynn, upon tlie foundation of his claim under the law of 1838, denies, in toto, the alleged equity of Hemphill, and assails it in divers ways; mainly, however, for abandonment, fraud, and mistake — setting up his own claim under the law of 1838, as being both legal and equitable, and the only true pre-emption right to the land in controversy. There is a vast deal in the record, both in the pleadings and evidence, relating to the improvements upon the public lands, of each of these parties, and of those under whom they claim, as successors, their respective improvements, which seems to be mainly designed to show hardship, that can have no legitimate influence in the decision of the questions involved. And as to such matter, it may be sufficient to remark, that each party having had a pre-emption right under the law of 1830, as assig-nee of the respective possessors of that year, by virtue of the cultivation and possession of their respective assignors, under which each had the election to take either of two or more tracts of land, upon which the respective cultivation of their several assignors extended in the year 1829, neither could have any equity in any other tract, than that one elected to be taken, however valuable may have been their several improvements upon the tracts, not covered by their respective pre-emption purchases as located by themselves, for the reason that all such improvements had been purchased or made at their own risk, like ordinary improvements upon the public lands, made with no reference to the acquiring of a pre-emption right.

And as to all such improvements, neither the Government, nor any purchaser from the Government, whether purchasing by virtue of a pre-emption right, or at auction sales of the Government, or by private entry, is to be held bound to respond to any supposed equity in the owners thereof, as against the Government, and her vendees are but simply intruders and trespassers.

Hence, as to all that class of claimants of the possession of the public lands, who may have thus improved, or purchased improvements upon the public lands, although their claims, while they continue to exist in fact, may be recognized and protected by our own State laws, as chattel interests, until such time as the Government, or her vendee, may assert the paramount title and interest in the soil, (when they at once cease to exist) there is no place for the application of the law of notice, because they have no such interest in, or title to the land as can be affected by any want of notice, unless it could be supposed that a court of equity would recognize, and protect as an equity against the owner, the fruits of an outright trespass upon his lands.

And for a like reason, it can have no place, as between claimants to a pre-emption to the same tract of land, under successive pre-emption laws; as for instance, under the law of 1830, and under that of 1838. Because, if the former exists in fact to a given tract of land, the latter does not pxist at all as to that tract. A pre-emption right, under any circumstances, is essentially a claim against the Government; and, under such circumstances, is essentially a unit. To suppose two to exist in fact, under such circumstances, would be as absurdas to suppose that two bodies, each of which was sufficient to fill a given space, could occupy that space at the same time. If the first should not be forfeited by a failure to make the proof and payment within the time prescribed by law, and should be perfected by a compliance with all the requisites of the law, the latter, in contemplation of law, never had, for a moment, any germ of existence; and, consequently, tbe occupier of tbe land, wbo claimed under tbe act of 1838, bad no greater interest in it, to be affected by a want of notice, than tbe ordinary squatter, wbo pretended to no pre-emption'claim at all.

So far as be was concerned, tbe law of 1838 bad no more effect than if be bad lived on bis own land, instead of that of tbe public ; because, in fact, be lived upon land, that bad been, in effect, appropriated under tbe law of 1830 ; and, consequently, not upon land to wbicb a pre-emption right, under tbe law of 1838, would attach.

It is true, that if tbe claimant, under tbe law of 1830, forfeited bis claim, after a pre-emption right had vested in him by virtue of bis cultivation in 1829, and possession in 1830, in consequence of a failure to comply with tbe conditions subsequently prescribed by that law, he (the claimant under tbe act of 1838,) would be entitled to tbe pre-emption right to tbe land; but this, if tbe forfeiture occurred after tbe time of the requisite cultivation and possession under tbe law of 1838, would be so only because tbe forfeiture, although occurring, in fact, after tbe requisite cultivation and possession under tbe law of 1838, would be held in law to relate to a prior time, in favor of tbe claimant under tbe law of 1838; so as to make tbe land unappropriated public land, at tbe. time when bis cultivation and possession in ufact was bad. Thus, in effect, tbe law would contemplate, that no claim under tbe act of 1830_ever did in fact exist, even in an inchoate manner.

Nor could tbe law of notice apply as between claimants under these two laws, although a claimant, under tbe former one, may have bad tbe option, under its provisions, to select either one of two several tracts of land, and might not have made bis election until after tbe time, when in fact tbe requisite cultivation, possession, and personal residence upon tbe tracts selected under tbe law of 1838, was fulfilled: provided tbe election was made within tbe time allowed by tbe law of 1830, and tbe supplements thereto; unless a court of equity would interfere in such a case, upon tbe ground upon which that court interferes to marshal securities, when one party has a lien or interest in two funds for a debt, and another party has a lien or interest in one only of the funds for another debt, and comj>els the former party to resort to the other fund in the first instance for the satisfaction of his debt, if that course is necessary for the satisfaction of the claims of both parties. But although this doctrine is applied to judgment creditors, as well as to others holding ordinary securities, there seems no warrant in the authorities to extend it to parties who claim an interest in land, not by way of secv/rity for a debt merely, but by way of absolute estate. And inasmuch as when courts of equity interfere in eases of securities, it is only in those cases where such interference “will not trench upon the rights, or operate to the prejudice of the party entitled to the double fund,” (Story’s Eq_. Jur., ch. 18, 633,) it would seem that if the doctrine should bo extended beyond securities, by parity of reason, this should be done upon a like condition, audit will not be contended that the frame of this bill has any capacity for relief in that view.

If the election between the tracts of land in this case, was in fact made within the time allowed by the law of 1830, and the supplement thereto, such election was as much “covered by the law,” as was the previous cultivation and possession, and the subsequent proof and payment under its provisions.

As between the claimant and the Government it cannot be denied, but that under the act of 1830, there was no other restriction upon the time, when this election should be made, than there was upon the time when proof and payment should be made, and that these were as well made on the last day allowed, as upon any previous one; and that when made, the election — the proof and payment — the patent certificate, and the subsequent issuance of the patent, would all relate to the time of the inception of title by the cultivation in 1829, and possession in 1830, and would necessarily work an appropriation of the land from that time; and, consequently, exclude it from the operation of any subsequent pre-emption law, wliicli was to allow pre-emption rights against tlie Government to unappropriated public lands.

And as between a pre-emption claimant under the law of 1830, and another claiming through the Government, under the law of 1838, even supposing he could claim more in the land than the Government could from whom ho claims, there could be no more ground to impute fraud to the former, from the fact that he had not made his election until the last day allowed him by the law of 1830, than there would bo to impute fraud to a prior purchaser of land, who had failed to have his deed recorded within the time allowed him by law for this purpose; and of a deed, in a case of that kind, it is said, in the opinion of the court in the case of Clark et al. vs. While, 12 Peters Rep. 198, “that by the common law, it was valid without registration; and where the registry acts require deeds to be recorded, they are valid until the time prescribed by the statute has expired; and if recorded within' the time, are as effectual from the date of execution, as if no registry act existed,” and the court proceeds to hold, under the circumstances of that case, that because the conveyance in question was not filed for registration until the last day of the six months allowed by law for that purpose, fraud was not predicable upon the mere feet of non-registry, until the end of the time allowed by law.

