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    Lessee of the Trustees and Treasurer of Original Surveyed Township No. 1, Range 19, of the Chillicothe Land District vs. John Campbell and others.
    Where, under the act of Congress, of May 20th, 1826, to appropriate Jands for the support of schools in certain townships, proceedings are ordered by the Secretary of the Treasury of the United States, a tract is designated, withdrawn from entry, and finally selected by the Secretary, a title passes, upon which the trustees and treasurer of the original township may maintain ejectment, notwithstanding the Register of the Land Office, without authority from the Secretary, may have permitted a subsequent entry.
    This is a Writ op Error, directed to the Court of Common Pleas of Lawrence County.
    The action below was ejectment, brought to recover the south east quarter of section fifteen, township three, range eighteen, in the Chillicothe Land District.
    The case was submitted to the Court, upon the following agreed statement of facts:

      The parties in this suit, by their counsel, submit the case to of the Court upon the following agreed statement facts, viz :
    That the original surveyed fractional township-No. 1, range No. 19, of the Chillicothe Land District under and by virtue of the act of Congress passed on the 20th of May, A. D. 1826, entitled “ an act to appropriate lands for the support of schools in certain townships and fractional townships not before provided for,” was entitled to one hundred and sixty acres of land for the support of schools therein. That on the 24th. of Mayj A. D. 1826, the Commissioner of the General Land Office issued a circular addressed to the Registers of the several land offices in the United States, of which the paper hereto annexed marked (No. 1,) is a true copy; one of which circulars was by him, then transmitted to the Register of the Chillicothe Land District. That on receipt of said circular by said Register, he addressed a letter to the commissioners of the county of Lawrence in the State of Ohio, within which county the said township No. 1, range No. 19 is situated, requesting them to make and forward to him a selection of the lands appropriated by that act for the fractional townships within said county, for the purpose of being by him transmitted to the General Land Office, as selections under said act. That thereupon, on the receipt of said letter of said Register by them, the board of county com-' missioners for said county of Lawrence, appointed and employed an agent to select a tract of land for said township No. 1, range No. 19, who proceeded to discharge that duty and was paid by them for his services. That said agent so appointed and employed, after making a careful exploration of the lands of, the United States in said Chillicothe District, which were then unsold therein, and subject to entry at private sale, chose and selected the south-east quarter of section No. 15, township No. No. 3, range No. 18, as the school land for said township No. 1, range No. 19, and returned the same to said board of county commissioners. The said quarter section so selected contains one hundred and sixty acres of land, situate in said county of Lawrence, and is the land now in controversy in this suit. And thereupon on the return of said land to them so selected by said agent, the said commissioners for said county of in their said capacity of commissioners, on the 19th of August, A. D. 1826, addressed a letter to the Register of the said Chillicothe Land District advising him of the selection aforesaid. A true copy of which letter is hereto annexed, marked (No. 2.) Which said letter was, at the date thereof, transmitted to the Register of said Land Office, the original of which still remains on file in said land office. That sometime between the receipt by said Register of said last named letter, and the 23d of October, A. D. 1828, an abstract or list of lands selected for schools in said Chillicothe Land District, under the aforesaid act of Congress, was transmitted by said Register to the Commissioner of the General Land Office at Washington City; which said list so transmitted embraced the said' south-east quarter of section No. 15, township No. 3, range No. 18, as the tract of land selected for said fractional township No. 1, range No. 19. On examination, at the land office, of the list of lands so returned for said Chillicothe District, it was found that for some townships a greater quantity of school lands had been selected than they were by said law entitled to, and that for some, a less quantity had been returned than they were entitled to, and thereupon the Commissioner of the G eneral Land Office, by letter bearing date on the 23d of October, A. D. 1828, returned the said list to said Register with instructions to make the necessary corrections, and return the same when so corrected to the said General Land Office. In the said original list, the quantity of land returned for the said fractional township No. 1, range No. 19, was correct, and needed no correction. The Register of said land office having made the necessary corrections of said list on the 8th of June, A. D. 1831, and the 4th of August, A. D. 1831, reported the corrected selections for said land district to the Commissioner of the General Land Office ; in which last mentioned reports, the said quarter section originally selected for township No. 1, range No. 19, was returned without alteration. On the 30th of August, A. D. 1832, the then commissioner of the general land office addressed a circular to the Registers and Receivers of the several Land Offices in the United States, on the subject of said school lands granted by said act of the 20th of May, A. D. 1826, which was forwarded at that time to the Register and Receiver of the said Chillicothe Land District. A true copy of which marked (No. 3,) is hereto annexed. In that circular certain general rules were prescribed for the government of said land offices, one of which was in these words, viz: “ The quantity of school land selected for a township is to be located within the limits of such township ; provided, a sufficient quantity of good land exists therein. If you are satisfied that a sufficient quantity of good land cannot be found therein, the selection is to be made in the nearest adjacent township wherein good land exists.’’ The said quarter section so as aforesaid selected for said township No. 1, range No. 19, was not within that township, nor was there good land therein from which to select it, nor was it in the nearest adjacent township; but in a township adjoining to the' nearest adjacent township. That at that time there was unsold land in a township adjoining said fractional township No, 1, range No. 19, out of which the school land for said township No. 1, range No. 19', might have been selected ; but said unsold land, in said adjoining township, was of much less value than the se-lection actually made and returned as aforesaid, which contains valuable mines both of Iron Ore and Stone Coal, and immediately adjoining to which, a large furnace for the manufacture of iron, has since been erected and put into operation by the defendants. That the proprietors of said furnace, of which Robert Hamilton herein after named was one, had knowledge of the fact, that said quarter section in controversy had been selected as aforesaid as the school land for said township No. 1, range No. 19, under said act of Congress. That prior to the entry hereinafter named, the said Robert Hamilton had applied to the trustees of said township to purchase said land of them, which was declined. That he had also applied to the Land Office at Chillicothe to enter said land, where he was informed that it had been selected for school lands, and on that account withheld from sale. That the Register of said cothe Land Office on the 7th of March, A. D. 1833, addressed a letter to the then Commissioner of the General Land Office, a copy of which marked (No. 4,) is hereto annexed. That the Commissioner of the General Land Office on the 19th of March, A. D. 1833, addressed a letter to the Register of the said Chillicothe Land Office, in reply to the last named letter. A true copy of said letter of the 19th of March, 1833, is hereto annexed marked (No. 5). That thereupon the said Robert Hamilton, for himself and the other defendants to this suit, with the assent of said Register, on the 8th of April, A. D. 1833, entered and paid for said quarter section of land now in controversy, and took from the Register of said land office a certificate of purchase in his own name; but for the joint benefit of himself and the defendants in this suit. A copy of which certificate of purchase marked (No. 6,) is hereto annexed. The said register never selected another tract of land for said township No. 1, range No. 19, nor was any other land ever selected in lieu of said quarter section; but in the year A. D. 1836, the said Register again reported said quarter section for the use of schools in said township No. 1, range No. 19, as hereinafter stated.
    The above named entry by said Robert Hamilton coming to the knowledge of the school trustees for said fractional township No. 1 range No. 19, at their instance complaint thereof was made to the Secretary of the Treasury of the United States, to whom the correspondence on the subject of the selection of said tract of land then in the General Land Office, with a letter to him from the Commissioner of the General Land Office, dated January 9th, 1834, was submitted for his decision thereon ; a copy of which last named letter, marked No. 7, is hereunto annexed. The said Secretary of the Treasury, by letter dated on the same 9th of January, 1834, (addressed to the Commissioner of the General Land Office) selected the said quarter section of land now in controversy, for the support of schools in said township No. 1, range No. 19, said act of Congress. A true copy of which last named letter, marked (No. 8,) is hereto annexed.
    On the 20th of June, A. D. 1836, the Register of the Land Office at Chillicothe addressed a letter to the Commissioner of the General Land Office, on the subject of the school lands appropriated by said act of Congress in that Land District; a copy of which, marked (No. 9,) is hereto annexed. To which last named letter, the said Commissioner of the General Land Office, on the 20th of August, A. D. 1836, addressed a reply of that date to the said Register, a copy of which, marked (No. 10,) is hereto annexed. I'n conformity to the directions of the last named letter, the said Register again reported to the said Commissioner of the General Land Office the said quarter section, as selected for the support of schools in said township No. 1, range No. 19, by letter dated July 16th, 1839, a copy of which, marked (No. 11,) is hereto annexed,, which was again confirmed, by the then Secretary of the Treasury, by letter addressed to the Commissioner of the General Land Office, dated August 31st, 1839, a copy of which, marked (No. 12,) is hereto annexed. After the selection, by the Secretary of the Treasury of the United States, of said quarter section for school land as aforesaid, the said Robert Hamilton was notified thereof by the Register of said Chillicothe Land Office, and informed that the purchase money paid by him for said quarter section of land would be refunded to him by the United States. A patent on said entry of said Robert Hamilton has never been issued, and is still withheld. If, upon the foregoing statement of facts, the Court shall be of opinion and adjudge that the said entry and purchase of said quarter section of land, by the said Robert Hamilton, was and is a valid and legal purchase thereof, the said selection thereof for the support of schools, as aforesaid, to the contrary notwithstanding, then and in that case, a judgment is to be entered up for the defendants, otherwise a judgment to be rendered for the plaintiff.

