source: Caselaw Access Project

author: Mr. Justice CATRON

license: Public Domain

text:
    The United States, Appellants, v. David M. Hughes, Robert Sewall, and Franklin Hudson, a Minor, by his Tutor, Holmes Hutchinson.
    Where a person entered land according to law, but omitted to obtain a patent for it, and another person afterwards obtained a patent from the United States by proceeding as if it were vacant land, knowing at the same time that it was not vacant, the patent thus obtained will be set aside.
    Nor is it a sufficient objection to a decree, that the process was by an information in the nature of a bill in chancery, filed by the attorney for the United States. A simple bill in equity would have been better, but this process being so in substance, the case will not be dismissed for want of form. ’ t

    An individual owner of land would, in such a case, be entitled to the relief of having the patent set aside; and the United States, as a landholder, must be entitled' to the same.
    The deeds of conveyance filed as exhibits show the property to have been sold for two thousand dollars, and .that it was afterwards converted into a sugar estate. This is sufficient to maintain the jurisdiction of this court.
    This was an appeal from the Circuit Court of the United States for the District of Louisiana.
    The attorney of the United States filed an information in the nature of a bill in chancery against David M. Hughes, who was the real defendant, and also against Sewall and Hudson,nominal defendants.
    On the 12th of April, 1814, Congress passed an act (3 Stat. at Large, 122) for. the final adjustment of land titles in the State of Louisiana and Territory of Missouri.
    The fifth section was as follows: —
    “ Sec. 5. And be it further enacted, That every person, and the. legal representatives -of every person, who has actually inhabited and cultivated a tract of land lying in that part of the State of Louisiana which composed the late Territory of Orleans, pi in the Territory of Missouri, which tract is not rightfully claimed by any other person, and who shall not have removed from said State or Territory, shall be entitled to the right of preemption in the purchase thereof, under the same restrictions, conditions, provisions, and regulations, in every respect, as is directed by the act entitled ‘An Act giving the right of preemption in the purchase of lands to certain settlers in the Illinois Territory.’ uassed February 5,1813.” (See 2 Stat. at Large, 797.)
    This act of 1813 prescribed the mode of proceeding; that the party should make known his claim to the register, &c., &<?.
    Prior to or on the 22d of February, 1822, one John Goodbee presented the following application to the register and receiver of the Eastern District of Louisiana.
    “ Gentlemen, — I apply to become the purchaser of a tract of land by virtue of settlement under the act of Congress of the 12th of April, 1814, situated as follows, in the parish of Iberville, principally on the north side of the Bayou Goula, designated as No. one by ibe surveyor, and is the same land which was inhabited' and cultivated by Daniel Beedle, or Bidelle, in the year 1813, under whose settlement I claim by purchase. This land belongs to the United States, and is not rightfully claimed by any other person ,• neither has said Bidelle removed from the State. The land claimed has not been surveyed according to law, but I apply fot the right of preemption to one hundred and sixty superficial acres, at the price provided by law, and offer proofs of the facts set forth'.
    “ John Goodbee.”
    Whereupon the register and receiver issued the following certificate and receipt.
    “ No. 8.
    “ The applicant having proved, to the satisfaction of the register and receiver for the Eastern District of Louisiana, that he ■has a preemption right to the land claimed, I, in consequence, certify that he is entitled to one hundred and sixty superficial -acres of land, as applied for; subject, however, to the sectional or divisional lines to be hereafter run under the authority of the United States.
    “ Sam. H. Harper, Register.

    “ February 22d, 1822.”
    “ Receiver’s Office, New Orleans, February-26l/i, 1822.
    “ Received of John Goodbee two hundred dollars, being the purchase-money for one hundred and sixty superficial acres of land,"in the parish of Iberville, designated as No. 1 by the surveyor, to which , he has a preemption right, according-to the certificate of the register, No. 8, exhibited to qae.
    “J. J. McLanahan, Receiver.

    “ 160 acres a lor,, $ 200. Original filed 9th Oct., 1845.
    “ Paul Deblieux, Clerk.”

    Subsequently proper returns of survey were made, on which the land'was fully described and designated as lot No. 1, on the north side of. Bayou Goula, or section 54 in township 10 (west of the Mississippi) of range 12 east.
    On the 14th of May, 1836, David -Michael Hughes entered this land as if it were a tract of public land, containing 175^0 acres; and on the 16th of April, 1841, obtained a patent from the United States.
    On the 3d of April, 1846, the receiver gave a certificate to John Goodbee, that he had received from him the sum of f> 19.32, the price of 15 acres at $ 1.25 per acre, that .being the excess of the land beyond the original estimate and payment.
    On the • 20th of January, 1848, Thomas J. Durant, Attorney of the United States for the District of Louisiana,-filed in the. Circuit Court an information and bill, commencing as follows : —
    “ To the Honorable the Judges of the Circuit Court of the United States for the Fifth Circuit and-District of Louisiana, in Chancery sitting': Informing, showeth unto your honors, Thomas J. Durant,” &c., &c.
    The bill then went on to narrate the facts of the case as above set forth.
    It further states, that on or about the 14th of May, 1836, Hughes, who resided near the town of Alexandria, Louisiana, did make an application to the register of the land-office of New-Orleans, to enter and purchase the said lot of land at private sale, falsely representing to the.register that the said land was then subject to entry and sale, and that he was by the said register permitted to enter the said land, as if the same was liable to private entry; and that he, stifi falsely representing the said land as subject to private entry and sale, did, on the same day, pay the receiver the sum of $ 219.32, and that there was issued to him by the register the usual certificate given'in such cases. That, on the 16th of April, 1841, Hughes presented the said certificate to the Commissioner of the General Land-Office at Washington, still falsely representing the land as subject to private entry and sale, and that he had legally paid for the same, and did procure the commissioner to issue a patent to him. That all the acts and doings of the register and receiver in permitting Hughes to enter and pay for the land were done in error, and urere at the time, and now, null and void j and that the acts and doings of the Commissioner of the General Land-Office were also, then and now, null and void, because the land had long before been sold by the United States to John Goodbee, and that Hughes is bound, in equity and good faith, to restore and give up the patent, and not to pretend or set up any title to the said land. ■
    ■ That Goodbee is dead, and that the land is in the joint occupation and settlement of Robert Sewall, who resides on it, and of Franklin Hudson, a minor, who is represented by his tutor; and that they pretend to possess said land as owners, under title derived from Goodbee ;■ and that the. said parties in possession ought to be made parties to the proceedings in the case.
    It is further stated, that, so soon as the error in 'issuing a patent and the other acts preparatory thereto were discovered, Hughes veas requested to give up and restore the patent, and receive back the money he hád erroneously paid for the land, but refused to do so; on the contrary, he had commenced suit in one of the State courts against the possessors, who hold under Goodbee, to. deprive them of the land by means of said patent, to the damage and ihjury of the United States, who are bound in equity and good faith to hold harmless all persons who have derived title from Goodbee from the consequences of errors and- mistakes of their own, and their officers, and particularly from those of the error in issuing a patent to Hughes.
    The bill then charges combination and confederacy, and that Hughes had_refused to comply with the requests made to him, and sets forth his pretences for so doing; and the defendant Hughes is required to answer the following interrogatories: Nos. 1, 2, 3, 4, 5, 6, 7, 8, and 10; and the other defendants Nos. 9 and 11.
    .. 1st. Whether the said land was not entered by David Michael Hughes at the land-office of the United .States in New Orleans, on the 14th day of May, 1836 ?
    2d. Whether, in making said entry, he, the said David Michael Hughes, did not represent said land to the register of the land-office as land that was then-subject to entry and private sale ?
    3d. Whether, at the time of making said entry, he, the said David Michael Hughes, did riot know that the said land had previously been sold by the United States to John' Goodbee ?
    4th. Whether he, the said David Michael Hughes, did, on the 16th day of April, in the year 1841, obtain or procure a patent for said land from the General Land-Office in Washington?
    5th. Whether said David Michael Hughes, has, since the patent was procured by him, and before the institution of these proceedings, been called upon to restore and give up saidpatent to the proper officer of- the United States, on the ground that said patent was erroneously issued and delivered to him, and to receive back the money which he paid into the treasury as 'the price of said land ?
    ■6th. Whether the said David Michael Hughes has not refused to give up said patent when so called upon ?
    7th’. Whether the said David Michael Hughes has not commenced, and is not now carrying on, proceedings at law in one of the State courts of Louisiana, to obtain possession of said land by. virtue of said patent; and, if yea, in what court, and who are the parties defendant in said suit ?
    8th. Whether, at the time of his procuring said patent from Washington, he,'the said David Michael Hughes, did not have •information, or did not have reason to believe, that the said land had formerly been entered and paid for by John Goodbee ?
    9th. Whether the said John Goodbee is now alive; and, if not, when did he die ?
    10th. Whether the said David Michael Hughes did not know,, or was not informed, when he entered said land, that the land was in possession of Robert Sewall and of Franklin Hudson; or did he not know or believe that it was in possession of some parties claiming it as owners, and of whom ?
    Y . 11th. In whose possession is said land now, and by what title do the present possessors hold-it? Is said title derived from John Goodbee,"and how?
    . The prayer of the bill was for an injunction to restrain Hughes- from proceeding at law, upon the patent, to obtain possession of the land; and to restrain him from selling, disposing of, pr parting with the same, during the pendency of this suit; and that he may be decreed .to deliver up the patent to the United States to be cancelled, as having been issued to him in error, and without right, and for further and general'relief.
    Sewall and Hudson, the latter by his tutor, answered the bill, setting forth their title derived from Goodbee, praying to be dismissed from court and quieted in their title.
    Hughes demurréd, arid for special causes of demurrer assigned:—
    1st. That by the showing in said bill this court has no jurisdiction of the matter presented, as the subject of controversy between this defendant and Sewall and Hudson, being all citizens of Louisiana. ‘
    2d. Because, by the showing .in said bill, the United .States, as complainants, have no interest whatever in the matter in controversy.
    3d. That the case made by the' bill shows that Robert Sewall and Franklin Hudson,-who are defendants in this bill, are in point of interest the only proper parties to complain against this defendant, and are not properly his co-defendants.
    4th. Becartse, by the case made by the bill, the United States appear to litigate the private rights, of one citizen against another citizen, without cause or authority so to do.
    5th. Because there is no law to authorize the United States to invoke the courts of the United States to repeal, revoke, and cancel a deed for land given by the United States to a citizen, when the whole price is acknowledged to have been received by the United States for the land sold. -
    6th. Because the complaint is in form an information by the district attorney of the United States in behalf of the United States, and in behalf of Sewall and Hudson, for matters only cognizable by a court, of equity, on a bill in chancery, at the instance of the party aggrieved.
    7th. Because the matter asserted as a, preemption right to land in John Goodbee is in law no right of preemption.
    8th. Because, if the right asserted was originally good as a right of preemption in Goodbee, it is shown by the bill to have been lost, and forfeited as such right, for want of timely payment ; and for many other defects, &c., in said bill appearing.
    On the 24th of January, 1849, the court sustained the demurrer and dismissed the bill. The "United States appealed to this court.
    It was argued by Mr. Crittenden (Attorney-General), for the United States, and submitted on printed argument by Mr. Henderson for the appellees.