And in the case of Shinras et al. vs. Caig & Mitchell, 7 Cranch Rep. 50, which came up from the Circuit Court for the district of Georgia, by the statute of which State a deed is valid, if recorded wdtliin twelve months, but any deed recorded within ten clays after its execution takes preference of deeds not recorded within that time, or not previously on record, Chief Justice Marshall said: “It appears to the court that neither negligence, nor that fraud which is inferred from the mere fact of omitting to place a deed on record, can, with propriety, be imputed to the person who has used all the despatch which the law requires. If subsequent purchasers without notice sustain an injury within the time allowed for recording a deed, the injury is to be ascribed to tlielaw, not to the individual who has complied with its requisitions.”

And the case at bar, in its facts, are much stronger on this point than any case like these could be, even if the neglect of registering a deed had been only for a week, instead of to the last day allowed by law, because whatever hardship may have resulted to "Wynn from making or purchasing valuable improvements upon the land in question, prior to the return of the public surveys in 1841, it is utterly impossible to attribute any such hardship to Hemphill^ or to Garland, who claims under him, for the simple reason that until the public surveys had been made, it was known to no one, that any part of Hemphill’s improvement in the year 1830, was upon the quarter section of land in question.

Hence, neither the purchase of the improvement by Wynn of James, nor the valuable additions made thereto by himself, nor his residence thereon, on which he predicates his claim to a preemption under the law of 1838, could have been to any extent superinduced by any negligence or design on the part of Hemp-hill or of Garland, who succeeded him, in giving notice of that material fact. And indeed, if Wynn’s complaint of the want of notice of Hemphill’s pre-emption right to the land in controversy, is worth anything; it is so, because he lost a pre-emption right under the law of 1838, in consequence of Hemphill’s negligence in giving him such notice. If he simply lost improvements upon the public lands, which laid no foundation in himself for a preemption right under any law, he has no cause for complaint, although Hemphill might have been negligent, or have given him no notice at all. Because, as to all such improvements as against the Government or her grantee, he was but a mere trespasser, and it is manifest, that he has no other than the latter ground of complaint, if irrespective of the question of notice, Hemphill’s pre-emption right was not only good against the government, but Wynn also; because, neither Hemphill or Garland, who succeeded him, conld have been guilty of any negligence in giving notice of an intention to claim the land in question, until after the return of the public surveys in 1841. Until then, the difficulty could not have been remedied, although Hemphill had himself continued to reside on his improvement up to the day of the surveys, and had continually made proclamation of his intention to assert all rights accrued, or to accrue to him, under the law of 1830, and the supplements thereto. Up to this time, then, Wynn could have had no other than the squatter’s claim to the land, because it was not unappropriated public land, to which a preemption right under the law of 1838 could attach, however valuable may have been the improvements he purchased upon it, or those which he himself made in addition thereto. And he never could have obtained a pre-emption to the land, unless it had been subsequently forfeited to the Government, and by relation become unappropriated public land, as of a date to allow his cultivation of, and residence upon it in 1838, to spring up a pre-emption right to him, under the law of that year.

Now, supposing it to be conceded to Wynn, in the broadest sense, that Garland was bound to give him notice, at the earliest period practicable, of his intention to claim the land in controversy, and that it 'would be fraudulent in him, if he did not do so; and hence, an equity would arise in favor of Wynn against Garland, for the full measure of any injury, that such a fraud would work to the lawful rights of Wynn; still, no one will contend that the failure of Garland to give Wynn such notice would work a forfeiture, as against the Government, of Hemphill’s preemption claim, which Garland may be supposed to have asserted against the Government; and thus let in Wynn to a pre-emption right to the land under the law of 1838. Because, as between the pre-emptor under the law of 1830, and the Government, there is no such condition subsequent to work a forfeiture of the preemption right, as that the claimant shall give anj notice at all to third persons, as we shall presently see more fully, nor aDy notice to the Government herself, beyond that which is included in the condition to make proof and payment within the time prescribed by the law of 1830, and the supplement thereto. Hence, the measure of Wynn’s equity against Garland, for a failure to give him the notice contended for, would not be the value of the pre-emption right to the land in question, because Wynn did not lose that by that failure on the part of Garland. But the measure of his loss could only have been the value of the improvements put upon the land, in the interval between the making of the public surveys, and the entry of the land under the Hemphill pre-emption, less the value of the use of the land during that time.|f If, under the state of case we have supposed, it had been practicable for Garland to have given Wynn the notice contended for, in time for him to have gone on to another quarter section of public land, and obtained a pre-emption under thelaw of 1838, there would have been more ground upon which to suppose that the measure of his equity against Garland would have been the value of the land in controversy; because, in that case, it might be supposed he had lost a pre-emption right to a quarter section of land by such dereliction on the part of Garland. But, as he could have lost nothing, under the facts of this case, beyond the excess of the value of the permanent improvement (over the value of the use of the land during that time,) put upon it, during the interval mentioned ; that alone was the measure of his equity, under such supposed state of case.

But in reality he had no equity at all of any measure, predicated upon a failure of Garland to give him notice of his intention to claim the land in controversy, under the Hemphill pre - emption, inasmuch as that failure could not work a forfeiture of that pre-emption, as against the government, and thus let him into a pre-emption right under the law of 1838. Hence, having no right in the premises founded in law, he was incapable of injury, however much Garland might have infracted the conventionalities “of good neighborhood,” by a failure to give him the notice contended for; his rights in the premises being nothing beyond the “ squatter’s rights, ” at the mercy of the first lawful purchaser from the Government. And it is, therefore, unnecessary to insist upon tlie principles of law, which we have already cited, applicable as well to pre-emption rights as to the registration of deeds, which refuses to impute fraud, in the holder of an unregistered deed, to the mere fact of non-registry until the last day allowed by law, although the rights of subsequent purchasers, for a yaluable consideration, may be thereby injured. Such injury being, in the language of Chief Justice Mabshall, “to be ascribed to the law, and not to the individual who has complied with its requisites.” Neither the pre-emptor nor the holder of the deed being required to do more for the protection of third persons, who must be presumed also to know the law, than is required of them by the law.

It results, then, that Wynn stands upon no other or broader ground of equity, than that which he may have against the Government by virtue of having brought himself within the provisions of the pre-emption law of 1838, so far as cultivation, possession and residence upon the tract of land in question wore concerned, and the making of the proof thereof, and payment therefor, that were required by that law, within the time prescribed.