      The act of Congress referred to in the agreed statement, is as follows:
    “ Seo. 1. Be it enacted by the Senate and House of resentatives of the United States of America, That to make provision for the support of schools, in all townships or fractional townships, for which no land has heretofore been appropriated for that use, in those States in which section number sixteen, or other land equivalent thereto, is by law directed to be reserved for the support of schools in each township, there shall be' reserved and appropriated, for the use of schools, in each entire township or fractional township, 'for which no land has been heretofore appropriated.or granted, for that purpose, the following quantities of land, to wit: For each township or fractional township, containing a greater quantity of land than three quarters of an entire- township, one section ; for a fractional township, containing a greater quantity of land than one half, and not more than three quarters of a township, three quarters of a section; for a fractional township containing a greater quantity of land than one quarter, and not more, than one half of a township, one half section; and for a fractional township containing a greater quantity of land than, one entire section, and not more than one quarter of a township, one quarter section of land.
    Sec. 2. And be it further enacted, That the aforesaid tracts of land shall be selected by the Secretary of the Treasury, out of any unappropriated public land within the land district where the township for which any tract is selected, may be situated, and when so selected, shall be held by the same tenure, and upon the same terms, for the support of schools, in such township, as section number sixteen is or may be held, in the State where such township shall be situated.”
    The letters, circulars, &c. referred to in the agreed statement are as follows:

      (No. 1.)
    CIRCULAR.
    Treasury Department,

      General Land Office, May 24dh, 1826.
    Sir, An act having passed at the last session of Congress, to appropriate lands for the support of schools in certain townships and fractional townships not before provided for, you are authorized and requested to cause the selections to be made for the due proportion of land to which each township and fractional township in your Land District is entitled under the provisions of the act, and forward a list of such selections, designating the township or fractional township for which they have been made, to this office, to be submitted to the Secretary of the Treasury for his approbation.
    In making these selections you will observe the following rules:
    First. In all cases where the lands have not been offered at public sale, you will make the selection previous to the sale, and within the fractional township.
    Second. Where the lands have been heretofore disposed of, or offered at public sale, you may make the selection either within the fractions, if there be a sufficiency of unsold lands of good quality, or of any other lands, within your Land Disrict, which -have been offered at public sale.
    Third. In all cases where the lands have been offered at public sale, and where there are persons duly authorized by the State or inhabitants of a township to take charge of the school lands, it would be proper to permit such persons to make the selections, provided it be done in a reasonable time.
    With great respect, your ob’t. serv’t.
    GEO. GRAHAM.
    To , Register of Land Office at

      (No. 2.)
    Land Office at Chill'icothe,

      June 8th, 1831.
    Sir, Enclosed you will receive a list of the lands selected for school purposes, for certain fractional townships in this district.
    The list contains all the selections which have as yet been correctly made. The remainder will be reported so soon as the selections are made.
    I am, very respectfully sir, your ob’t. serv’t,
    THOMAS SCOTT.
    Honorable Elijah Hayward, Commissioner of the General Land Office, Washington City.
    Land Office at Chillicothe,

      August 4th, 1831.
    Sir, Enclosed you will receive a return of additional selec tions, made for school purposes for certain fractional townships in this district.
    I am, very respectfully sir, your ob’t. serv’t,
    THOMAS SCOTT.
    Honorable Elijah Hayward, Commissioner of the General Land Office, Washington City.
    (No. 3.)
    General Land Office,

      30th August, 1832.
    Gentlemen: The Act of Congress, passed on the 20th May, 1826, entitled “ An act to appropriate lands for the support of Schools in certain townships and fractional townships not before provided for,” authorizes the Secretary of the Treasury to make the intended selections on the following principles, viz:

      For each township or fractional township containing a greater 7uantity lar,d ^an three quarters of an entire township, is to say, more, than 17,280 acres,) one section is to be reserved.
    For each fractional township containing a greater quantity of land than one half, and not. more than three quarters of a township, (that is to say, more than 11,520 acres, and less than 17,-280 acres,) three quarters of a section are to be reserved.
    For each fractional township containing a greater quantity of land than one quarter, and not more than one half of a township, (that is to say, more than 5,760 acres, and not more than 11,520 acres, ) a half section is to be reserved.
    For each fractional township containing a greater quantity of land than one entire section, and not more than one quarter of a township, (that is to say, more than 640 acres, and not more than 5,760 acres,) one quarter section is to be reserved.
    In order to effect the intentions of this act, a Circular letter was addressed from this office on the 24th May, 1826, to the Registers and Receivers of the respective Land Districts, requiring them to make a report of such lands as they recommended to be reserved for the object' — but as that Circulár was not accompanied by a prescribed form for reports, there has been a diversity of forms adopted .at the different offices.
    Herewith is transmitted a supply of printed forms, agreeably to which you are requested to make your reports.
    As these forms are designed to'secure uniformity in all the proceedings under the law, both past and future, you are requested first to report to this office all the selections under the law, which have hitherto been reported from' your district, of the approval of which you have been advised by this office, and also those heretofore recommended, which have not yet been sanctioned.
    You are therefore requested to embrace in one report, to be marked No. 1, all the selections recommended up to the date of such report, discriminating those selections, of the approval of which you have been notified by this office, by a reference to the letter advising you of their approval:

      The Secretary of the Treasury directs, that you bear in mind that no selections are contemplated to be made in those cases where section No. 16 is entirely or partially interfered with private confirmed claims or donations.
    The following general rules are prescribed for your government:
    First. Where the lands have not been offered at public sale, the selections are to be made prior to the sale. The School Committees, Trustees, or other authority having official cognizance over the school lands, may be permitted to recommend the selections. To enable them to do so, it may be proper that you give public notice to those authorities, that on or prior to a certain day, which you will appoint, recommendations will be received from them of school selections for certain townships, which townships it will be necessary specially to designate in your notice. It is to be borne in mind, however, that no expense whatever will be incurred in the publication of such notices. If the school authorities should fail to make any recommendations, you will report your own selections.
    Second. The quantity of school land selected for a township is to be located within the limits of such township, provided a sufficient quantity of good land exists therein. If you are satisfied that a sufficient quantity of good land cannot be .found therein, the selection is to be made in the nearest adjacent township wherein good land exists.
    Third. Where a portion of the section No. 16 exists in a township, the balance of the quantity to which the township is entitled, under the act of 20th May, 1826, is to'be selected.
    Fourth. The selections of a section, three quarters of a section, or half section, for any one township, are to be made in one body of land, if practicable ;■ if not, in separate quarter sections. A less quantity than one quarter section is not to be taken. Fractional sections are to be excluded, except in cases where a portion of the section No. 16 exists in the township, and a selection has to be made of the balance of the quantity of land to which such township is entitled; and where the quantity cannot be located on a quarter or half quarter section, *n su°k cases onb> fractional sections or parts of fractional be taken, according to the legal subdivisions, to make up the deficiency in quantity, as nearly as practicable.
    ' Fifth. Fractional townships created by Indian reservations, are not to be understood as coming within the meaning of the act, as, when the township is completed, it will then have its proper school lands.
    Sixth. You will be careful to note, by a pencil mark, in your tract book, and on the plat of the townships, the lands recommended to be reserved under the act, and withhold them from sale, until you are officially advised either of their approval or rejection.
    When advised of the approval of such selections you will note, in ink, the fact of the reservation, slating the object, thus: In the tract book say, “ Reserved for Schools under act of 20th May, 1826, per letter of from the Commissioner of the General Land Office.” On the plat say, “ School Lands.” In case of the rejection of a proposed selection, you will not fail to obliterate the pencil marks on the tract book and plat.
    •Seventh. You will not fail to retain a copy of the report or reports rendered to this office, in the printed forms; and when advised of the approval, you are required to note the fact thereon and refer to the date of the letter communicating such advice.
    I am respectfully, Gentlemen,
    Your ob’t serv’t.

      To the Register and Receiver of

      the Land Office at

    (No. 4.)
    Land Office at Chillicothe,
    March 7th, 1833.
    Sir: On the 8th of June, 1831, and on the 4th of August, 1831,1 reported to your office the selections which had been recommended for school purposes, under the act of Congress,20th of May, 1826. Some of the selections then reportedDe were half quarter sections, and others did not lie either in township, or1 in the nearest adjacent township, where good land exists; which are not in accordance with the general rules laid down in your circular of 30th August, 1832.. I have withheld from sale all the lands selected, which were embraced in my two reports. You will, therefore, confer a favor, by answering the following interrogatories: 1st, Does the fact of my having reported them to your office, take them out of the general rule prescribed for my government; and if not, 2d, shall I consider all the selections heretofore made as void, and have them made in exact conformity to the instructions ?
    Yery respectfully, sir, your ob’t. serv’t.,
    THOMAS SCOTT.
    Honorable Elijah Hayward, Commissioner of the General Land Office, Washington City.
    (No. 5.)
    General Land Office,
    19th March, 1833,
    Sir : In reply to your letter of the 7th inst., on the subject of the school lands selected by you in 1831,1 have to state, that as there has been no action of the Department on these selections, you are at liberty to withdraw them, and select other lands in their stead, in conformity with my circular of the 30th August, 1832, making your return on the printed form which has been furnished you. ’ The lists of lands heretofore selected, and forwarded in your letters of the 8th June and 4th August, 1831, are now returned. I am, &c.,
    ELIJAH HAYWARD,
    Thomas Scott, Esq., Register, Chillicothe, Ohio.

      (No. 6.)
    Land, Office at Chillicothe,
    [No. 3124.]
    April 8th, 1833.
    It is hereby certified, that in pursuance of law, Robert Hamilton, of Lawrence county, Ohio, on this day purchased of the Register of this office, the lot, or south-east quarter of section number fifteen, of township number three, in range number eighteen, containing one hundred and sixty acres, at the rate of one dollar and twenty-five cents per acre, amounting to $200, for which the said Robert Hamilton has made payment in full, as required by law.
    Now therefore be it known, that on presentation of this certificate to the Commissioner of the General Land Office, the said Robert Hamilton shall be entitled to receive a patent for the lot above described.
    THOMAS SCOTT, Register.
    (No. 7.)
    General Land Office,
    9th January, 1834.
    Sir : Under the provisions of the act of Congress of the 20th May, 1826, (Land Laws, p. 912,) entitled “an act to appropriate lands for the support of schools in certain townships and fractional townships, not before provided for,” I beg leave to recommend for your approval, the selection of the following tracts in the Chillicothe district, viz:' The N. E. of section 22, T. 2, R. 17, containing 173 acres, as school lands for township 1, R. 17 ; the S. E. ¿ of section 15, T. 3, R. 18, containing 160 acres, as school lands for township 1,,R. 19; and the E. ¿of section 12, T. 2, R. 19, containing 320 acres, as school lands for township 2, R. 19. I am, &c.,
    E. HAYWARD.
    Hon. R. B. Taney, Sec’y. of the Treasury.