      Mr.. Crittenden

    made the following points: —
    I. That the court' has jurisdiction to vacate and cancel the patent issued to Hughes.
    Coke, 4 Inst. 88, says, that the Chancellor has jurisdiction to hold plea- of scire facias to repeal letters patent, and enumerates three cases in which the writ lies for-that purpose. 1st. Where the same thing has been granted to different persons, the first patentee shall have the writ to repeal the second patent. 2d. Where a grant has beén made upon a false suggestion. 3d. Where a thing has been granted, which by law cannot be granted.
    Where any thing has been unadvisedly granted which ought not to be granted, the remedy to repeal is by scire facias in chancery. This may be brought either on the part of the king, or, if the grant is injurious to a subject, the king is bound of right to permit him to use his name for repealing the patent in a scire facias. 3 Bl. Com. 261; 2 lb. 346,348; The Prince’s Case, 8 Co. Rep. 20; The King v. Butler, in the House of Lords, 3 Levinz, 220; Cumming v. Forrester, 2 Jac. & Walk. 342; Gledstanes v. Earl of Sandwich, 4 Man. & Grang. 1029; Brewster v. Weld, 6 Mod. 229.
    In Attorney-General v. Vernon, 1 Vernon, 281, 282, and same case, Ibid. 387-392, it was held that a bill in chan jery lies to set aside a grant of land. This was a case of purchase.
    That a bill lies is also decided in Jackson v. Lawton, 10 Johns. 25; Jackson v. Hart, 12 Johns. 77; Seward’s Lessee v. Hicks, 1 Har. & McHen. 23, which moreover is a bill by individuals. Lord Propietary v. Jenings, Ibid. 144; Norwood v. Attorney-General ex rel. Bowen, 2 Har. & McHen. 201, 213; Smith and Purviances v. Maryland ex rel. Yates, Ibid. 244, 252; Miller v. Twitty, 3 Dev. & Bat. 14; 1 Story’s Eq. 121, 155, 157.
    Mr. Wirt was of opinion, that patents for land issued by the United States might be repealed either by scire facias or bill. Opinions, 334. The case of Jackson v. Lawton, above cited, is to the same effect. But it may be a question whether a scire facias lies in such a case, there being no statute on the subject, and the patent not being a matter of record. However that may be, it is very clear, by the authorities above referred to, that a'bill in chancery lies, which is the mode of proceeding adopted in this case. See also Polk’s Lessee v. Wendell, 9 Cranch, 99.
    II. That the patent issued to Hughes ought to be vacated and cancelled, the same having been issued in error, and without authority of law, and upon false representations and suggestions.
    The purchase made by Hughes of lot No. 1 was by private entry. This entry was void, the land not having been previously offered at public sale. The fourth section of the act of 24th of April, 1820 (1 Land Laws, 224), is express on this point. The patent upon this void entry was therefore issued without authority of law, and void.
    The evidence to sustain this point, that the land was not offered under the President’s proclamation of the 11th of August, 1823, is to be found in the letter of the register of the land-office at New Orleans, of the 23d of February, 1846, exhibit C, of the bill. It will be remembered that the certificate to Good-bee, allowing the preemption, is dated 22d February^ 1822, and is signed by Samuel H. Harper, the register, and that the price was paid to the receiver on the 26th of the same month. Now the evidence is, “ that on the tract book, under the President’s proclamation of 11th August, 1823, lot No. 1, north side of Bayou Goula, is there registered in the order of sale, but opposite is written, in the handwriting of Samuel H. Harper, the then register, li sold.” Mr. Harper had previously allowed Goodbee’s preemption, and. he therefore marked the lot as sold on the tract book, under the proclamation.
    But even if the land had been offered at public sale, the private entry of Hughes was void, because the register and receiver, had no authority to sell and receive the purchase-money of lands which had been already sold. The lands authorized to be sold are the public lands of the United States. Act of 24th April, 1820, 1 Land Laws, 323. The land in question had become the property of Goodbee, under the act of 1814, by the allowance of the preemption claim by the register and receiver, whose decision by the terms of the act is conclusive: i‘ And in every case where it shall appear to the satisfaction of the register and receiver, that any person who has delivered his notice of claim is entitled, according to the provisions of this act, to a preference in becoming the purchaser of a quarter-section of land, such person so entitled shall have a right to enter the same,” &c. See Wilcox v. Jackson, 13 Peters, 498. The sale and patent to Hughes- were, therefore, made and issued without authority of law, and void.
    By the demurrer, Hughes admits, the charge in the'bill, that he represented the land to be liable to entry and sale.
    III. That the land wqs subject to preemption by Goodbee, and his claim thereto properly allowed.
    It does not appear at what date Goodbee made his application, it having no date; but it is certain his claim was allowed, on the 22d of February, 1822, and that he paid the purchase-money on the 26th, for “ one hundred and sixty superficial acres of land, in the parish of Iberville, designated as No. 1 by the surveyor, to which he has a preemption right, according to the certificate of the register, No. 8, exhibited to me.” At the date of the payment, it is therefore clear that the lands had been surveyed. In the following year all the lands in the township which had been surveyed were proclaimed for public sale by the President.
    In order that the court may understand why the land was designated lot No. 1, it is necessary to state that, by the second section of the act of 3d March, 1811,-the surveyors were “authorized, in arranging and dividing such of the public lands in the said Territory (Orleans), which are or may be authorized to be surveyed and divided, as are adjacent to any river, lake, creek, bayou, or watercourse, to vary the mode heretofore prescribed by law, so far as relates to the contents of the tracts, and to the angles and boundary lines, and to lay out the tracts, as far as practicable, of fifty-eight poles in front and four hundred and sixty-five poles in depth, of such shape and bounded by such lines as the nature of the country will render practü cable and most convenient,” &c. (1 Land Laws, 190.) In the first surveys made in Louisiana, therefore, the public lands on-watercourses were always laid out according to the mode above-directed, which was the ancient French and Spanish mode, .— a narrow front on a stream, and running back for quantity. The number of acres embraced within the area of the measures given is. one hundred and sixty acres, or thereabouts. On the plats, these lots were numbered continuously, sometimes, where the' watercourse was long, running through many townships. In the township in which the land in question is situated, they are numbered 1,2, &c. on the north side of Bayou Goula; and 1, 2, &c. on the south side. In the proclamation of 1823, they are proclaimed as lots numbered in the same way, lying on the north and south sides of the bayou. .
    . The General Land-Office has uniformly allowed preemptions under the act of 1814, on the land thus-surveyed; and in cases where, by the subsequent surveys of the adjacent lands, these lots have been found to contain more than one hundred and sixty acres, they have allowed the preemptor to enter the additionál number of acres. As having some bearing on this, see the first section of the act of 29th April, 1816 (1 Land Laws, 281), which seems to have béen made to correct a construction of the land-office with respect to preemptions under the acts of 1813 or 1814, to be found in 2 Land Laws, no. 220, 221. The other portions of the townships directed to be surveyed on the watercourses were surveyed in the usual manner, into sections of a mile square, and fractional sections, and these were connected with the watercourse surveys, the whole forming one connected plat. When this was done, the whole sections, fractional sections, and lots were numbered anew as sections, the lots, however, also retaining their original numbers. For instance, in this particular case, the land stands -on the completed plat both as lot No. 1 and section 54. The survey of the township on which the land in question lies was not completed until 1830. When the surveys were completed, lot' No. 1 was found to contain one hundred and seventy-five acres, and for the additional number of fifteen acres the parties who now hold under Goodbee paid the receiver on the 3d of April, 1846.
    By the allowance of the preemption, in 1822, Goodbee, as the representative of Beedie, acquired the land in. question, and the United States parted with all - their interest, in- it. In Carrol v. Safford, 3 Howard, 461, in speaking of the liability of lands, héld by purchasers from the United States who had not received their patents, to State taxes upon them, the courts say, “ Lands which .have been sold by the United' States can in no sense be ealled the property of the United States.. They are no more the property of the United States than lands patented.”
    The land in question now forms part of a valuable sugar-plantation. It is-respectfully submitted, that the decision of the court below ought to be reversed.

