author: Mr. Justice McLEAN

text:
    Robinson Lytle and Lydia Louisa Lytle, his Wife, Elias Hooper and Mary E. Hooper, his Wife, and Nathan H. Cloyes, a Minor, under twenty-one years of age, by Wiley Clayton, his Guardian, v. The State of Arkansas, William Russell, the Real Estate Bank of the State of Arkansas, the Trustees of said Real Estate Bank aforesaid, Richard C. Byrd, James Pitcher, Wm. P. Officer, Ebenezer Walters, John Wassell, John W. Cocke, Frederick W. Trapnall, George C. Watkins, Samuel H. Hempstead, John Robins, John Percefull, James S. Conway, Henry F. Pendleton, Jacob Mitchell, Thomas S. Reynolds, John H. Leech, Wm. E. Woodruff, Chester Ashley, Wm. J. Byrd, Wm. W. Daniel, and John Morrison and Edney, his Wife.
    The preemption act of May 29th, 1830, conferred certain rights upon settlers npon the public lands, upon proof of settlement or improvement being made to.the satisfaction of the register and receiver, agreeably to the rules prescribed by the Commissioner of the General Xand Office.
    The commissioner directed-the proof to be taken before the register •and receiver, and afterwards directed them to file the proof where it should establish to théir entire satisfaction the rights of the parties.
    "Where the proof was taken in presence of the-register only, but both officers decided • in favor of the claim, and the money paid by the claimant was received by the commissioner, this was sufficient. The commissioner had power to make the regulation, and power also to dispense with it.
    This proof being filed, there was no necessity of reopening the case when the public surveys were returned.
    The circumstance that the register would not afterwards permit the claimant to enter the section, did not invalidate the claim.
    The preémptioner had no right to go beyond the fractional section upon which his improvements were, in order to make up the one hundred and sixty acres to which settlers generally were entitled.
    No selection of lands under a subsequent act of Congress could impair the right of a presmptioner, thus acquired.
    This case was brought up from the Supreme Court of the State of Arkansas, by a writ of error issued under the twenty-fifth section of the Judiciary Act.
    It involved the validity of an entry of four fractional quarter-sections of land, one of which only, namely, the northwest fractional quarter of section number two in township one north of range twelve west, was passed upon by this court.
    The history of the claim is this;
    The- act of Congress passed on the 29th of May, 1830 (4 Stat. at Large, 420), gave to every occupant of the public lands prior to the date of the act, and who had cultivated any part thereof in the year 1829, aright to enter at .the minimum price, by legal subdivisions, any number of acres not exceeding one hundred and sixty, or a quarter-section, to include his'improvement ; provided, the land shall not have been reserved for the use of the United States or either of the several States.
    In the third section of the act it is provided, that, before any entries being made under the act, proof of settlement or improvement shall be made to the satisfaction, of the register and receiver of the land district in which the lands may lie, agreeably to the rules prescribe ’1, by the Commissioner of the General Land Office for that purpose. ■
    On the 10th of June, 1830, the commissioner issued his instructions to the receivers and registers, under the above act, in which he said, that the fact of cultivation and possession re-. quired “ must be established by the. affidavit of the .occupant, supported by such corroborative testimony as may be entirely satisfactory to both; the evidenee must be taken by a justice of the peacé in the presence of the register and receiver.” And the commissioner directed, that, where the improvement was wholly on a quarter-section, the occupant was limited to such quarter; but where the improvement is situated in different quarter-sections adjacent, he may enter a half quarter in each to embrace his entire improvement.
    Anothér circular, dated 7th February, 1831, was issued, instructing, the land officers, where persons claiming preemption rights had been prevented, under the above circular, from making an entry, “ by reason of the township plats not having been furnished by the surveyor-general to the register of the land office, the parties entitled to the benefit 'of said act may be permitted to file the proof thereof, under the instructions heretofore given, identifying the tract of land as well as circumstances will admit; any time prior to the 30th of May next.” And they were requested to “ keep a proper abstract or list of such cases wherein the proof shall be of a character sufficient to establish, to .their entire satisfaction, the' right of the párties, respectively, to a preemption,” &c. “No payments, however, were to- be received on account of preemption rights duly established, in cases where the townships were known to be surveyed, but the plats whereof were not in their office; until ntey shall receive further instructions.”
    It may be here remarked, that the public surveys of the land in question were not completed until the 1st of December, T833, nor returned to the land office until the beginning of the year 1834.
    On the 2d of March, 1831, Congress passed an act (4 Stat. at Large, 473), “ granting a quantity of land to the Territory of Arkansas, for the erection of a public building at the Seat Of government of said Territory ” ; but this act did not desighate what specific tract of land should be granted for that purpose.
    On the 23d of April, 1831, Cloyes filed the following affidavit in the office of the register, in support of his claim to a preemption right.
    “ Preemption Claim, May 29, 1830.
    “Nathan Cloyes’s testimony, taken on the 23d of April, 1831,. before James Boswell, a justice of the peace for the County of Independence, in. the register’s office, in the presence' of the register.
    “ Question by the Register. What tract of the public lands did you occupy in the - year 1829) that you claimed a fight of preemption upon ?
    “ Answer. On the N. W. fract. i of sec. 2, in township 1 north of range 12 west, adjoining the Quapaw line, being the first fraction that lies on the Arkansas River, immediately below the town of Little Rock, and contains about twentyreight or twenty-nine acres, as I have been informed by the county surveyor of Pulaski County ; and I claim under the law the privilege to enter the adjoining fraction or fractions, so as not [to] éxceed one hundred and sixty acres, all being on the river below the before-named' fraction.
    “ Question as before. Did you inhabit and cultivate said fraction of land in. the year 1829.; and if so, what improvement had you in that year in cultivation ?
    “ Answer. I did live on said tract of land in the year 1829, and had done so since the year 1826; and in the year 1829 aforesaid, I had in cultivation a garden, perhaps to the extent, of one acre; raised vegetables of different kinds, and corn for roasting years (ears), and I lived in a comfortable dwelling, east of the Quapaw line, and on the beforer-named fraction.
    “ Question as before. Did you continue to reside and ciilti-. vate your garden aforesaid on the before-named, fraction until the'29th of May, 1830 ?
    “ Answer. I. did, and have continued to do so until this time.-
    “ Question as before. Were you, at the passage of the act of Congress under which you claim a right of preemption, a farmer; or, in other words, what was your occupation ?
    “ Answer. I was a tin-plate worker, and cultivated a small portion of the fraction before named for the comfort of xny family, and carried on my business in a shop adjoining my house.
    “ Question as before. Do you know of any interfering • claim under the law, that you claim a preemption right upon the fraction whereon you live ?
    “ Answer. I know of none. And further this deponent saith not.
    “Nathan Cloyes.
    “ Sworn and subscribed to before.me, íthe date aforesaid.
    “ J. Boswell, J. P ’:
    On the same day, Cloyes filed also the corroborative testimony of John Saylor, Nathan W. Maynor, and Elliott Bursey.
    On the 28th of May, 1831, the register and receiver made the following entry, and gave Cloyes the following certificate.,
    “ Preemption Clajm, 29th May, 1830.
    “ Nathan Cloyes, No. 24, N. W. fractional J 2, 1 N. 12 W. granted for the above fractional J,. and reject the privilege of entering the adjoining fractions. May 28, 1831.
    “H. Boswell, Register.