      (No. 8.)
    Treasury Department,

      January 9th, 1834.
    Sir, Under the authority given under the act of Congress, approved 26th May, 1826, and agreable to the recommendation' contained in your letter of that date, I select as school lands for township 1, range 17, in the Chillicothe district, the N. E. J of section 22, T. 2, R. 17, containing 173 acres; for township I, range 19, in the same district, the S. E. of section 15, T. 3. R. 18, containing 160 acres, and for township 2, range 19, in the same district, the east £ of section 12, T. 2, R. 19, containing 320 acres.
    I am very respectfully your obed. serv’t,
    R. B. TANEY,
    Secretary of the Treasury. ■
    Commissioner of the General Land Office.
    (No. 9.)
    Land Office at Chillicothe,

      June 20th, 1836.
    Sir, Application has this day been made for the purchase of part of a quarter section of land heretofore selected for school purposes in fractional township in Lawrence county. This quarter section, with others selected for school purposes, were by me reported to the General Land Office, but the report was rejected and returned with special instructions. These instructions I communicated to the Commissioners of those counties, within this District, entitled to school lands under the act of Congress, with a request that they would make, or cause to be made, the selections of land to which their respective counties were entitled. *To this request no answer has been returned by the agents of any one of those counties. I am, therfore, really at a loss to know what to do with the lands described in the rejected report. If the selections be not soon the benfits intended by the act will be almost entirely I therefore respectfully request your particular attention to this subject, so that I may know how to shape my course in regard to these matters.
    Very respectfully, sir, your ob’t. serv’t,
    THOMAS SCOTT.
    Honorable Ethan A. Brown, Commissioner of the General Land Office, Washington City.
    (No. 10.)
    General Land office,

      20th August, 1836.
    Sir, Your letter of the 20th June last, on the subject of school lands for fractional townships in your district, has been received.
    The School Commissioners of those counties in your district entitled to school lands under the act of May, 1826, having failed to make, or cause to be made, the selections to which their, counties were respectively entitled, I have to request that you give public notice, in some newspaper printed in Chillicothe, that on a given day, provided selections are not previously reported by the School Commissioners, you will proceed to make them yourself, from the best information in your possession, for all the counties within the limits of your district that may be entitled to them. You will cause a copy of the notice to be forwarded to the proper authorities in each county.
    On the day appointed you will proceed to prepare your list of lands selected in the manner and form prescribed by the circular letter of the 30th August, 1832, and forward the same to this office immediately thereafter, in order that, if found correct, it may be submitted to the Secretary of the Treasury for his approval.

      In those cases where selections have been heretofore reported by your predecessor and no exception has been taken to them, or the substitution of other land requested in lieu thereof by School Commissioners, you are directed to include them in your list, subject to the corrections, as to quantities, pointed out in the Commissioner’s letter of the 23d of October, 1828, and the scale prescribed by the act of May, 1826.
    The change contemplated by you in the school lands for certain fractional townships in Lawrence county, not being approved by the citizens thereof, and having been made the subject of a memorial to Congress, you are particularly directed, unless otherwise requested by the School Commissioners, to return the three tracts originally selected, viz : the N. E. ¿ of section 22, T. 2, ft. IT; S. E. ¿ 15, 3, 18, and the east % of section 12, T. 2, It. 19, in which event you will notify the' purchaser of the S. E. ¿ 15, 3, 18, per certificate 3124, that the entry of that tract, being subsequent to its selection for school purposes, cannot be recognized by this office, and that orders will be given for refunding the purchase money. I am, &c.
    ETHAN A. BROWN, Com’r.
    Register, Chillicothe, Ohio.
    (No. 11.)
    Land Office at Chillicothe,

      July 16th, 1839.
    Sm, Accompanying this you will receive the selections recommended for school purposes, under the act, approved 20th of May, 1826, entitled “an act to appropriate lands for the support of schools, in certain townships and fractional townships, not heretofore provided for.”
    I remain, very respectfully sir, your ob’t. serv’t,
    THOMAS SCOTT.
    Honorable James Whitcomb, Commissioner of the General Land office, Washington City.

      (No. 12.)
    Treasury Department,

      August 31 si, 1839.
    Sir, The lands contained in the lists marked 1, 2 and 3, reported by the Register of the Land Office at Chillicothe, Ohio, selected for the use of schools, under the provisions of the act of the 20th of May 1826, and submitted in your letter of the 28th inst., may be appropriated for the object stated, and their selection is hereby approved.
    I am, very respectfully your ob’t. servant,
    LEVI WOODBURY,
    Sec’y. of the Treas’y.
    James Whitcomb, Esq. Commiss’r. of the Gen’l. Land Office.
    The Court of Common Pleas gave judgment for the defendants, to reverse which this writ is prosecuted.