      Mr: Henderson

    made the following points.
    First Point. This case must be dismissed for want of jurisdiction, because the plaint is a libel or information by the District Attorney of the United States, filed in behalf of the United States, but not in the name of the United States, and filed in equity (not in admiralty). This'in England, in behalf of the crown, 'might be proper. The “ crown officer ” proceeds officially and in his own name. Story, Eq. PI. §'49 and § 8. But the United States have no such regal pretensions to be so represented.
    “ The judicial power shall extend to all cases in law and' equity,.....to. controversies, to which the United States shall be a party.” Const. U. S., art. 3, § 2. And by the Judiciary Act of 17S9, § 11, the jurisdiction of the Circuit Court of the United States at common law, or in equity, shall only be invoked by the United States -when the value in dispute is . equal to f> 500 or more, and they are “ plaintiffs or petitioners.”
    By the act for the better organization of the Treasury Department, 15th May, 1820, § 1, the agent of the treasury is to “superintend all orders, suits, or proceedings in law or equity, for the recovery of money, chattels, lands, tenements, or hereditaments, in the name and for the use of the United States.” See also § 7, same act.
    By the act of 29th May, 1830, this agency is transferred to the Solicitor of the Treasury, but the manner of bringing suits remains unchanged. See §§ 3, 5, and 8.
    Second Point. The case should be dismissed, because there is no appreciable valué in the matter sought to be decreed by the prayer of the relator, as between the United States and the defendants. The United States do not claim the land, but only the surrender of a patent, for which Hughes gave $ 219.32, and which, as consequence, he would receive .back if the patent was cancelled. Act of 1789, § 11. :
    Third Point. The case should be dismissed, because there is no authority, by any law of the United States, for the courts of the United States to repeal'd- cancel a patent for land sold by the government, when the United States, as in this case, show that they have neither land nor money to gain by sucb decree. In other words, it is shown the United States have no interest in this suit; but interpose only as an act of grace,. officiating only in the office of prerogative. Had Hughes defrauded the government of its lands, the United States would have the same right as a citizen to sue in equity to cancel our title. But a land patent (so called) for lands sold by the United States, is only a deed of bargain and sale* It has nothing of the grace or generosity of royal favor. It is in no legal sense a grant. ' But by acts of Congress of 2d March, 1833, § 1, and 4th July, 1831, § 6, the title issued is called a patent, \bhether •for lands granted or sold; yet it is only in virtue of these qualities of grant that it is in England the prerogative of the crown to repeal patents. 5 Com. Dig., tit. Patent (F), pp. 280, 281.
    But even there, if the same thing be twice granted, the scire facias to repeal shall be brought by the first patentee, and not by the king. Ibid. p. 281 (F. 4).
    This prerogative is of the common law. But the United States have no right to such prerogative. • 6 Pet. 35. And hate no common law. 7 Cranch, 32; 8 Pet. 658; 3 How. 104.
    The United States in selling land,'and in all matters of contract, does not assert its sovereignty, but acts as a citizen. 9 Wheat. 907. Constitutional governments cannot pronounce their own deeds void for any cause. 6 Cranch, 132. They are estopped by their deed. 6 Cranch, 137. An innocent purchaser of a government may plead purchase for valuable consideration. ■ 6 Cranch, 135.
    ■ It is against public policy, that the land-officers should elect their favorite between two citizens claiming the same land by purchase, and involve the United States as a partisan in the strife. And it is against the practice, of the land-office. See President Jackson’s Instruction, 2 Pub. Land Laws, no. 60, p. 93; Instructions 4 and 5, Opin. Attorney-General, Yol. II. no. ¿7, pp. 86 and 87; Ibid., no. 88.
    And the act of 12th January, 1825 (Land Laws, 402), which directs that purchasers of land from the United States, where the purchase is void by reason of a prior sale, shall be entitled to repayment'of the purchase-money, “on making proof, to the satisfaction of the Secretary of, the Treasury, that the same was erroneously sold,” clearly contemplates, that the purchaser shall establish the fact in some sufficient manner, and not that the department, as its duty, shall decide the fact, and force its judgment upon- the purchaser.
    And in this form of suit Hughes cannot litigate his rights with his co-defendants, nor can have any decree in his favor, but the dismission of this plaint; for which he,-by his demur-, rer, and his co-defendants by answer, both pray.
    Fourth Point. The fact is so, and the court, on inspection ■ of the information filed, will not fail to perceive it, that the real contestant parties to the property or title in issue are the co-defendants Sewall and Hudson op one side, and D. M. Hughes on the other. All are shown on the face of the bill to be residents of the State of Louisiana, viz. Sewall a resident on the land in controversy, Hudson an infant ward of the State, and Hughes a citizen of Red River. For such a case as this, no jurisdiction of parties in the Circuit Court of the United States obtains. And hence this case should be dismissed.
    Fifth Point. If the United States, or their attorney, had a right to institute this suit (which we deny), yet no law of Congress can be produced to authorize an appeal by the United States in such a case;.and, without direct legislation permits the appeal, none is allowed. G Peters, 494 - 497; 11 Peters, 166; 1 Howard, 265; 3 Howard, 104 and 317 ; 8 Howard, 121.
    Nor is it shown that the matter in issue between the United States and defendants is of value $ 2,000. And hence the appeal should be dismissed.
    Sixth Point. But if this court asserts jurisdiction of the cause, we nevertheless maintain the decree of dismission was right, not only for the causes shown in the points 1, 2, 3, and 4 preceding (which are all involved in the demurrer), but also that the merits of the case made in the bill are with the demurrant, because no valid right of preemption is shown in Goodbee to the land patented to Hughes.
    We might admit, without prejudice to our case, that what th.e Iandrofficers have decided in favor of Goodbee’s preemption is conclusive against us so far as within their jurisdiction. But we maintain the allowance of this preemption is most palpably without law, and against law. Omitting to note for the present, the numerous blunders of varied descriptions and misdescriptions of the lands in controversy, it is shown by the patent, Exhibit E, that the land sold to Hughes is See. 54, T. 10, R. 12, containing 175-nnr acres. And this is the tract of land said by the bill, and lay Exhibit D, to have been originally described as lot No. 1, but is subsequently correctly described as Sec. 54. We note, then, first, that this is an irregular section, which could only bear the number 54 by being a private claim, and from this cause having- the accumulated number over the thirty-six sections which compose a township of the public surveys. Act of Congress, 18'th May, 1796, § 2 (Land-Laws, 50, 51); Act of 6th March, 1820, § 6 (Land- Laws, 322). ■As an irregular section, and an entire section, it is fractional, including but 175 acres. The bill shows this preemption was claimed and accorded under the fifth section of the act of 12th April, 1814 (Land Laws, 244), which extends the act of 5th February, 1813 (Land Laws, 226), to Louisiana. The claim, then, in Louisiana, must be under “ the same restrictions, conditions, provisions, and regulations in every respect,” as by act of 1813 is provided.- Act of 1813, § 1, provides, “ that no more than one quarter-section shall be'sold to any one individual, in virtue of this act, and the same shall be bounded by the sectional and divisional lines,” &c. See Secretary Crawford’s Opinion, 2 Land Laws, 539, bo. 478, that only a quarter-section is allowable. And § 2 requires that the applicant, in his notice of claim, “ shall ■ particularly designate the quarter-section he claims.”
    On the law, then, it is clear beyond doubt that the land-officers had no power or jurisdiction to grant preemptions to entire sections, or fractional sections, or to any quantity ex-eeeding a .divisional quarter. And such was the construction of the Attorney-Gen eral, in. 1814, of this act, on this point. 2 Land Laws, Op. ho. 220 and no. 221. And the same construction of this act, when extended to Florida, by act of 22d April, 1826, is-adhered to by the'Attorney-General in 1826. See Op. no. 330. And the same principle is decided in Opinion no. 7.
    These authorities seem quite conclusive that the allowance of this preemption was against the plainest provisions of the law,«and the direct instructions of the superior department, and therefore void. 3 How. 664, 665 ; 13 Pet. 519 ; 4 How. 502.
    Seventh Point. The preemption was void in its allowance, because before survey of the land, by which its number and subdivision could be known, or its allowance validated. 2 Land Laws, no. 399.
    The bill affects to make it an equitable merit, that, when this application was made and allowed, neither the applicant nor the land-officers knew on which side the Bayou Goula this preemption lay; and therefore it was assumed to lay on' both sides, but “ principally on the north side.” That they did not know its number and sectional division, its contents and quantity,-because it had not been surveyed." The argument in the bill, that these deficiencies resulted and continued from a delay to “ connect the public surveys,” is sheer nonsense. The con-1 nection of the surveys does not affect the actual surveys of the separate parcels and divisions. This manifest disregard of the law is seen in Exhibit B, which shows Goodbee’s claim to be in the county of Iberville, on the Mississippi River, and for-160 acres exactly. There is no township, range, section, or quarter-section, nor the Bayou Goula, mentioned in this registry of preemption. And Exhibits Nos. 1, 2, 3, 4, with Sewall and. Hudson’s answer, show that no particular lot or division was applied for or granted; but only “ 160 superficial acres,” and this proven to lie on “ both sides of the Bayou Goula.” And the application was expressly granted by the register, “ subject to the sectional and divisional lines to be hereafter run.” Is it wonderful,' with such records of entry, that the land should apparently remain unsold ?
    But all this was' palpably and expressly against the law of 1813, §§ 1 and 2, which distinctly requires that the land shall only be claimed or allowed after survey, and must be sought for and granted by its specific subdivisions. And see Instructions, 2 Land Laws, p. 384, no. 309.
    Eighth' Point. The alleged preemption was clearly void, because not paid for by entry, &e. two weeks before the period assigned for the public sales, and therefore forfeited. Act of 1813; § 2.
    It is unnecessary to inquire with what .indulgence the land-office might’ have regarded the numerous and palpable violations of law which this preemption encounters. It now rests on law, in contest with a. purchaser who has paid his money and got a legal title, and who has a'right to combat this alleged superior equity by any circumstance which may impair it. 7 Wheat. 6. We know not, on this demurrer, at what precise time this land was exposed to public sale; but, on the presumptions of law, Hughes could not have entered it as public lands, till after it was offered for sale at public outcry- Exhibit C shows us it was offered at public sale under the President’s proclamation of 11th August, 1823. And these instructions or.regulations were of like import with those o_f 1st January, 1836. (2. Land Laws, p. 125, no.. 81), and which last was in force when Hughes purchased. And this court will presume what Was required by the regulations to be done was in fact done. Therefore, this land was offered for sale on public no-. tice, before Hughes bought it. And the bill shows; and Exhibit D shows, that this preemption was not paid for till 3d April, 1846, being ten years after Hughes had entered and paid for it. Now, if Goodbee had a preemption right in 1822 to this tract of land, the act of 1813, § 2, expressíy forfeits it, if not entered before offered for sale (2 Land Laws, p. 112, no. 72; Ibid., p.-118, no. 77). And the price must all have been paid .at the time of entry, by act of 24th April, 1820 (2 Land Laws, p. 384, no. 309).' And if the land-officers had any. power to. indulge Goodbee for part payment of this land, it certainly could not lawfully extend to ten years after they had sold it'to another, and for which delay no excuse is given; and it is not pretended the public surveys were not connected when Hughes' ■purchased the land in 1836.
    Ninth Point,. This preemption, as against Hughes, a purchaser with legal title, is void, also, for vagueness, misdescription and uncertainty, and to whichthe acts of the claimant, more than those of the land-officers, contributed.
    He had applied and paid for 160 superficial acres, lying on both sides of the Bayou Goula, which had ho survey, boundary, sectional subdivision, quantity, township, or range, which could identify it, or give it specific location. Claimed as lying on both sides of Bayou Goula, and registered (see Exhibit B as lying on the Mississippi River, could Hughes, or any one, be admonished it lay on the north side of Bayou Goula ? Claiming 160 acres and no odd hundredth's or other excess, who was bound to know it was a tract of 175TY„ acres ? Claimed and registered by some careless, unmeaning, and unauthorized designation of lot No. 1, who would suspect Sec. 54, T. 10, R. 12, was meant and intended by such description ?
    Now, on this demurrer, we claim to discriminate as to what the record was when Hughes purchased on the 14th of May, 1836, and what subsequent conjectures, annotations, and interlineations have made it.
    There was, then, when Hughes purchased, no Sec. 54, T. 10, R. 12, assigned as Goodbee’s preemption, nor the Surveyor-General’s commentary, of date 27th May, 1844, that Goodbee’s 160 superficial acres had increased to 175 J/-, as per Exhibit A. And Register Laidlaw had not then discovered, as he did in 1846, that the word “ sold, ” written in the tract book, opposite to this designated lot, meant sold to Goodbee, rather than Hughes, who had purchased it ten years before this discovery. And the pencilled name of “ Hudson,” in 1836, in same book, but fairly implies that it was put there after Hughes bought the land the same year. But neither of these is so remarkable as that, Goodbee not' having paid for the land up to date (1846), and with the averment in the bill that the “ assigns” of Goodbee, on the 3d of April, 1846, paid up the arrearage due on this preemption, yet the register gives his certificate of the same date, that Goodbee, on the 26th of February, 1822, purchased lot No. 1, or Sec. 54, T. 10, R. 12," containing 175XW acres, for which he made “ payment in full, as required by law.” "While on the same date, as shown by the same Exhibit D, the receiver certifies that Goodbee, on the 3d of April, 1846, paid' him $ 19.32, being residue in full for this same land. How rnuch these post-dated certificates, contradictions, and transmutations of the records shall receive the sanction of the court, and, by their retrospective operation, conduce to deprive Hughes of his title, is submitted with but. little apprehension as to the conclusions .which must be arrived at.
    ■ The charges in the plaint, that Hughes falsely represented to the land-officers that this section was subject to entry, and that he falsely represented he was entitled to have the patent, and thus obtained his title, we regard as meaning nothing available to the case, though met on demurrer. No presumption of law can be entertained that the land-officers acted on the verbal representations of Hughes, and were so childishly cajoled, instead of the evidences of their records, and the laws and instructions which guide them in like cases. Besides, Exhibit C expressly reports this land to have been offered at public sale, by the proclamation of the President, before Hughes purchased it. And to these acts, which were the prerequisites in law that put the land in market, Hughes is not charged with being accessory.
   Mr. Justice CATRON