The circumstances that before the presentation of the pre-emption claim of Hemphill, Wynn had been allowed his claim under the law of 1838, and had entered the land by virtue of it, and received the ordinary patent certificate, in no way strengthens his case, or enlarges his basis of equity. Because, that having been allowed by the Register and Receiver, upon the then apparent ground that the land in question was unappropriated public land, to which a pre-emption right, under the law of 1838, would attach, his entry was afterwards set aside by the same officers, under the advice and instructions of the Commissioner of the General Land Office, whose action in the premises vas afterwards ratified and approved by the President of the-TJnited States in the issuance of the patent to Garland, as assignee of Hemphill, to the same land, based upon the claim cf Hemp-hill under the law of 1830, which had been regularly allowed by the same Register and Receiver, upon proof satisfactory to them of tbe validity of that claim under tlie prior law, which of course was inconsistent with any claim under the subsequent law of 1838, and worked the annulment of the entry, even without the express order for cancelation that was in fact made by the Commissioner of the General Land Office, whose doings were approved by the President in the issuance of the patent to Garland, as assignee of Iiemphill.

Without going at large into the subject, we will say, that we have no doubt of the regularity and validity of this action of the Land Department in annulling Wynn’s entry. It was consistent with the uniform usage of the Government, as is to be gathered from the orders of the President, the opinions of the Attorney General of the United States, the instructions of the Commissioner of the General Land Office, and the act of Congress providing for the refunding of the purchase money, when entries are set aside. Besides, the power in question is expressly recognized in several judicial decisions. In the case of Dickinson vs. Brown, 9 Sm. & Marsh. 136, the court used the following language : “But admitting that it constituted a legal title, it was in proof that the .certificate of ¿ntry had been canceled, and wo cannot say that the Register and Receiver, with the approbation of the Commissioner of the General Land Office, had no power to cancel it. On the contrary, it is believed that such power is uniformly exercised. To a certain extent these officers have a discretion in such matters. They are empowered to hear and decide on a pre-emption ri ght. As against the Government, the certificate is but an inchoate or incipient title; the officers discovered that it hadbeen improvidently issued, and canceled it, and issued a complete legal title to another and refunded, or offered to refund, the moneypaid.” See, also, Lewis vs. Lewis, 9 Missouri 183; Miller vs. Ker, 7 Wheaton 1. In the case of Lott vs. Proudhome, 3 Robinson Lou. R. 295, the court said : “It does not appear that these patents have ever been vacated or annulled, nor are we acquainted with any law which authorizes the Commissioner to vacate a patent already issued. We repeat, however, what was said in the case of Guidry vs. Woods, 19 Lou. R. 334, that we clo not doubt the authority of the Commissioner of the General Land Office to declare void a certificate of purchase of lands which the law forbids to be sold or disposed of.”

And indeed such a power would seem to be appropriately incident to that which authorizes the Executive Department to dispose of the public lands, which is founded upon no idea of sovereignty or lordship in reference to them, as resting in this department of the Government, but solely upon the laws of Congress providing for their disposition. Hence, the President and his subordinates, the Secretary, the Commissioner of the General Land Office, and the Register and Receiver of the proper Land Office, can dispose of a tract of land only in accordance with law, and any other disposition of it cannot be conclusive upon the rights of any lawful claimant, as against the Government.

When an equitable title, as against the Government, vests in any lawful claimant, the Government at once becomes a trustee for the legal title, and if that be afterwards improvidently issued to another person, he takes it charged in equity, with the trusts in favor of the equitable claimant.

As the successive steps, in procuring lands by purchase from the Executive Department, under the provisions of law for their sale, are upon the tacit condition that the acts of his subordinates in the premises will be ultimately approved, and sanctioned by the President, its head, the original entry is to be considered m fieri, until it receives this sanction by. the issuance of the patent, which is a reaord. The disposition of land by the executive under the pre-emption laws, is but one of the modes of sale provided by law, and though at first the supervision of the President through the Secretary and Commissioner, which had always before been exerted as to the other description of sales, was not to the full extent exerted over this description of sales, this distinction was soon practically abandoned, and now for a long time, this description of sales has been placed upon the same footing as the others, so far as the supervising control of the Executive Of-fleers above the Register and Receiver are concerned. And in these sales, as well as in the others, the President, through his appropriate Secretary, or the Commissioner of the General Land Office, exerts this control.

If upon the apparent ground of illegality in an entry, a valid one should be thus set aside, and the same land afterwards sold, in such case necessarily illegally sold, to another person, and patented to him, that person, as we have already remarked, would hold the legal title thus received, charged with the trusts that were upon it: and the injured paity would be thus driven into a court of equity, where he would be allowed to set up his equitable title (founded upon his lawful claims to the land, as against the Government,) against the legal title thus illegally obtained. And the chancery courts, supposing such jurisdiction to be within the scope of » the general action of a court of equity, affords relief in accordance with the settled principle of that court, as applicable to its general action in affording relief. Such seems to be the ground upon which this jurisdiction rests. Latterly, it has been very often invoked in cases of pre-emption right claimants. And doubtless, this has been stimulated, in no little degree, by the liberal interpretation which the Supreme Court at Washington has felt bound of late years to give to the laws of Congress, out of which these claims grewq in favor of this class of claimants. And scarcely less in the opening, to its greatest width, the door to this jurisdiction.

In earlier years that court said, in the case of Polk's Lessee vs. Wendell, 5 Wheaton R., p. 302, that “long experience had satisfied the mind of every member of the court, of the glaring im-policy of ever admitting an injury beyond the dates of the grant under which lands are claimed.” The cases of latter years would indicate that it had been found impossible under the law to uphold that policy.

What amount of evil, this latter current of decisions will cast upon the land States, and whether State legislation can sufficiently counteract it, remains to be seen. If it shall flow on, unchecked, a few years longer, it would seem inevitable that much of the confidence hitherto reposed in land titles derived from the Government, must be overthrown; and, as a consequence to be deplored, emigration to the land States cannot fail, in a like ratio, to be lessened.

'Upon allegations already indicated, ’Wynn invokes this jurisdiction ; and, to establish his own equity, seeks to show that the sale to Hemphill, which was perfected by the grant to Garland as his assignee, was illegal, upon the ground that the pre-emption right allowed to Hemphill under the law of 1830, was not a valid one; and, consequently, no senior claim appearing in 1838, the land in controversy was in law unappropriated public land, to which his own claim under the law of that year attached.

If this was the true condition of the land at that time, his case for relief would have been made out, inasmuch as there is no dispute as to Wynn’s cultivation and possession by personal residence, and as to his proof and payment within the time, under the provisions of the law under which he claims.

And this, although the Government, through its Executive branch, had allowed and sanctioned by grant, the claim of Hemp-hill under the law of 1830, in accordance with the decision, as to the facts of the cultivation and possession of the latter, of a tribunal by whose decisions it had agreed to be bound in the disposition of unappropriated public land, because the tribunal had no power to decide, and the President no power to sanction by grant, that Hemphill had a pre-emption right to lands to which Wynn had, by law, a vested right.

The objection that Hemphill was under the age of twenty-one years, and was not the owner of the improvement, is not sustained by the testimony. That founded upon his sale of the improvement and removal to Texas, and his taking the oath of allegiance to Mexico, is invalid. Continued residence not having been required of him, under the law of 1830, either to keep in life his pre-emption claim, as between himself and the Government, or as between himself and third persons, as a means of notice to them. And his having become an adopted citizen of a foreign Government, did not work a forfeiture of any rights of his, vested by law, while a citizen of our own, although he had afterwards left this country and taken the oath of allegiance to a foreign Government, with the intent and effect to expatriate himself, as we have held in the case of Wynn vs. Morris, decided during the present term.