      S. F. Vinton, D. C. Goddard, Le Grand Byington and John S. George, for Plaintiffs in Error.

      Simeon Nash and O. F. Moore, for Defendants.
   Avery, J.

It is shown by the agreed statement of facts, that only a few days after the passage of the act, to wit: on the 24th of May, 1826, the Commissioner of the General Land Office issued a circular to the Registers of the several Land Offices in the United States, in which instructions were given for the selection of the Lands appropriated by the act. In this circular, a copy of which was received by the Register of the Chillicothe Land District, instructions were given to the Register, to cause selections of land to be made under the provisions of the act, and to forward a list of such selections to the General Land Office, to be submitted to the Secretary of the Treasury for his apprabation ; and in making the selections the following rules were to be observed:

First. In all cases where the lands have not been offered at public sale, you will make the selection previous to the and within the fractional township.

Second. Where the lands have been heretofore disposed of, or offered at public sale, you may make the selections either within the fractions, if there be a sufficiency of unsold lands of good quality, or of any other lands within your Land District, which have been offered at public sale.

Third., In all cases where the lands have, been offered at public sale, and where there are persons duly authorized by the State or inhabitants of a township to take charge of the school land, it would be proper to permit such persons to make the selections, provided it be done in a reasonable time.

In obedience to the requisitions of the circular, the Register addressed a letter to the Commissioners of the county of Lawrence, requesting them to maké and forward to him a selection for the fractional townships, for the purpose of being transmitted to the General Land Office, and the commissioners, through their agent, selected the south-east quarter of section 15, township 3, range 16, as the school lands for township 1, range 19. This quarter contains 160 acres, and is the land now in controversy. The selections made by the agent of the County Commissioners of Lawrence county, including the aforesaid S. E. quarter of section 15, for township 1, range 19, were returned by the Register, according to the directions of the circular, to the General Land Office, and were submitted to the Secretary of the Treasury, and finally, the selection of this tract, together with others, was approved and confirmed by the Secretary of the Treasury^ acting under the above recited law of Congress, and measures were taken to designate this tract as appropriated for the support of schools.

Proceedings, such as have been noticed above, if regularly conducted, would operate to pass the legal title of the United States to this quarter section of land ; which would thereafter be held by the same tenure, and upon the same terms as Section 16 was held by the State of Ohio. And section 16, by the act of Congress passed March 3d, .1803, was vested in the of the State, in trust for the use of schools. Land part I, p. 88. By a law of Ohio, relating to original surveyed townships, provision is made that three trustees and a treasurer shall be elected for the purpose of taking into their care the school lands, and they are constituted a body corporate, capable of suing and being sued, and vested with other powers over said lands. Swan’s Statutes, 957.

From the acts of Congress, above referred to, the proceedings of the Secretary of the Treasury of the United States, so far as yet noticed in this opinion, and the Statute mf Ohio aforesaid, the right of the plaintiff to recover this land in an action of ejectment, would seem to be sufficiently established.

But it appears by the same agreed statement, that on the 8th of April, 1833, Robert Hamilton, for himself and the other defendants to this suit, entered this same quarter section of land, paid for it, and took from the Register of the Chillicothe District Land Office, a certificate of purchase. No patent, however, was issued to Hamilton, and he has been since notified by the Register of the Chillicothe land office, that the purchase money will be refunded to him by the United States.

It is submitted to the Court by the agreed statement, to determine which party has the better right to this land', the plaintiff by virtue of the selection, or the defendants under their entry.

It will be seen from the instructions sent to the Register of the Chillicothe Land'Office, that he was to note by a pencil mark in his tract book, and on the plat of the townships, the lands recommended to be reserved under the act, and to withhold them from sale until officially advised either of their approval or rejection. This appears in a Circular, of the date of August 30,1832 ; and this tract had been, after the selection, withheld from sale. The circular of 1832 expressly namesthe circular of the 24th of May, 1826, and states that, as it had not been accompanied with a prescribed form for reports, a diversity of forms had been adopted at the different offices. With the last circular was transmitted a supply of forms, to secure uniformity, and the Register was requested to report all the selections before reported, including those which had been approved, , . • those which had not up to that tune been sanctioned; all selections to be embraced in one report, and to be marked No. 1.

The tract in controversy, with other lands, had, previous to this circular of August 30,1832, been reported by the Register as selected; but on the 7th of March, 1833, he addressed a letter to the Commissioner of the General Land Office, containing, amongst other things, the following inquiries:

“ 1st. Does the fact of my having reported them (the selected lands) to your office take them out of the general rule prescribed for my government, and if not —

,2d. Shall I consider all the selections heretofore made as void, and have them made in exact conformity to the instructions ? ”

To this letter a reply was sent by the Commissioner of the General Land Office, dated on'the 19th of the same month, (March) wherein he says: That as there has been no action of the Department on these selections, you are at liberty to withdraw them and select other lands in their stead.”