delivered the opinion of the court.

The attorney of the United States for the District of Louisiana on behalf of the United States filed an information in the nature of a bill in chancery, against David M. Hughes, having for its object the repeal and surrender of a patent for 175-AAj-acres of land, made to Plughes by the President of the United States, April 16, 1841. The bill proceeds on the ground that said patent was fraudulently obtained, being in violation of the rights of Sewall and Hudson, deriving title from John Good-bee, who entered the land as his preemption claim under the act of April 12,1814, paid the purchase-money, and got a certificate of purchase, in 1822, for 160 acres; but when the public surveys were executed, the legal subdivision was found to contain 15rV<r acres more, to which Goodbee’s right ’of preemption also extended.

The validity of Goodbee’s entries depends on the regulations of the land-office, made in pursuance of statutes enacted by Congress; and which statutes and regulations are accurately set forth by the Attorney-General in his argument in this cause, and need not be further stated here.

It appears that in 1836 Hughes entered the same land, with full knowledge that those holding possession under Goodbee’s title were owners and cultivating a sugar-plantation on it. The existence of Goodbee’s preemption right and better title was overlooked at the land-office in Louisiana, where the entry of Hughes was made; and again at the General Land-Office until after his- patent had issued.

As the bill was demurred to, no dispute can be raised on the question of fraud, nor can any doubt exist that this second purchase was fraudulently obtained, Sewall and Hudson being notoriously in possession of the land as owners when Hughes made his entry at the land-office.

. 1st. The first and main objection made for defendant Hughes is, that this proceeding is improper, and will not lie.

It is to be regretted that this was not a simple bill in equity brought by. the United States against the- defendant Hughes,, praying that the patent might be annulled and surrendered by a decree in chancery, without any attempt of assimilating the proceeding to an information brought by, the-Attorney-General on behalf of the crown, in England, to. repeal a patent. In this country, the lands of the United States, lying within the States, are held and subject to be sold (under the authority of Congress), as lands may be held and sold by individual owners, or by ordinary corporations; and similar remedies may be employed by the United States as owners, that are applicable in cases of others. This, we think, is manifest. It was so held in the case of King et al. v. The United States, 3 How. 773.

In substance, this is a bill in equity for and on behalf of the United States, beeáuse of an injury done to the United States by Hughes, the defendant, and we will not dismiss it for want of form.

By the Constitution, Congress is vested with power to dispose of the public lands, and to make all needful rules and regulations respecting them. - Under existing regulations; Good-bee had aright to enter.the land in dispute in exclusion of others, and did so; and the United States, as owner, having been paid for the land, was bound to make the purchaser a title, in the same manner that an individual would have been bound under similar circumstances.

As the patent' to Hughes is a conveyance of the fee, the United States stand divested of the legal title, and therefore cannot fulfil their engagement with Goodbee and his alienees, to whom they stand bound for a legal title, until the grant to Hughes is .annulled.

It is manifest, that, if the agents of an individual had been thus imposed on, the conveyance could be set aside because of mistake on part of such agents, and fraud on part of the second purchaser, in order that the first contract could be complied with. Nor can it be conceived why the government should stand on a different footing from any other proprietor.

Hughes has no right to complain, for so' soon as it was discovered that he had defrauded the government, and those claiming under it, his purchase-money was tendered, and a surrender of the patent demanded; but he refused to receive the money, or surrender his legal .advantage.

2d. The demurrer having been sustained, and the bill dismissed by the Circuit Court, it is insisted here that no appeal would lie, because the matter in dispute does not appear to have amounted to-$ 2,000.. All the assignments from Good-bee down to the present owners (Sewall and Hudson) are exhibited with the bill, as a part thereof; the first of which is a notarial conveyance from Goodbee to Bush, dated in 1822. It states that the consideration of $ 2,000 had been paid for ,thé land; and, there being a sugar-plantation on it, wé assume its value to be quite equal now. As we are bound by complainant’s allegation of value, no controversy can be raised on the fabt. If, however, any objection existed, value could be proved here in like manner as is usually done in cases of ejectment, where there is no allegation what the property in dispute is worth.