The validity of the remaining objection, must be determined upon the evidence: that is to say, that the cultivation of Hemp-hill in 1829, and his possession in 1830, upon the foundation of which his claim to the pre-emption that was allowed him, vested, did not in fact extend to the tract of land in controversy, but was exclusively upon other adjoining lands.

And although we shall not in terms sift out the good from the bad, we shall, in effect, do so, in endeavoring to consider only that evidence which is competent and relevant in ascertaining this point of fact.

In considering so much of it, as is offered upon the part of Wynn, it is impossible for us, after making abatement on the score of credibility for so much of it as is attacked on that ground, to resist the conclusion that the cultivation in question did not, in the year 1829 and 1830, reach to the land in controversy.

Much of this testimony is from individuals who must have had the best opportunity, the nature of the case would admit of, to know the facts and circumstances to which they depose; and their testimony appears to have been given after the most careful inspection of the premises, with reference to natural objects, and actual surveys, which several of them witnessed. And after being thus enlightened, and their memory refreshed, they speak in confident and positive terms. And although there is some discrepancy among them in several particulars: mainly, however, as to courses and distances, measured by the eye, and not tested by the compass and chain, which, in terms, tend to conflict, yet all such is controlled by distinct expressions of the same witnesses, or to the utmost extent of the western li/iwit of the improvement in question, based upon an actual examination of tbe premises, which, as they state, afforded data to enable them to speak with certainty as to this, when taken in connection with courses and distances ascertained by the surveys, which most of them witnessed, and their previous knowledge of the locality.

The testimony of Waggoner, on whose supporting affidavit, together with that of Cryer’s, the pre-emption claim of Ilemphill was allowed by the Register and Receiver, if taken to be worth anything, either for sustaining their decision originally or overturning it now, is far more favorable to Wynn than to the defendant; but we think it utterly worthless, for any purpose, in point of weight on either side. Cryer’s testimony amounts to but a carefully expressed opinion by one who liad had a reasonable opportunity to be informed with fair accuracy of the matters about which he testified; and would be entitled to much weight in the absence of other testimony equally credible from witnesses who had had a better opportunity to be informed with a higher degree of accuracy. lie had never lived or worked on the premises, nor witnessed any of the surveys, nor compared notes with others upon the ground, in reference to natural objects, with which all had been more or less familiar, with a view to refresh his memory, and to abandon or reduce to greater certainty necessarily vague impressions, which he had fanned without such careful and minute examination. Almost all his answers indicate vagueness, and want of positiveness in his impressions.

Samuel Hemphill, the pro-emptor, who had never been on his foxmer improvement after the surveys were made by the Government, and thus informed himself whether any part of it extended to the land in controversy, made his affidavit, supported by that of Waggoner and Oryer afterwards; that in the year 1829, he cultivated fifteen or twenty acres, which he “believed, according to the map thereto annexed,” (which was a copy of the map in the Land Office, marked with the names of Wynn, Garland, and Mrs. Taylor, on several of the tracts,) to be on the tract of land in controversy. There is the t stimony by Yealoch, to the effect that lie saw Moore, the Government surveyor, run the line between the quarter sections of land in question, and that next east of it, in 1840, and plant the half mile stake in the prairie at the south end of the line between these two quarter sections, and that in the year 1842, that stake had been removed about 100 or 110 yards in a direction north-east from its original position: and by Edwards to the effect that he had seen the same line run seve-i ral times after the Government survey, by Jett and Conway, and the place for the half mile stake thereby ascertained, (which by other witnesses is shown to have been within a few feet of the spot where Moore planted it in 1840,) and that in the latter part of January, or the first part of February, 1843, Garland pointed out to him a stake in his field as a half mile stake, which he stated to him the surveyor had put there, and requested him (the witness) who was then his overseer, not to let the negroes knock it down, and to keep a mound around it, and that this stake, so pointed out to him, was fixed sixty or seventy yards east, and near fifty yards north of where Jett and Conn ay found the true place for the half mile stake. It is to be remarked, that whether this stake was removed by design, or had been accidentally knocked dovm in the cultivation of the land around it by Garland, and planted again in an improper place without any fraudulent intent, it is not made to appear that its improper location led any one astray as to the true line. Wynn does not complain of it in his bill as having led him to make the admissions he did, in his correspondence with the Commissioner of the General Land Office; Waggoner does not put his acknowledged mistake as to the cultivation of the land in controversy on this ground. On the contrary, he says, that the half mile stake to which he went, and from which he looked through the compass, previous to making his supporting affidavit, (which he afterwards ignored by his testimony,) was within a few feet of the true point as afterwards so often ascertained by surveys'; aud Cryer'does not admit that he was mistaken at all. Conceding it to be true, however, in point of fact, it may have had influence, as in that case it would have almost inevitably, in fixing the impressions upon Cryer’s mind, which unlike those made upon ~Waggoner’s, seem never to have been, removed, that the cultivation extended westward across the line on to the tract in controversy. Because, according to the whole testimony on the part of Wynn, the actual cultivation did extend westward to a limit within fifty or one hundred yards at most, of the true line between the two quarter sections of land.

And Brinlee, the only other witness who gives it, as his opinion, that the cultivation did extend westward beyond this line, thinks there was but about fifteen acres in all that did so; and that a part of this was upon the south-east quarter, though the larger portion of it was upon the land in controversy. Iiis opinion was founded upon a visit to the premises in December, 1847, in company with Garland, and he states that commencing at the section corner they came down south by the marks on the timber, until reaching the lane in the prairie land in cultivation, and having on that course arrived at the half mile stake, (so often mentioned) then in that lane, they fixed the compass, and he looked both north, and east and west, and upon this examination in connection with his knowledge of the locality, many years before, he based that opinion. It is manifest, therefore, that his opportunity for accurate information as to the extent of the cultivation westward, was far less than that of the witnesses who labored upon it in the years in question ; and who, besides, had the advantage in refreshing their memory by interchange of ideas, with those of equal information with themselves upon the ground, in reference to natural monuments, and visible remains of fences, houses, wells, &c., to none of which this witness refers as data for his opinion; although long absent from the locality on which such great changes had, in the meantime, been wrought by the opening of large plantations and the cultivation of prairie land, destitute of timber, where so soon every vestige of the natural production of the soil in its wild state becomes entirely obliterated, rendering it impossible for any one to know, from the appearance of the soil in its then condition, whether it had been cultivated a few years only, or a longer time, as one would be enabled to do in timbered land, where for many years there would be the remains of trees and other native growth. Hence, as little weight is to be attached to his testimony as to Cryer’s, if indeed so much. And all that remains to be considered, is the admissions of "Wynn contained in his correspondence with the Commissioner of the General Land Officer.