Soon after the date of this reply, on the 6th of April, 1833, Hamilton entered the quarter section in dispute, and obtained a certificate of purchase from the Register. The circular of August 30, 1832, had given to the Register express directions to report all the previous selections under the law, and we are unable to discover how there could be any doubt about the intention carefully to preserve these selections. The act of Congress provided for a choice amongst all the unappropriated lands of the district, to promote the object contemplated, the support of schools; and the Secretary, in order to secure the full benefit designed, had taken immediate measures to select the lands. The quarter section in controversy, was a very valuable tract. Hamilton knew that it had been selected as school land, in behalf of the township, and withheld from entry ; he had attempted, indeed, to purchase it from the township. In this state of the case, Hamilton could not become a bona fide purchaser of the land, until it was relinquished by orders proceeding from the of the Treasury. His being informed by the Register that it.had been relinquished, when it had not been so in reality, and in the mode required, would not enable him to secure an equitable title to it. And here, the very authority under which the Register assumed to act, upon attempting to subject this land-again to entry, which had for several years been withheld, might have satisfied both him and Hamilton that the land was not, at the time, subject to entry. The authority stated that there had been no action of the Department on the selections. The Secretary was the only person designated to make the selections, and no subordinate officer, without authority from him, could act. No subordinate officer could reject this land, any more than he could make a final selection of it. This the defendant, Hamilton, knew, from the terms of the act of Congress, or must be supposed to have known. It was incumbent, therefore, upon him, before he could claim the rights of a purchaser, without notice, to possess information that the land had been rejected by the Secretary.

If the defendant, Hamilton, had purchased this tract of land from a private individual, who was the owner of the fee, under circumstances like those attending the present case, and taken an agreement to convey the title at some future time, he would have held only an equitable title to the land; and an equity, with such knowledge, of a prior adverse claim to it, as would not warrant a decree for specific execution. Hamilton, by his purchase, secured nothing more than an equitable title, the fee still remaining in the United States; and the officers of the Government taking good care to prevent any action by which the legal title could pass to him.

All the acts of the Secretary of the Treasury, and of all the subordinate officers of his department, from the time of first designating the tract to the final confirmation of the legal title, with the exception of this single attempt of the Register to treat the land as liable to entry, have been in conformity with the original purpose of selecting it for the use of schools.

The intent so manifested, and the several acts under the Secretary of the Treasury, as detailed above, including his final selection of the land, have, in the opinion of the Court, the legal title in the plaintiff, and shown that there is not any equitable claim to the land in the defendant.

The plaintiff is entitled to recover, and the judgment of the Common Pleas is reversed.

The same judgment will be rendered in this Court, as should have been given in the Common Pleas.

Judgment for the Plaintiff.


source: Caselaw Access Project

author: Birchard, C. J.

license: Public Domain

text:
    James Coombs vs. Anna Parker and Benjamin Coombs.
    Where one on selling land, takes notes for the purchase money, with personal security, and afterwards, in pursuance of the contract of sale, executes a deed for the premises, by which the vendor's lien is destroyed, the surety upon the notes is not thereby discharged.
    This is a Bill in Chancery reserved in Clermont County.
    The Bill alleges that Benjamin Coombs purchased a tract of land of Anna Parker on credit, arid received a title bond conditioned for a conveyance when Coombs should pay the purchase money. That to secure the purchase money, Coombs executed certain promissory notes in which complainant joined as security, and on which she has commenced suit.
    The Bill further states that without complainant’s knowledge the respondents made a new arrangement for tfie payment of the purchase money, by which she took up the title bond and gave to Coombs a deed in fee, acknowledging the receipt of the purchase money, and took a mortgage on the land to secure the same, which mortgage, by an arrangement made without complainant’s consent, with said Benjamin Coombs, was not put on record in time to secure the lien against other claims, which Were intermediately acquired, and have exhausted the mortgaged These acts are claimed to be sufficient to work the complainant’s discharge as a surety, '&c. An injunction was obtained which was dissolved on the hearing upon bill and answer, and the bill dismissed in the Court of Common Pleas, from which an appeal was taken to this Court.
    The answer of Anna Parker, which was called for under oath, admits the sale and the taking of the notes ; says that the title bond is lost, &c., but that it was conditioned that she should convey to said Benjamin Coombs the lands in twelve months from its date. Says that when she contracted she did not rely on a lien upon the land for the purchase money, but took Benjamin Coombs’ note, with complainant as surety for that purpose; denies that there was ever any understanding that she was to hold the legal title as security till the purchase money was paid, but she relied solely on the personal security. That more than a year after the date of the bond, she executed the conveyance and took the mortgage on the representation and agreement of Benjamin Coombs that he could sell the land and pay her, and if not, that he would surrender and cancel the deed, but he deceived her, put his deed on record, mortgaged the land, &c., and as she believes, the complainant, who is Benjamin Coombs’ brother, knew something about it. She admits the proceedings whereby she has lost all claim upon the land as vendor or mortgagee.'