We are of opinion that the patent to Hughes should be vacated and annulled; and accordingly order that the decree of the Circuit Court of the District of Louisiana be reversed; and it is adjudged and decreed, that the patent made to David Michael Hughes by the President of the United States, on the 16th day of April, A. D. 1841, for 175TVk acres of land, being for • section. 54 in township 10 of range 12 east, in the district of lands subject to sale at New Orleans, Louisiana, be, and the same is hereby, vacated, and declared null and void. And it is also ordered and decreed, that said David Michael Hughes do, within one calendar month from the tíme of filing and entering the mandate of this court in the Circuit Court for the District of Louisiana, surrender said patent to the clerk of the aforesaid Circuit Court, who will certify on its face that said patent is annulled by this decree; which certificate he Will sign and further authenticate under the seal of his court, and then forward said patént to the Commissioner of the General Land-Office at Washington city.

And it is further adjudged and decreed, that said David Michael Hughes be, and he is hereby, for ever enjoined from prosecuting any suit in, law or equity bn said patent, as evidence of title. "

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby, reversed; and this court, proceeding to render such decree as the said Circuit Court ought to have rendered, doth order, adjudge, and decree, that the patent made to David Michael Hughes, by the President of the United States, on. the 16th day of April, A. D. 1841, for section 54 in township 10 of range 12 east, in the district of lánds subject tó sale at New Oflearis, Louisiana, containing 175acres of land, be, and the same is. hereby, vacated and annulled; that the said David M. Hughes do, within one calendar month from the time of filing the mandate of this court in the said Circuit Cdlirt, surrender said patent to the clerk of said court; that the said clerk shall certify under the seal of the said court, on the face of the said patent, that it is annulled by this decree, and then transmit the same to the Commissioner of the General Land-Office at Washington city ; that the said David M. Hughes be, and he is hereby, for ever enjoined from prosecuting any suit in law or equity on said patent as evidence of title. And it is further adjudged and decreed, that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to carry this decree into effect, and for such further proceedings to be .had herein, in conformity to the opinion of this court, as to law and justice may appertain.


text:
    The United States, Appellants, v. Thomas Power’s Heirs.
    The twelfth section of the regulations of O’Reilly in 17.70 required, that there should be .an order of survey, a proces verbal by1 the surveyor of the province, three copies of the plat made out by him, one of which should he deposited in the office of the scrivener of the government, and Cabildo, a second delivered to the governor, and the third to the-proprietor, to be annexed to the titles of the grant.
    Where a grant was alleged to have been issued by the Spanish governor of Louisiana in 1781, and the only evidence of it was a copy taken from a notary’s book, the title was. invalid.
    At the date of the grant, viz. 1st August, 1781, the Spanish governor of Louisiana was only the military commandant of that part of West Florida in which the lands granted were situated. He held the country by right of conquest. The Spanish laws had not been introduced into the country, and it was not ceded to Spain by Great Britain until 1783. The governor had therefore no authority to grant land in 1781.
    Under the acts of Congress of 1824 .and 1844, the District Court had no power to act upon, evidence of mere naked possession, unaccompanied by written evidence, conferring, or professing to confer, a title of some description.
    Under the various acts of Congress relating to land titles in that tract of country between the Iberville, the Perdido, and the thirty-first degree of north latitude, a complete title, unrecorded, is not barred against the United States, although it is barred against any private claim derived from the United States.
    This was an appeal from the District Court of the United' States for the Southern District, of Mississippi.
    . It was the cáse of a petition, and amended-petition, presented by the heirs- of Thomas Power to the District Court for the .Southern District of Mississippi, the first on the 15th of June, 1846, and the latter on the 11th of November, 1846, under the act of 1824, as révived and reenacted by that of 1844, claiming two very valuable'islands, lying off the coast of the State of Mississippi, opposite the Bay of Biloxi.

      The petition and amended petition, in substance, set forth, that, before the year 1760, Deer Island was occupied, with the verbal consent of the provincial authorities, by Pierre Laclede and Pierre Songy, who, .on the 11th of September, 1760, .sold all their rights to André Jung; that on the 7th of March, 1761, the said Jung made a similar sale to Ignace Brontin; and that, on the 8th of April, Brontin sold all his rights to Francisco Caminada.
    That afterwards, on the 1st of August, 1781, Caminada received a grant of the said island called Deer Island, and another called Ship Island, from Bernardo de Galvez, then Spanish governor of Louisiana, which, it is alleged, then extended to the east beyond the said islands, as follows, viz.: -r-
    “ Don Bernardo de Galvez, Knight Pensioner of the royal and distinguished Spanish Order of Charles the Third, Colonel ' of the Royal Army, Governor, Intendant, and Inspector-General of the Province of Louisiana, &c., &c.
    “ Considering the foregoing acts performed by Don Francisco Caminada, which establish the right of possession which he has to the two islands; Deer and Ship, situated in front of the coast of Biloxi, recognizing them to have been made out agreeably to the order of survey, without causing prejudice to the neighbors adjoining, and without any opposition on their part; on the contrary, yielding, as it appears, their assistance to the said acts, approving them as wé do.approve them, there- - for using the authority which the king has -confided to us (otorgamos), we grant in his royal name, to the said Don Francisco Caminada, the possession of the aforesaid two islands, Deer and Ship; that as his own property he may dispose of them, and enjoy them, governing himself by said acts, and observing in every thing that which has been ordered for' the settlement of the subject-matter.
    “We give these presents, signed with our hand, sealed with ' the seal of our arms, and countersigned by the undersigned Secretary of his. Majesty for this government.
    “ In New Orleans, on the 1st day of August, 1781.
    “ Bernardo de Galvez.
    “ By order of his Excellency.
    “ Manuel Andres .Lopez de Armesto.
    “ Registered in book of records for said object, in the archives of my office, at folio 14. New Orleans, November 8th, 1781.
    ' “ Leonard Marange, Notary.”
    • The above, being a notarial copy, was the only evidence exhibited of the grant. The original was lost.

      The petition farther stated, that on the 2d of December, 1806, Prosper Prieur, acting as the testamentary executor of Caminada, , sold' the two islands to Thomas Power, to whom the petitioners are heirs. ■
    The amended petition further stated, that Caminada was an inhabitant of Louisiana, where he lived and died; that the Surveyor-General of Mississippi, acting under instructions of the Treasury Department, was executing, by a deputy, a survey of the.islands, which- had not been completed; but Deer Island was estimated to contain-about two thousand acres, and Ship. Island, three thousand acres; that the petitioners had no knowledge or information of any adverse claim of title, save and except transient and temporary squatters, who from time to time had occasionally occupied parts of each island; and that they had no knowledge or belief that the title was ever presented by their ancestor to ''any board of commissioners whatever.
    To this petition the district attorney filed his answer on the 13th of January, 1847, and insisted that the original petition was "not filed within the. time-limited by the act of 1824 and the act of 1828 amendatory thereto; and that, the amended petition not having been filed until the 11th of November, 1846, the petitioners.were barred and precluded from the institution of any suit against the United States, who relied upon the| act of Congress of 1828 as limiting the right to <pne year. But if it should be decided that the limitation was two years, as provided in the act of 1824, they still insisted that the claim was barred, the- aménded petition not having been filed within two years from the passage of the act of 1844. The answer further denied the grant to Caminada in 1781, and the sale by his testamentary executor to Power. But if ever such a sale was made, they denied the right of the executor to make it, or to divest the rights of the heirs of Caminada, or pass any title to Power. They know nothing of the sale from. Laclede and Songy to Jung, or of the sale to Caminada, and they required proof of the identity and rights of the parties claiming. They further denied that, at the. time of the alleged grant in 1781, Caminada was an inhabitant' of Louisiana, or that he lived and died there, .or that any order of survey was executed for Caminada previous to the date of said alleged grant. . The answer further stated, that the allegations in the petition and amendment were no!; sufficient, if true, to authorize a decree against the United- States, and claimed the benefit of this objection in the same manner as if it had been relied upon by a demurrer.
    Documents were filed and evidence was taken, but it is not material to state the' substance of either.

      In November, 1848, the District Court decreed, “that the claim and title' of the petitioners to the two islands or parcels of land as before described be, and the same are hereby, confirmed to them,in full property, the said original /grant or title, in thé opinion of said court, being good.and valid, in virtue of' the patent therefor, and in virtue of the treaty of St.. Ildefonso, between Spain and France, of' date October,. 1800, and of the treaty of Paris of 1803, for the cession of -Louisiana to the United States, and by the laws of nations, and by the acts of. Congress hereinbefore referred to, under which this court has cognizance of said case.
    “ And it is further adjudged and decreed, that, the two several islands aforesaid having each its natural boundary, a survey thereof is therefore dispensed with, and that the petitioners’ tide be confirmed to them in the whole extent of the natural boundaries of said islands respectively.; and if; on investigation, it shall appear that the.United States has heretofore- made sale of all or any part of said islands, then, as to such sales¡ the title hereby confirmed shall stand qualified and inoperative as to the specific land so sold, and, in place and stead of the land so sold, the petitioners-shall be permitted to enter a'like quantity of land within the same land-'district, which may be subject to sale at private entry.” ■
    ■ The United States appealed to this court. .
    The appeal was argued by Mr. Crittenden (Attorney-General), for the appellants, and submitted upon printed argument by Mr. Henderson, for the appellees.