It is not pretended that Garland has based any act of his' upon these admissions of Wynn, which entitled hún to insist upon them against him by way of estoppel. And it is manifest that Wynn could not have made them, although deliberately made in writing and several times repeated, upon facts within his own knowledge; because the bill and answer show that although lie purchased from Jones in 1835, and at once took possession of the improvement purchased, and kept his slaves thereon thenceforward, and from that time occasionally made visits to the premises, he never actually became a continuous resident thereon, until about the year 1841, while Garland had been cultivating and extending the improvement, he had bought, adjoining, in the year 1834, from that time forward; and in February, 1841, as appears upon the face of the Government plats of survey, had some forty acres of the land in controversy enclosed within his plantation, and had been cultivating for some years the most, if not all of it, as the testimony seems to show. The parties up to that time, and for some time afterwards, perhaps for some two years after-wards, seeming to have been governed in their territorial claims as between themselves by some arbitrary line, that appears to have had its origin many years before, with those under whom they respectively claimed, when the locality had been regarded by the settlers as within the boundary oí Texas.'

If, therefore, there were any remains of old fences, or other objects to indicate with any probability the extent of the Hemphill improvemement westward, in 1829 and 1830, they were within the plantation of Garland, and not of Wynn, and were not likely to have attracted the latter’s notice. And when the surveys had been made, so much time had elapsed that these remains, under the influence of constant cultivation for so many years upon prairie land, so far as they were calculated te enable one to discrimate between such land cultivated for ten or twelve years, or for six or eight years only, must have been altogether obliterated. And it was not until then that there would be any reason to suppose that Wynn’s special attention would have been called to such remains beyond the limits of his own plantation, upon his casual visits there. And it being not until then that he had become an actual permanent resident, it is much more lilcely that he would have been led into a mistake, upon such a foundation, than even Cryer oí Brinlee. The only other sources of information left him, were hearsay, or the vague impressions of the neighbors, necessarily confused and unreliable from the nature of the soil upon which the cultivation was, and the changes made in the appearance of the locality by the improvements and cultivation in progress there, and the affidavits made in the Land Office in support of Hemphill’s pre-emption.

At best, the admission of a fact, when not under such circumstances as to work an estoppel against the party making it, is but evidence of the existence of that fact. And when, by other evidence, it is established beyond any reasonable doubt that the fact admitted really never’had existence, by witnesses who had the best opportunity, the nature of the case would admit of, to know whether or not it ever did exist, and it is at the same time shown that the party making the admission could not have known tlie fact admitted of his own knowledge, and had but hearsay to found his admission upon, it would he strange if that admission could weigh at all as evidence against the satisfactory testimony of witnesses who had the best opportunity to know tlie fact deposed to, and based their evidence upon their own personal knowledge.

Hence, we conclude that Wynn, having made out clearly by the testimony, that the cultivation and possession of Samuel Hemphill, in the years 1829 and 1880, did not extend to the tract of land in controversy, and no testimony having been produced to the contrary, sufficient in weight to create any reasonable doubt of the existence of that fact, thus established, we must consider it to be so established. The legal consequence is that the pre-emption right of Hemphill under the law of 1830, did not attach to the land in controversy for want of the cultivation and possession, required by that law.

And when the executive department, which had the power to sell the land to Hemphill only in accordance with law, sold this tract to him under the clear mistake of facts, that he had so cultivated and held possession, that department acted beyond the boundary of its power; and, consequently, as to all persons, who at that time could set up a better vested right to the land, founded upon the statute respecting the disposition of the public lands, as against the Government, that sale was a nullity. "Wynn was at that time in a condition to do so, by virtue of his claim to the land in controversy, under the law of 1838, and he preferred and insisted upon that claim, and did all for its support that the law out of which it grew required of him. Here, then, was a case of co-temporaneous conflicting equitable claims to the same tract of land, and both, as against the Government, and preferred at the same time; it being immaterial, as to this latter, whether the prosecution of the one or the other had been in point of fact, first commenced in the District Land Office ; because, before either was confirmed by final action of the Executive Department, they were both preferred to that department. And the executive, instead of pursuing the usual course in such cases, when the laws of the State will admit of it, of granting the certificate of purchase to on-e of the parties, and withholding the patent until the judiciary should have decided which had the better title, decided this judicial question for itself, and set aside the entry of Wynn and confirmed that of Hemphill, by the issuance of the patent to his as-signee. Although that decision, as against the Government, may be conclusive in favor of Hemphill’s claim, it cannot conclude the rights of Wynn as against Hemphill’s claim, who doe3 not claim, as against that, under the Government, but aaamst it. The claim of Wynn had already vested in the land before there was any pretence that it had been appropriated to Hemphill by th & forms of law, and before it had ever been appropriated to him at all in point of fact, as we have seen from the testimony. And, therefore, even supposing that although Hemphill never did in point of fact cultivate according to the requisites of the law of 1880, and thereby acquire a valid pre-emption right, nevertheless as the Register and Receiver decided that he did, and thus concluded the Government in his favor on this point, he would thereby be entitled to the land, not only as against the Government, but as against all persons, and henceforward that would be such an appropriation of the land under the forms of law, as would prevent any future pre-emption right, afterwards to arise, from attaching to thesame land; because, it would be not thenceforward unappropriated public lands. Yet, this could only be so in a case where there was, at that time, in existence, no valid pre- eruption right to the same land ; because, otherwise, it would be to say that the Government could grant a pre-emption right to land that was already appropriated. In other words, that it could give one mail a pre-emption right upon the lands of another, or to which that other had a vested legal light, which no one will suppose to be within the power of- the executive, although sanctioned by the mighty potency of a decision of the Register and Receiver.

It is beyond controversy that such a valid right of pre-emption did exist in Wynn, at the time when the executive decided in favor of Hemphill upon the ground of his supposed cultivation upon the tract of land in controversy, which is now shown by the evidence to be a clear mistake as to the identity of the tract of land, and as to which point no contestation whatever was ever had.

And the same department decided against "Wynn, at the same time, simply and expressly upon the ground that the claim of Hemphill, under the prior law of 1880, had attached to the land in controversy, and was thus an insuperable obstacle in the way of Wynn’s entry.

If tbe judicial power can afford Wynn no redress in tbis case, a great wrong must go without remedy. But upon no other ground can he be supposed to labor under any disability in this respect, not common to ordinary entries, than that his rights in the premises are in some way at the mercy of the Executive Department, whether that department proceeded, in reference to them, in accordance with law, or to the contrary; and lienee, Ins common right to look to the judiciary for redress for wrongs is thereby abridged.

That idea is to find support alone from the provisions of the pre-emption laws in reference to the action of the Registers and Deceivers upon these claims when preferred to them for allowance.

If it could be supposed that Congress ever designed that the decisions of these officers in such cases, were to be final upon the rights of adverse claimants, as between themselves, when both claimed the same tract of land, or against the Government, there is certainly no evidence of it in any provision of these laws for contestation between such parties as to such rights. And when pre-emption rights are regarded in the light of the decisions of the Supreme Court at Washington, in their true nature and character as defined by that court, it would seem strange that Congress should have ever designed that such substantial and important rights should be excluded from judicial cognizance and left to be finally passed upon by such a quasi court, armed with such imperfect means to administer justice in the premises.