      John Jolliffe, for Complainant,
    cited the following authorities :

      May ham v. Coombs, 14 Ohio Rep. 426 ; Com. Bank Lake Bi'ie v. Western Reserve Bank et. al. 11 Ohio Rep. 444; Dixon et. al. v. Ewing’s Adm’r. 3 Ohio Rep. 280; Farmers Bank of Canton v. Raynolds, 13 Ohio Rep. 104;. Clinton Bank of Columbus v. Ayres et, al. 16 Ohio. Rep. 482; 13 Verm. Rep, 315; 7 Miss. Rep. 497 ; 9 Watts & Sarg. Rep. 36.

      Gholson &f Miner and J. W. Lowe, for the Derendant, Anna Parker,
    cited the following authorities :

      Neimcewicz v. Gahn, 3 Paige’s Rep. 651; Grafton Bank v. Kent, 4 New Hamp. Rep. 221; Bangs v. Strong, 10 Paige’s Rep, 16; Mohaiok Bank v. Van Horne, 7 Wend. Rep. 117; Pring v. Clarkson, 1 Barn. & Cress. Rep. 14; 1 Story’s Eq. Jur. 4th Ed. 568; Macdonald v. Bell, 3 E. T. Moore’s Rep. 315, 332; Cassel v. Butler, 2 Sim. & Stu. Rep. 457; Farmers' Bank of Canton v. Raynolds; 13 Ohio Rep. 84; Hayes v. Ward; 4 Johns. Ch. Rep. 180; 1 Story’s Eq. Jur. Sec. 499, a, b, c, d ; 11 Eng. Ch. Rep. 128 ; Brush v. Kinsley, v. 14 Ohio Rep. 20; 8 Eng. Ch. Rep. 338; Henley v. Stemmons, 4 B. Monroe’s Rep. 131; Burk v. Chrisman, 3 B. Monroe’s Rep. 50; Woodward v. Clegge, 8 Ala. Rep. 317.
   Birchard, C. J.

This case standing upon bill and answer under oath, the answer must be taken as true so far as it responds to the bill. The inquiry then is, do the facts thus stated, show that the complainant should be released from the payment of these notes ? The answer avers that Mrs. Parker had made an engagement to convey the land on a particular day, and that she relied at the making of the contract upon the personal security taken to secure the purchase money, and not on the land or on the vendor’s lien. That there was no agreement or understanding that she should look to any thing but to said personal security, yet that she was deceived and cheated out of her title by the complainant’s brother, her co-defendant. This case, so made by the answer, is in its material features quite variant from the. case made by the bill, and to which the arguments of complainant’s counsel are mostly applicable. As the case stands, there js no act done by Anna Parker which should release James Coombs, unless it is the conveyance to Benjamin before the payment of the purchase money. But that she avers was in pursuance of her contract. Is there any rule of equity which requires us to hold this act a release of the personal security of James ? The object in taking him as security, was that estate “'S'bt Pass by deed into the hands of the vendor and discharged of the vendor’s lien. It was for that reason only that Mrs. Parker’s claim for the purchase money was postponed to Mayham’s-Mortgage, 14 Ohio Rep. 437.

It ought not then to be held that the mere conveying of the land, according to the written contract, is a discharge of the surety. Mrs. Parker had a right to convey, nay, was bound to tender the deed on the day mentioned in the title bond. True she might have retained it for her own security until she received payment, but she was not bound to do so. She had made no contract to that effect, and all that James Coombs could require of her in equity was, that she should conduct honestly toward both himself and his principal; and honesty required from her a tender of the deed at the time agreed upon, and from Benjamin Coombs and the complainant a like tender to her of the sums due upon the notes. The power which she had of retaining the possession of the deed of conveyance after tender, until actual payment of the purchase money, was a mere incident to the contract, which the law permitted, and is in no sense to be regarded as a collateral security, which must be retained at the hazard of releasing sureties. Again, it is urged that complainant ought to be discharged on the ground of negligence in not placing upon record the mortgage. We think her acts in this respect are sufficiently explained by her answer. Shefyvas deceived by the bad conduct of complainant’s brother, and by means of his fraud was induced, greatly to her own prejudice, to deliver him a deed for one purpose which he used for another. If she had succeded in securing her claim by the means of the mortgage, and had then through negligence lost the security, she would also have lost all equitable claim upon complainant. But she failed in securing any thing by the mortgage. That was her misfortune, not her fault. The statute which requires a mortgage deed to be left for record before it can take effect, with the aid of B. Coombs in this case, effectually prevented Mrs. Parker from obtaining a security of any So that if complainant is to be released for the neglect value. to record in time, he is released not because his adversary parted with or destroyed a mortgage security, which she ought to have held for his benefit, but because she was cheated by his principal, and could get no-such security to'part with.

Bill dismissed.