      Mr. Crittenden

    contended that the decree must be reversed, for the following reasons.
    I. That on the 1st of August, 1781, the date of' the alleged grant, Governor Galvez had no authority to make the grant of Ship Island and Deer Island to Caminada, the cession by Great Britain to Spain of that part of the country where they lie- not having been made until the definitive treaty of peace, of the 3d of September, 1783.
    By the treaty of peace of 1763, between Great Britain, France, and Spain, it was agreed between France and Great Britain, “ that, for the future, the confines between the dominions of his Britannic Majesty and those of his -most Christian Majesty, in that part of the world, shall be fixed irrevocably by a line drawn along the middle of the River Mississippi, from its .source to the River Iberville, and from thence by a line drawn along the middle of- this river and the Lakes Maurepas and Pontchartrain to the sea; and for this purpose the most Christian king cedes in full right, and guarantees to his Britannic Majesty, the river' and port of Mobile, and every thing which he possesses, or ought to possess, on the left side of the River Mississippi, with the exception of the town of New Orleans, and of the island in which it is situated, which shall remain to France.” 2 Clark’s Land Laws, Appendix, 258.
    War having been declared by Spain against Great Britain, in 1779, Galvez proceeded with a considerable force to invade the British territory, and on the 14th of March, 1780, Fort Charlotte, on Mobile River, capitulated to him. . Pensacola also afterwards capitulated to him, on the 9th of May, 1781.
    The treaty by which Great. Britain ceded the Floridas to Spain is dated the 20th of January, 1783.
    The authorities to sustain the proposition are, 1 Kent, 169; Wheat. Elements, 572; Clark v. U. States, 3 Wash. 104; U. States v. Hayward, 2 Gallis. 501; Polk’s Lessee v. Wendell, 9 Cranch, 99; Poole v. Fleeger, 11 Peters, 210; U. States v. Reynes, 9 Howard, 127; Davis v. Police Jury of Concordia, Ibid. 280; U. States v. Heirs of D’Auterive, 10 Howard, 609, decided the present term.
    II. That there is no sufficient evidence of the execution of the alleged grant by Galvez, and, even if it were proved,. the claim under it cannot be recognized, because the said alleged grant was not presented and recorded in pursuance uf the fourth section of the act of the 25th of April, 1812, entitled “ An act for ascertaining the titles and .claims to lands in that part of Louisiana which lies east of the River Mississippi and island of New Orleans:” 2 Stat. at Large, 715.
    III. That if the grant to .Caminada were valid, the petitioners have,shown no title under it in Thomas Power, or in them as his heirs, as required by the act of 1824; The deed by Prieur to Power is not proved, and if it were, it is not shown that Prieur had any authority to make it.
    IY. That" the petitions were hot filed within .the time limited by law, and should have been dismissed.

      Mr. Henderson, for the defendants in error,
    made the following points.
    First Point. The title of petitioners rests on. a full, complete, and perfect grant, — -a patént', the.original of which is filed in this ease, and is sixty-nine years old. It was, and is, effective against all private persons, without' further confirmation by the United States; and when, ms how, rightfully - exhibited against the United States, is-equally valid- against them, as perfect evidence of private, property; and though a full legal title, — a “ Spanish grant,”— is within"the. direct cognizance of the first section oi the act of 1824, and the propér subject of this statutory jurisdiction in equity. 9 Peters, 733.
    Second Point. The title, out of the United States, being perfect, legal, and indefeasible, the only question remaining is the right of the petitioners to that title.
    Our first position on this point is, that the United States have no right or jurisdiction to try the questiori of title between the heirs of Caminada, the grantee, and the heirs of Power, who claim as assignees of the grantee. That, while it may be a matter of judicial propriety that the United States should require a prima fade showing by the petitioners that they properly represent the “ claim ” in controversy, yet they have no right to demand an issue to try that question as between parties not.before the court. It is for the United States,.under the la v of 1824, to test the validity of the claim, and ascertain if the land in controversy is private property. The State tribunals, where the lands lie, will adjudge the title between its citizens. This inquiry cannot be thus incidentally invoked. 13 Peters, 375; 17 Louisiana, 479.
    But, as the attorney of the United States in the court be- . low pressed-this issue upon us, it may be necessary we should sustain it here. It involves the inquiry, that, as the petitioners claim title by a notarial act of conveyance, made' to their am cestor in New Orleans, in 1806, by Prosper Prieur, as.testamentary executor of Caminada, of the lands in question, is there proof enough in this case, in the absence of direct evidence of the last will of Caminada, and of Prieur’s appointment to administer it, to sustain. Prieur’s act of sale to Power ?
    And on this^ point we assume, that this act, being notarial and authentic, is quasi judicial, and will be presumed to have been done by proper authority. 9 Pet. 625; 3 Har. & McHen. 594; 6 Greenleaf, 145; Civil Code of Louisiana, 2233. And at the date of this sale in 1806, the locus in quo formed part of the “ Territory of Orleans.”.
    And next, that this conveyance, being now forty-iour years old, requires no proof to authenticate its due and proper execution, and that this rule of presumption of the due execution of the deed necessarily includes all the concomitant prerequisites to its execution. 1 Greenleaf’s Ev. § 2l, § 144; 14 Mass. 257; 6 Greenleaf, 145; 14 Johns. 182; 10 Ib. 475; 9 Ib. 169; 2 Hawks, 233; 3 Har. & McHen. 594; 7 La. 370; 2 How. Miss. 819; 5 Ib. 586; 6 Sm. & Mar. 284; 2 Rob. La. 84, 85; 1 Stark. Ev. 331, 332, note; 2 Stark. 924, notes 1, 2; 4 Wheat. 221; 7 Pet. 266; 2 How. U. S. 316; 7 Sm. & Mar. 159; 9 Pet. 674.
    Third Point. But if the presumptions of law in fávor of the deed, from its age, &c., were not sufficient, we have, by the testimony of Johnson and Janin, proved sufficient search- for the mortuary proceedings on Caminada’s'estate, to lay the foundation of the secondary proof we have offered. 1 Greenl. Ev. § 84, and notes; 6 Greenl. 145; 14 Johns. 182. And we suppose the testimony of these witnesses, as to the lost record, — whereon the Spanish governor (the highest judicial officer of "the province) had several times, by his signature, recognized the executorial capacity of Prieur, — and the abstract of the record filed with Johnson’s deposition, quite satisfactory, as secondary evidence, that Prieur was in verity the executor of Caminada.
    And as between Caminada’s heirs and the heirs of Power, the title of the latter is now good by prescription. Power’s, heirs claim title, with the- original grant in possession. This claim -of title of unimproved lands draws after it possession commensurate with the grant. 2 Lomax’s Dig. 132; 7 SpR & Mar. 130.
    So that their - possession, and that of their ancestor, Is now of forty-four years’ continuance, without contest or molestation.
    For all. these reasons, we conclude the title derived by Thomas Power from the estate of Caminada Is good and valid in this respect, and hence good to the extent claimed.
   Mr. Justice CATRON

delivered the opinion of the court.

In this case the petition sets forth that, before the year 1760,1 Deer Island was. occupied, with the verbal consent of the provincial authorities, by Pierre Laclede and Pierre Songy, who on the 11th of September,' 1760, sold their-right of property thereof, and -the improvements thereon, to Andre Jung; and that he made a similar sale tojgnace Brontin; that said Brontin sold the same to Francisco Caminada, who for a great length of time thereafter occupied said island; and that in 1806 ^ Prosper Prieur', acting as the testamentary executor of Caminada, sold to Thomas Power, ancestor of complainants, two islands, known as Deer and Ship Islands, -for which two islands Francisco Caminda'received a complete grant, August 1st, 1.781, from Bernardo de Galvez, then Spanish governor of the Province of Louisiana.

The answer denies all these facts, and requires proof.

This claim was presented to the District Court for the first time, never having been laid before a board of commissioners,- .or any step taken in regard to it, previously to its exhibition with the petition, June 15th, 1846.

- In the District Court it was held that the grant for both islands was valid, and a decree was rendered against the United .States. ’

No evidence was introduced to prove that such grant had been made, other than á Spanish copy certified by a notary, from the Spanish records in his office. ' The notarial record purports to have been made November 8th, 1781. This copy recites that it was founded on a petition of Caminada, asking for the grant in consideration of acts performed by him; and was made out agreeably to an order of survey and proces verbal, with the assent and assistance of the neighbors; which survey and proces verbal the governor approves, and on these proceeds to grant.

Assuming that the Spanish regulations had been adopted in Florida, then the rule governing surveyors, existing in 1781, is. found in the twelfth regulation of O’Reilly of 1770. It requires the aqts to be done which are recited in the grant, and directs that three copies shall be made of the plot and proces verbal by the surveyor of the provinqfe, one of which shall be deposited in the office of the scrivener of the government, and Cabildo; .another shall be delivered to the governor, and a third to the proprietor, “ to be annexed to the titles of the grant.”

Nothing of the kind here appears. The only evidence is, that the grant was recorded on the notary’s books, whether in the proper office, to which a copy of the plan of survey and proces verbal should have been returned, according to O’Reilly’s regulation, does not appear, although we suppose it was the proper office, where one copy should have been deposited by the surveyor; yet no authority existed, for recording the grant there, so far as we are informed: and if there had, no complete title was recorded, as such title had to be accompanied by the plot and proces verbal,' describing the land granted, pn this unsupported and mutilated copy alone the decree of the District Court is founded. . ,

Our next inquiry is, whether Galvez, who purports to have made the grant, had power to do so on the 1st of August, 1781.