It is true, that practically, under instruction from the Commissioner of the General Land Office, the Register and Receiver do in some cases decide upon conflicting claims, as between adverse claimants for the same tract of land, but this is only done incidentally in passing upon the claim of each claimant as between him and the Government, and as a means of enlightening the executive, as to whom it is apparently most proper to allow the entry and issue the patent, under the ordinary condition of the sales of the public land, that they are to be conducted by the Government in accordance with law.

Hence, there is but little reason to- suppose that Wynn took bis pre-emption right under any contract with the Government, that he would not resort to the judiciary to assert his rights against a third person, who might obtain the legal title to the land in which his pre-emption right vested, either by fraud or mistake. That was not one of the provisions of the law under which he derived his right, and a court of equity would be impotent to suppress fraud if it could not give him relief in such a case upon the ground of mistake merely; because, otherwise “it would be to allow an act, originating in innocence, to operate ultimately as a fraud, by enabling the party, who receives the benefit of the mistake, to resist the claims of justice under the shelter of a rule framed to promote it.” 1 Story’s Equity 155. It is “to prevent manifest wrong and to suppress fraud,” (Ib. 166) that courts of ecpiity grant relief in cases of mistake.

In the light of these views, we think Wynn entitled to relief upon this ground; and hence, it is unnecessary to examine the points made as to the sufficiency of the allegations of his bill, and the admissibility of some of the testimony as to the charge of fraud, in procuring the pre-emption right of Hemphill to be proved up ; and will proceed to decree to him all such proper relief as is included in his prayer, and is within the scope of his bill.

Mr. Chief Justice English said: I fully concur in the conclusion of the opinion just delivered in this case, that Wynn is entitled to the relief sought by the bill.

There are some portions of the theory of the opinion, however, as to which I deem it unnecessary to express a concurrence or dissent. My conclusion, that Wynn is entitled to the relief sought, is based upon the following predicates :

1. The authorities cited by the counsel for the parties, abundantly show that the decision of the Register and Receiver, upon the pre-emption claim of Hemphill, is examinable for fraud, if not for mistake.

2. Sufficient indications of fraud in proving up the Hemphill pre-emption, are deducible from tbe evidence, to warrant a court of equity, in a direct proceeding like this, to open the decision of the Register and Receiver.

3. The proof in the cause establishes the fact, beyond any reasonable doubt, that the cultivation of Hemphill did not extend to the tract of land in controversy; and, therefore, his claim to pre-emption was unfounded.

4. "Wynn acquired á valid pre-emption right to the land, under the act of 1838.

So far as the opinion endorses the decision qf the majority of this court in Wynn vs. Morris & Taylor, I dissent; remarking however, that the effect of the abandonment of the country by Hemphill upon his claim to pre-emption, is not properly in the ease, as the claim turns out to have been unfounded.


source: Caselaw Access Project

author: Mr. Justice Walicer

license: Public Domain

text:
    Clark adx. et al. vs. Shelton
    Wlioro suit is 'orouglifc against an administrator, and a judgment obtained for a debt due by tbe intestate, it is tbe duty of tbe administrator, under tbe 98tb section of tbe statute, (Digest, chap. 4,) to return suoli claim to tbe Probate Court for classification ; and no other presentation or notice of bis claim is required of the creditor; nor approval by the administrator.
    In a chancery suit by a creditor, against an administrator’, charging that assets had come to his bands, which be had not accounted for, the securities in tbe administration bond may bo made parties, and a decree rendered against them on a recovery against the administrator.
    'The settlements made in the Probate Court by tho administrator, are conclusive between the parties interested in tbe estate, so far as the court had jurisdiction; and can only bo impeached in a court of chancery upon allegations of fraud in the settlement. (Dooley vs. Dooley, 14 Ark. 122.)
    where fraud is alleged in the settlements of an administrator — as that the intestate sold property, and took notes therefor, payable to his wife, (afterwards his adminis-tratrix) to hinder and delay his creditors; that she received the money, but had not accounted for it as assets' — the Probate Court has no jurisdiction to decide such question of fraud, and the creditors of the estate may well seek relief in a court of chancery.
    Upon a creditor’s bill, it is error for the court to decree the payment in full of the debt of the pursuing creditor, without giving opportunity to all tho other creditors to bring in their claims and receive their proportion of the amount recovered — they paying their proportion of the expenses.

      Appeal from Hempstead Circuit Court in Chancery,

    3Ion. JoiiN QuilliN, Circuit Judge.
    "WatKINS & Gallagher, for appellants.
    The sureties of Mrs. Clark, on her administration bond, were improper parties. The remedy against them on the bond, was purely of legal cognizance. Outlaw vs. The Governor, 5 Ark. 468/ Jones vs. The State, 14 Ark. 171. Tiie Probate Court is the forum where the alleged default of the administrator, for which they are to become liable on the bond, must be ascertained and established.
    The decree is erroneous, because the demand of the complainant is to be paid in full; whereas, after the decree had professed to establish the fraudulent nature of the transaction, it would enure to the benefit of all the creditors.
    It does not appear that the claim ivas ever probated. It was, in any event, the duty of the claimant to have taken his claim before the Probate Court for classification.
    The matter in regard to the note of Hannah & Baldwin, was res aeljudioata. It had been settled by the adjudication of the Circuit Court, on the appeal from the Probate Court; and the complainant is concluded by the adjudication of the Circuit Court upon the appeal, and which must stand forever, not being appealed from or reversed on error.

      The Probate Court is a court of limited, but not of inferior jurisdiction, (Borden vs. The State, 6 Eng. 519,) and had the most ample and plenary power to investigate and determine the issue presented by the exceptions of the appellee to the settlements of the administratrix. The decision and all questions involved in the result, and which might or could have been decided, are forever conclusive upon the parties. See 2 Smith’s Leading Oases, p. 424 ; Duchess of Kingston’s cáse, and authorities cited.
    PiKE, for the appellee.
    That the finding and judgment of the Circuit Court in the case before them on the exception, was no bar to this proceeding in chancery, is obvious, on two or three grounds.

      First. It could not be conclusive, in any event, unless it was a finding and judgment on the facts, of want of consideration for the note, and of fraud or fraudulent intent as to creditors.
    To make a former judgment a bar, it must appea/r that the trial was on the merits. If the real merits of the second action have not been decided in the first, the prior judgment is no bar. Hitchin vs. Campbell, 2 W. Bla. 827 / 3 Wils. 304 ; Sintzmick vs. Lucas, 1 Esp. 43 / Estill vs. Tamil, 2 Yerg. 467.
    It is conclusive only as to the facts directly and distinctly put in issue, and the finding of which must have been necessary to uphold the verdict or judgment. Spooner vs. Davis, 7 Pick 147/ Smith vs. Sherwood, 4 Gown. 276 / Dmnison vs. Hyde, 6 Ooivn. 508 / Hopldns vs. Lee, 6 Wheat. 109.