1. By the laws of nations, in all- cases of conquest, among civilized countries, having established laws of property, the rule is, that laws, usages, and municipal regulations in force at the' time of the conquest remain in force until changed by the new sovereign. And this raises the question of fact, whether the king of Spain had changed the laws of England existing in the province, by virtue of which the public domain could be granted' to private owners, as early as August 1st, 1781, and in their stead adopted the laws of Spain prevailing in Louisiana; as, if the Spanish king had not done so, his officers had no power to grant. Having nothing to govern us in ascertaining this fact but the history of Florida and of its conquest by Spain, it becomes necessary to examine that history, in so far as the same may be judicially noticed, and has any bearing on the claim before us.

It was first discovered, inhabited, and governed by France as part of Louisiana, and by that power ceded to Great Britain. By the treaty of- peace of 1763, the boundary between France and Great Britain was declared to be through the Iberville, Lakes Maurepas and Pontchartrain, to the sea; and the French king ceded the river and port of Mobile, and every thing he possessed on the left side of the Fiver Mississippi, with the exception of the town of New. Orleans and the island on which it is situated. Déer and Ship Islands were therefore included in this cession to' Great Britain.

The king of Spain, by another article of the same treaty, .ceded to Great Britain Florida,, with the fort of St. Augustine and the Bay of Pensacola, as well as all that Spain possessed on the continent of North America to the east or southeast of the River Mississippi.

In 1763 the king of Great Britain by proclamation created the governments of East and West Florida. The government of West Florida was bounded to the southward by the Gulf of Mexico, including all islands within six leagues of the coast, from Appalachicola to Lake Pontchartrain ; to the westward by the Mississippi, Lakes Pontchartrain and Maurepas; to the north by the thirty-first degree of north latitude; and to the east by the Fiver Appalachicola. In 1764, the northern line of Florida was extended by Great Britain from the Appalachicola, at the thirty-first degree, to the mouth of the Yazoo, on the Mississippi Fiver,,

Unzaga, having been appointed Captain-General of the Caraccas, was, by a royal schedule of the 10th of July,. 1776, directed to surrender provisionally the government and intendancy of Louisiana to Bernardo ■ de Galvez, colonel of the regiment of Louisiana.

Spain having declared war against Great Britain on the 8th of May, 1.779, on the 8th of July following a royal schedule was issued, authorizing the Spanish subjects in the Indies to take part in the'war.

With the official account of the rupture, Galvez, who had hitherto from July 1, 1777, exercised the functions of governor pro tempore, received the king’s commission of governor and intendant. The commission is dated 8th May, 1779, the day of the declaration of war, and is confined to the Province of Louisiana;

Galvez, on receipt of this commission, determined 1b attack -the British possessions in his neighborhood, and accordingly did so. On the 21st. of September, 1779, Baton Rouge, Natchez, and other posts in the same part of the country, capitulated to him.

His success was rewarded by a commission of brigadier-general, 1780.

Early in January, 1780, he proceeded to attack Fort Charlotte, on the Mobile River, which capitulated, 14th March, 1780. Shortly afterwards he proceeded to attack Pensacola, but his transports having been dispersed, and some of them lost by a storm, he went back to Havana, whencé he had set out.

In 1781, he was promoted to the rank of mariscal de campo.

On the 28th of February, 1781, he 'left Havana, again to attack Pensacola, and on the ,9th of March landed his troops, and on the 9th of May the British forces capitulated. By express terms of the capitulation, the whole province of West Florida was surrendered to Spain; Don Arthur O’Neil, an Irish officer in the service .of Spain, was left in command at Pensacola.

The alleged ’ grant by Galvez to Caminada bears a subsequent date, viz. New' Orleans, 1st August, 1781; less than three months after the capitulation of Pensacola.

In the caption of the grant, Galvez is styled Colonel of the Royal Army, Governor and Intendant of the Province of Louisiana.

Mazange, who certifies the copy as registered in his office; was appointed clerk of the Cabildo, 1st January, 1779, and held the office until January, 1783.

The preliminary articles of peace between Spain and Great Britain were signed at Paris, 20th January, 1783. By the third article it. is stipulated that “his Britannic-Majesty will' cede to his Catholic Majesty East Florida, and his said Catholic Majesty will retain West Florida.”

At the date of the grant, Spain held in military occupation the country to the east of the island of Orleans, under the capitulation of Pensacola, liable to be divested by reconquest or surrender by a treaty of peace.

Nothing is found in these historical details indicating that the Spanish laws had been introduced into Florida, and superseded those of England, and that civil power had- been vested in Galvez to grant lands. As this could only be .done directly by the king, all presumptions are opposed to such supposition. The grant purports to have been made within eighty days, after the capitulation of Pensacola; a time, at that day, hardly sufficient to have heard from Spain, after the account of the capitulation reached there, had there been no hostile British fleet intervening to intercept intercourse. But what would seem_ to bé conclusive of the fact is; that Galvez did not assume tci grant by any new authority, but did so under his commission as governor of Louisiana; and as this bore date before the conquest, and did not extend'to Florida, no such power could be exercised by force of that commission. And not having power to grant merely as a military officer in command, the grant could not be made by him, and is void. Nor can we suppose that, Galvez made any grant of the date of' August 1, 1781, as such assumption would be a reproach on his high standing and intelligence.

2. The grant having no force, the next question is, whether complainants have shown any equity entitling them to a decree. As to Deer Island, it is alleged that those under whom Caminada claimed had possession by verbal permission from government for many years under France and Great Britain. But no proof of the fact was made; and if there had been such proof, it would be of no value, as the District Court did not possess power to act on evidence of naked possession unaccompanied by written evidence conferring, or professing to confer, a title of some description.

As respects Ship Island, it is not pretended that any equitable claim to it existed antecedent to the date of the grant.

3. If we . had found this to be a legal and perfect title, then the rule laid down in the- case of Reynes, at the last term, would apply, and compel us to dismiss the petition for want of jurisdiction, because the act of 1824 did not confer power on the District Courts to decide on perfect grants; but as a mutilated title-paper is here set up, unaccompanied by a plan of survey and proces verbal, which the grant refers to as a part thereof, and as an equity standing in advance of the grant is. relied on by the petition to one of the islands, it is our duty to act on the mutilated title, and on the assumed equity, and ascertain whether the claim as- set forth by complainants can be sustained.

We cannot declare in advance, that there is no equity in the pretensions set up by complainants, as the act of l824 imposes on us the duty “ to hear and determine all questions arising in the cause relative to the title of the claimants ” ; that is to say, in all cases where the title was not perfect according to the laws of Spain, when our government acquired Louisiana, and by a final decree to settle and determine the question of validity of title. - And this must be done, regardless of the fact whether the equity set up be weak or strong in our judgment.

In the case' of Reynes there was a perfect and formal Spanish grant set forth by complainant, and admitted to exist as set forth by the United States; and the only question was, whether jurisdiction in the Spanish government was wanting over the country where the land lies at. the time the grant bears date. No question arose on the face of -that title, but on the extraneous fact, that the land lay beyond the Spanish jurisdiction. The cases are widely different.

4. It was earnestly insisted in argument, that this claim is barred, because it had not been recorded as prescribed by Congress. . And as this question is prominently presented in the record, and has been fullv examined, it is deemed proper to decidé it.

By the first section of the act of the 26th of March, 1804 (1 Land Laws, 112), “ all that portion of country ceded by France to the United States under themamé of Louisiana which lies south of the Mississippi Territory, and of an east and west line to commence on the Mississippi River at the thirty-third degree of north latitude and to extend west to the western boundary of the said cession, shall constitute a territory of the United. States under the name of the Territory of Orleans.”

The limits to' the east from the Mississippi River extended to the Perdido, that river having been claimed by the United States as the boundary of Louisiana on the east from the execution 'of the treaty of cession.

By the act of the. 2d of March, 1805 (1 Land Laws, 122), An Act for ascertaining, and adjusting the titles and claims to land within the Territory of Orleans and District of Louisiana,” the Territory of Orleans was to be laid off into two districts, in such manner as the President should direct, in each of which he should appoint a register, who, together with two other persons to be by him also appointed, should be commissioners for the purpose of ascertaining the rights of persons claiming under any French or. Spanish grant, or under the first two sections of the act. The first section applies to claims under any duly registered warrant or order of survey obtained from the French or Spanish government. The second applied to persons who, with permission of the proper Spanish officer, and in conformity with the laws, usages, and customs of the Spanish government-, had made an actual settlement on a tract of laird not claimed by virtue of the preceding section.

The act further provides, that every person claiming lands by virtue of any legal French or Spanish grant made and completed before the 1st of October, 1800, may, and every person claiming lands by virtue of the first two sections of the act, pr by virtue of any grant or incomplete title bearing date subsequent to the 1st of October, 1800, shall, before the 1st of March, 1806, deliver a notice to the register stating his claims, together with a plat, and deliver to the register for the purpose of being recorded every grant, order of survey, deed, conveyanee, or other written evidence of his claim. Provided that, where lands are claimed by virtue of a complete French or Spanish grant, it shall not be necessary to have any other evidence recorded except the original grant or patent, and the warrant, or order of survey, and the plat, but the other evidepce should be deposited with the register; “ and if such person shall neglect to deliver such notice in writing of his claim, together with a plat as aforesaid, or cause to be recorded such written evidence of the same, all his right, so far as the same is derived from the two first sections of this act, shall become void, and thereafter for ever be barred; nor shall any incomplete grant, warrant, or order of survey, deed of conveyance, or other written evidence which shall not be recorded as above directed, ever after be considered or admitted as evidence in any court of the United States against any grant derived from the United States.”

This last provision does not apply to complete titles, (as Caminada’s assumed to be,) but to claims under incomplete titles, and claims arising from possession and cultivation under the first and second sections of the act.

It is not very clear what was comprehended within the limits - fixed by the .President as the eastern district. In a letter from the Secretary of the Treasury to the register at New Orleans, dated 30th March,1805 (2 Land Laws, 666), it is said, “for the present all that part of the territory which lies east of the Mississippi,” together with certain parishes on the west bank, will- belong to the eastern division.

By the third section of the act of the, 2,st of April, 1806, supplementary to the act of 1805 (1 Land Laws, 139), the tíme fixed for delivering notices and evidences of claims is extended to the 1st . of January, 1807, but the rights of persons neglecting shall be barred, and the evidences of their claims never afterwards, admitted as evidence, in the same manner as had' been provided by the. fourth section of the act of 1805.

This provision, therefore, only applied to incomplete titles and claims under possession and cultivation, and not to complete grants.

By the fifth section of the act of the 3d of March, 1807 (1 Land Laws,' 153), “ An Act respecting claims to land in the Territories of Orleans and Louisiana,” the time for delivering notices and evidences of claims was further extended till the 1st of July, 1808, but the rights of persons neglecting, “ so far as they are derived from, or' founded on, any act óf Congress,” shall ever after be barred and become void, and the evidence of their claims never afterwards be admitted as evidence in any court of law or equity whatever. This provision, also, it will be seen, did not touch complete! grants.

By the act of the 23d of April) 1812, “ An Act giving further time for registering claims to land in the-Eastern District of Louisiana,-” persons (actual settlers on the land which they claimed) were allowed until the 1st of November, 1813, to deliver notices and evidences of their claims, with the same provision as to neglect as in the act of 1807.

■ Complete grants were therefore still untouched.

It is proper here to mention, that, in the summer of 1810, a lumber of citizens of the United States, who had removed to the neighborhood, of Bayou Sarah, took the fort of Baton Rouge from the Spanish authorities, and,, in a convention which afterwards met, declared their independence and framed a constitution.

Upon receiving information that the Spanish troops had been driven from Baton Rouge, Mr. Madison, then President, issued a proclamation on the 16th of October, 1810, setting, forth that the territory south of .the thirty-first degree of north latitude east of the Mississippi hs far as the Perdido, of which possession had not yet been delivered to the United States, had ever been considered and claimed by them as part of the country, they had acquired by the treaty of 1803. He therefore announced that he had deemed it right and necessary that possession should be immediately taken of the said territory in the name and behalf of the United States, and the governor of the Territory of Orleans was directed to carry the views -of the United States into execution. Governor Claiborne accordingly did so, and on- the 7th of.December, 1810, hoisted the flag of the United States at St. Francisville, without opposition, and announced the event by a proclamation, and subsequently established'in this new part of the Territory of Orleans the parishes of Feliciana, East Baton Rouge, St. Helena. St. Tammany, Biloxi, and Pascagoula.

No attempt was made to occupy the town of Mobile, nor any part of the country around it, and the Spanish garrison of Fort Charlotte was left undisturbed; Governor Claiborne having been specially instructed not to take possession by force of any post in which the Spaniards had a garrison, however small it might be.

.By an act of the 12th of February, 1813, the President was authorized to occupy and hold all that tract of country called West Florida not now in possession of the United States. 3 Stat. at Large, 472.

In pursuance of this act, possession was taken, by order of the President; the governor of Louisiana having done so by the President’s directions.

These proceedings having placed tHe United States in the actual possession of West Florida as far as Mobile, Congress on the 25th of April, 1812, passed “ An Act for ascertaining the titles and claims to lands in that part óf Louisiana which lies east of the River Mississippi and island of New Orleans.” 1 Land Laws, 208. By the first section of this . act it is enacted* that for the purpose of ascertaining the titles and claims to land in that tract of country which'lies south of the Mississippi Territory, east of the River Mississippi and island of New Orleans, and west of the River Perdido and a line drawn with the general course thereof to the southern boundary of the Mississippi Territory, the lands within the said limits shall be laid off into land districts between' which Pearl River shall be the boundary, and for each of which districts a commissioner shall be appointed.

By the fourth section it is .enacted, that every person claiming lands in the said tract of country, by virtue of any grant, order of survey, or other evidence of claim whatsoever, derived from the French, British, or Spanish governments, shall deliver to the commissioner a notice in writing, stating the nature and extent of his claim, together with a plat, and shall deliver to the commissioner, for the purpose of being recorded, every grant, order of survey, deed, conveyance, or other written evidence <?f his claim, and the same shall be recorded. “ Provided that, where lands are claimed by virtue of a complete French, British, or Spanish grant, it shall not be necessary for the • claimant to have apy other ’evidence of his claim entered at large on the record, except the original grant or patent, together with the order of survey and the plat; all the other conveyances or deeds may be abbreviated in the entry, but the' chain of title, and the date of every transfer shall appear on the record. And, if such person shall neglect to deliver such.notice in writing of his claim, together with the plat (in case the lands claimed shall have been surveyed), as aforesaid, dr cause to be recorded such written evidence of the same within" the time and times as aforesaid, his claim, shall never after be recognized or eon-firmed by the United States; nor shall any grant, order of survey, deed, conveyance, or other written evidence, which shall not be recorded as above directed, ever after .be considered or admitted as evidence in any court of the United States against any grant which may hereafter be derived from the United States.”

The plain meaning of this provision is, that no Spanish claim not recorded shall be evidence in cases where the same land has been granted .by the United States, and a contest arises between the two grants.

This act, it is appreheuded, is the first provision under which ' the grant to Caminada could have been brought forward; as at the time of its passage the United States had come into actual possession of the country where the islands are situated.

By the act of 18th April, 1814, supplementary to the act of 1812, the time for delivering notices and evidénces of claim was extended to the 1st of September, 1814. 1 Land Laws, 2.47.

The act of 3d March, 1819, “ An Act for adjusting the claims to land and establishing land-offices in the districts east . of the island of New Orleans,” confirms claims reported under the act of 1812, and confers on the registers and receivers of Jackson Court-House and St. Helena Court-Hopse the same powers as the commissioners east and west of Pearl River had. By the sixth section it is declared, that every person claiming land, whose claims had not before been filed, “ shall be allowed until the 1st of July, 1820, to deliver notices in writing and the evidences of their claims to the register of the-land-office at Jackson Court-House and at St. Helena Court-House, and the notices and evidences so delivered within the time limited by this act shall be recorded in the same manner as if the same had been delivered before the eommissiqners closed their said registers.”'

By the act of 24th May, 1828, “ An Act supplementary to the several acts providing for the adjustment of land claims in the State of Mississippi,” it is provided, that claimants of lands within that part of the .limits of the land district of Jackson Court-H°use below the thirty-first degree of north latitude, whose claims had been presented to the commissioners or to the register , or receiver under the act of 3d March, 1819, which had not been reported to Congress, or had not been-presented to the said commissioners or register and receiver, were allowed to the 1st of January, 1829, to present their titles and claims to the register and receiver at Jackson Court-House, whose powers and duties shall be, in relation to the samé, governed by the provisions of the acts before recited, and of the act of 8th May, 1822.

Although the act of 1812 is. not directly cited in the act of 1828, yet it was meant to bd included, as it was under that act that the first commissioners were appointed. The register and receiver were appointed under the act of 1819. Neither the act of 1812, nor any succeeding act,.barred a claim to land not surveyed and sold by the United States; and Ship and Deer Islands remaining unsold,-the claim before us stands unaffected by the legislation of Congress. That such was the obvious understanding of Congress when fhe act of 1824 was passed, under which we are exercising jurisdiction, appears by the eleventh section of that act. It protects purchasers under the United States, but not the government itself, as to any lands not surveyed and sold.

But aside from this consideration, for the reasons previously stated, we adjudge the claim to be invalid, and order the petition to be dismissed.

Order.

This cause came on to be heard on the transcript of the record from the District Court of the United States for the Southern District of Mississippi, and was argued by counsel... On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said District Court in this cause be, and the same is hereby, reversed and annulled, and that this cause be, and the same is hereby, remanded to the said District Court, with directions to dismiss the petition of the claimants


text:
    Isaac Larman, Plaintiff in error, v. James Tisdale’s Heirs.
    The fifty-fourth rule of this court,requiring an appearance to be entered on or before ■ the second day of the term next succeeding that at which the casé is docketed, does not include an adjourned term; but applies only to regular terms.'
    Mr. Stanton, of counsel for the defendants in érror, moved the court, on the 28th of February, 1851, to dismiss this case, under the fifty-fourth rule of the court, which rule is repeated. amongst the preliminary matter in 8 Howard, and-is as follows : —
    “ Nd. 54.'
    “ Ordered, that where an appearance is not entered on the record for either the plaintiff or defendant on or befpre the séc-, ond day of the term next succeeding that at which thg case is docketed, it shall be dismissed at the costs of the plaintiff”
    Whereupon this court, not being now here sufficiently advised of and concerning \yhat order to render in the premises, took time to consider.
    On the 4th of March, 1851, Mr. Chief Justice TANEY delivered the opinion of the court. •
    The fifty-fourth rule applies to cases docketed at the regular term ; and not to an adjourned term. For it may happen that an adjourned term may be held immediately preceding the regular session.

      This case was not docketed until after the close of the regular term'of the court, and is, therefore,' not within the rule., .

      Order.

    Un consideration of the motion made in this case by Mr. Stanton, on a prior day of the present term, to wit, on Friday the 28th ultimo; it is now here ordered by the court, that said motion be, and the same is hereby, overruled.