      Second. The decision of the Circuit Court was made upon a summary application to the Court of Probate; and such decisions are not considered so final and decisive as to furnish a bar to another and further discussion of the question. The question of fraud, and the annulling of fraudulent conveyances and assignments and the enforcement of secret trusts, are peculiarly within the jurisdiction of courts of equity, and courts of probate, from their peculiar frame and constitution, and the narrow and limited scope of their powers, are wholly incompetent to deal with them. Brorn-

      ley vs. Holland, 5¡¡ Ves. 610j 7 id. 3; Oreathead vs. Bromley, 7 T. 11. 450 ; Angelí vs. Iladden, 21£eriv. 163 ; 3 PMll. on Ho. (Oowen da Hill's notes)p. 825.
    "We submit that the Probate Court did not decide the essential questions in this case, because it had no jurisdiction or power to do so. State vs. Beigart, 1 Gill 1.
    The note was received by Mrs. Clark, not after his death, in which case, if she had not accounted for it, it would have been the proper subject of an exception. But it was received by her in his lifetime; and the question whether she was entitled to it was one peculiarly within the jurisdiction of a court of chancery.
   Mr. Justice Walicer

delivered the opinion of the Court.

This is a suit in chancery, brought by Shelton against Huldah Clark, as the administratrix of Benjamin Clark, deceased, and "William Trimble, William Moss, and Thomas Davidson, her securities upon the administration bond.

The complainant alleges in his bill: That on the 10th of October, 1840, in the Hempstead Circuit Court, he obtained judgment against Benjamin Clark for two hundred dollars, with interest from the 30th of April, 1830, and costs : That to hinder and delay-the collection of this judgment, Clark sold a plantation to Joel W. Hannah and Samuel Baldwin, after the judgment was obtained and whilst it was in force, for $1800, and took notes or bonds for the purchase money, payable to his wife, Huldah, without any consideration from her : That afterwards, Clark died, leaving the said Huldah his widow, who, on the 29th of February, 1845, took letters of administration, and gave bond with her co-defendants as securities: That she had not charged herself, as administratrix, with the plantation, or the money received for the same: That the personal estate was appraised to $985 75 and, except the slaves, was, by a fraudulent arrangement, bought in for her use, for the sum of $37 65: That Clark owned two slaves worth $400 and $200, of whom she had possession, and had converted their labor to her own use, without having charged herself with hire; there was, also, $32 worth of property appraised, which she retained: that the claims allowed against the estate, amounted to $877, and that Shelton brought suit on the judgment obtained in 1840, against Clark; and, at the November Term, 1846, of the Hempstead Circuit Court, obtained judgment against the said Iluldah, as administratrix : That no just and legal settlement had been made.

The prayer of the bill was for an account, and that the admin-istratrix should be charged with the $1800, the price of the ¡plantation ; the appraised value of the slaves and their hire, and the appraised value of the personal property ; that the estate should be settled, and all the claims against it paid.

Moss and Davidson demurred to the bill, which was overruled, and ITuldah Clark answered.

She admitted the sale of the plantation, and that a bond for $1500 was taken directly to her; says that $100 of that amount was paid to Clark, leaving $1400, which she admits that she collected; claimed it as her own; denied that the bond was-made payable to her to hinder, delay, or defraud creditors, but because Clark had, before then, acquired possession of property through her of greater value than $1500 and used it; and that for this consideration, and because of her dower interest in the land, the bond was executed to her.

She states that she made a settlement with the Probate Court, which she relies upon as conclusive against the complainant: says that he excepted to the account, amongst others, for the reason that she had not charged herself with the item of $1400, the money so received as part of the price for the land, as well as for the reason that hire had not been charged, and for improper credits claimed. And that upon appeal to the Circuit Court, a trial, da novo, was there had, and it was held that she was not properly chargeable with the $1400, and that upon a re-statement of the acccount for settlement, iu conformity with the decision of the Circuit Court, a final settlement was made : That the assets have been distributed.

She admits that slie retained the slaves in her own hands, because she disliked to sell them, and preferred charging herself with the appraised value. She admits that her son bought in the property at less than its value for her: says the sale was open, after notice, and there were many persons present.

The case was hoard upon the bill, answers, and exhibits, and the records pleaded in the answer to the bill.

The court below decided that the $1400 were properly assets of the estate, and ascertained the amount of the complainant’s claim to be $531 26, and decreed in favor of the complainant for the same, to be paid by the administratrix, if to be had by recourse against her, if not, then against the securities.

It is first objected by the appellants, that the complainant never submitted his claim to the Probate Court for classification and allowance; and, therefore, lie has no right to an equitable account and distribution of assets.

If this claim had been probated, under the 88th section, Digest, ch. 4, in which it is made the duty of the claimant to present his claim to the administrator for allowance, there would be much force in the objection ; but the claim of the claimant required no presentation to the administratrix for her approval. It is a claim provided for under the 87th section, which provides, that all actions commenced against the executor or administrator, after the death of the testator or intestate, shall be considered as claims legally exhibited against such estate from the time the action is commenced, and shall be classed accordingly. And the 98th section makes it the duty of the administrator to class such claims with others, and make a return thereof to the Probate Court. The 99th section, which requires of the claimant to file his claim in the office of the Probate Court for classification, evidently has reference to claims presented for allowance under the 88th section ; because, the 99th section makes direct reference to claims that have been “approved and allowed” by the administrator, and requires the same, together with a copy of the notice served upon the administrator, to be filed, &e. This notice and appro,val, and an allowance by the administrator, are all provided for in the 98th section, and belongs to the class of claims therein mentioned: but with regard to claims founded on suits commenced against the administrator in the Circuit Court, neither presentation, notice nor approval are required, but the suit is itself notice and presentation, and the judgment of the court an allowance of the claim.

Ve think, therefore, that this objection cannot prevail.

It is next objected that the securities are improper parties to this suit; that they can only be reached by a suit at law upon their bond. We find no authority to sustain the grounds assumed by counsel; nor does there appear to be any good reason why they should not be sued jointly with the administrator for a breach of trust. She entered into bond to perform that trust. They became securities that she would do so, or that they would pay damages, &c. They can make as good a defence in chancery -as at law, and after the court has decided upon the extent of the liability of the principal, there would seem to be no good reason for requiring a suit at law upon the bond against the securities, when by making them parties to the suit in chancery, unnecessary delay and expense would be avoided. All of the objections urged by the counsel in this case, were presented in the case of Ennis vs. Smith, 14 Howard S. C. R., 418, and were overruled by the court.

Conceding the claim to be valid and properly presented for payment, the next question is, can the complainant re-investigate the accounts of the administratrix, approved upon final settlement with the Probate Court.

This can only be done in a court of chancery upon the allegation of fraud in the settlement of such account supported by the affidavit of the party making such allegation. Digest, sec. 111, chap.4; Dooley vs. Dooley, 14 Ark. 122.

So long as the settlement stands, it is conclusive upon the parties, and definitely fixes the extent of the liability of the admin-istratrix for assets; go far, at least, as the items of charge or credit were proper subj ects for investigation. But it is insisted that tbe settlement in this instance is not binding upon the complainant, because the item, if charged against the administratrix, involved a question of fraud between the intestate and herself, which had first to be determined before the item could be charged as assets; and that the Probate Court had no jurisdiction over the same. But that in order to determine the question of fraud, resort should be had to a court of chancery, where all the parties may be brought forward, and a full investigation hacl.

There is no provision made by the statute for trying an issue of this kind before the Probate Court, as between the administra-trix and creditors, where the administratrix asserts title in herself to estate supposed to be assets. The contest upon exceptions to an account for final settlement, is narrowed down to an account of assets with which the administratrix stood charged, or which came to her hands as such, or which she should have received and accounted for, but not to property or estate claimed and held adversely. That never becomes assets until so adjudged. The administrator may be held accountable for neglect of duty in not reclaiming and charging himself with property or effects belonging to the estate, but which is held by adverse title; but this must be done in a court of competent jurisdiction for that purpose.

This question came up in Forniquett vs. Perkins, 7 How. S. C. Rep. 160, and it was there held that the Probate Court had no jurisdiction, whatever, in a case like the present, and that no decision made by that court would bar a re-investigation of the same question in a court of chancery.

In the case of Forniquett vs. Perkins, it seems that Perkins made a settlement with Forniquett and wife, and took their receipt in full discharge and payment of the whole of the estate in his hands. Subsequently, Forniquett and wife filed their petition in the Probate Court for the purpose of setting aside the settlement, and charging Perkins with spoliations to a large amount, which had been concealed from petitioners, and not taken into the account for settlement. Perkins, the administrator, in his answer, denied the fraud, and insisted upon his receipt as a discharge. By consent of both parties, this issue was taken to the district court to be tried, and the decision made in favor of Perkins.

After this, Forniguett cmd wife, filed their bill in chancery in the Circuit Court of the United States, setting up therein the same cause of complaint as that set forth in their petition to the Probate Court, and which had been decided against them, referred to the former decision, and protested that it was not binding upon them, because the Probate Court had no jurisdiction of the subject matter at issue.

The defendant relied upon the former adjudication of the case in bar of the action. Judge Dahiels, who delivered the opinion of the court, cited authorities and held that, the Probate Court had rio jurisdiction of the matter at issue, but that, inasmuch as by agreement of parties, the case had been removed to the district court, a court of competent jurisdiction, he would hold its decision conclusive.

Such was, also, the decision of the Supreme Court of Pennsylvania in Trett's Appeal, 4 Watts & Serg. 433.

Independent of these, authorities, which would seem to be decisive of the question, is that of our own court: Moss vs. Sandefur, 15 Ark. 381, in which it was held that the Probate Court had no jurisdiction to try and determine contested rights to property between the administrator and third persons.

Adhering to the principle settled in Moss vs. Sandefur, we hold that the Probate Court could rightfully exercise no jurisdiction in regard to the alleged fraud between the administratrix and her intestate ; and, consequently, that the settlement made with the Probate Court did not preclude the right to sue in chancery for the purpose of setting aside the fraudulent transfer of estate to the administratrix, and to subject it to the payment of the creditors of the estate. And although we are far from being satisfied that any decision ever was in fact made upon the question of fraud by tlie Probate Court, or by the Circuit Court upon appeal, yet, we deem it a matter of no importance to investigate it; because, as we have held that the Probate Court had no jurisdiction, it follows that no decision made by it would bo valid.

This may be considered a creditor’s bill brought by the complainant, one of the creditors of the estate of Ben. Clark, for himself and for all of the creditors. The practice, on account of convenience, may be considered as well settled. Daniel Chancery Pleadings & Practice, page 284. All of the creditors arc specially referred to in the bill. It is alleged that the payment of the note was made payable to tbe administratrix, to defraud all of the creditors: an exhibit of their respective claims allowed, with date and amount, is made. They are all just claims, now due and unpaid, as well as complainant’s ; that the administratrix refuses do pay them, with a prayer that the court of chancery may take jurisdiction of the estate, charge the administratrix with the sums she has fraudulently withheld, for the benefit of complainant and tbe other creditors, and that such creditors be jointly charged with the costs and expenses of this suit; that payment be made by the administratrix to thorn, and each of them, and in the event that she fails to do so, that the securities be decreed to pay, &c.

'Upon tbe death of the intestate, his estate became at once charged with the payment of all of his debts, to be paid under our statute according to class, pro rata. We think the bill sufficiently comprehensive to protect tbe rights of all the creditors; and without going into a minute examination of the facts, we may say that the answer, as it sets up a right to the money, which is admitted to have been received, as charged in the bill, is altogether unsustained by any proof that the notes were made payable to lior upon a meritorious consideration. If, as she alleges, it was in consideration of property received by Clark, by virtue of his marriage, it devolved upon her to show the facts — which she has failed to do — which loaves the allegation, in effect, admitted.

"We think, therefore, that the court below properly decreed that the $1400 were assets in the hands of tlie administratrix, and should be accounted for as such; but wo can see no sufficient reason why the claims of the other creditors should have been overlooked, or why a just and fair settlement of the estate (which was properly before the court for settlement) was not made. It is true, that so far as the settlement with the Probate Court was made, touching matters within its jurisdiction, it was, unless set aside for fraud, by a direct proceeding in chancery, conclusive; but there was, nevertheless, no reason why, as between the creditors of the estate, the whole of the assets, as well those found to be due upon the settlement, as the $1400, should not be considered as one fund, out of which to pay all the claims. To charge the several claimants with the amounts received upon their claims, upon distribution of the assets under the settlement, and to divide the assets amongst the creditors according to the statute, .giving to the complainant’s claim a place in the classification, as of the date of the commencement of the suit, upon which judgment was rendered. By doing this, all of the claimants would have been placed upon equal footing, and should, in like proportion to the benefits received, have borne the expenses of the suit.

But it seems that the court below made no provision whatever for the other creditors. This, at least, in the first instance, should have been done, unless the other creditors had formally declined to incur the expenses, and take the benefits of the decree. If, upon day being given for that purpose, the other creditors should decline or neglect to come in as parties to take the benefits of the decree, then no doubt the relief granted, in this case would have been proper; but such is not the nature of the decree. It must be set aside, and the cause remanded to the court below with instructions to enter up a decree in conformity with the opinion herein delivered, taking an account as well of the amount of the assets reported upon final settlement, as the sum of $1400, the sum heretofore unaccounted for, and after charging the other creditors with, sums received upon the distribution of assets, to proceed, according to the statute, to ascertain the amount due to each creditor, and decree accordingly, upon condition that he comes in, by a day given for that purpose, to take the benefits of the decree ; and, in the event that the other creditors, or any of them, fail to do so, that then the sum or sums so decreed, be applied, upon like equitable principles, to the benefit of those who come in to share the expenses and advantages of the decree. That costs be decreed in the court below against the defendants, and in entering the decree, an account shall be taken of the expenses of the complainant, including his attorney’s fees in prosecuting this suit, and each of the creditors charged with his due proportion thereof, according to the amount of his claim against the estate.