    John Redman. Receiver.”

      On the 15th of June, 1832, Congress passed an act (4 Stat. at Large, 531), granting one thousand ;acres of land to the.Territory of Á "kansas, “ contiguous tó, and adjoining the town of Little Rock,” for the erection of a court-house and jail at Little Rock.
    On the 4th of July, 1832,' Congress passed another act (4 Stat. at Large, 563), authorizing the Governor of the Territory to select ten sections of land to build a legislative house for the Territory.
    On the 14th of July, 1832, Congress passed an act (4 Stat. at Large, 603); giving to persons entitled to preemption under the act of 1830, (but Who had not been able to enter the same within the time limited, because, the township plats had not. been made and returned,) one year from the time when such township plats should be returned, to enter said lands upon the same terms and conditions as prescribed in the act of 1830.
    On the 2d of March, 1833, Congress passed an . act (4 Stab at Large, 661) authorizing the Governor of the Territory to sell the lands granted by the act of 15th June, 1832.
    Under these acts of Congress, Governor Pope made a part of his location upon the fractional quarter-sections in question-, upon the 30th of. January, 1833.
    It has been already mentioned, that on the 1st of December, 1833, the public surveys were completed, and returned to the land office in the beginning of the year 1834.
    . On the 5th of March, 1834, the heirs of Cloyes (he being dead) paid for the four fractional quarter-sections, and took the following receipt.
    “ jReceiver’s Office at Little Rock, March 5, 1834*
    “ Received by the hands of Ben. Desha, from, Lydia Louisa Cloyes, Mary Easther Cloyes, Nathan Henry Cloyes, and William Thomas Cloyes, (heirs of Nathan Cloyes, deceased, late of Pulaski County, A. T.,) the sum of one hundred and thirty-five dollars and seventy-six and J cents, being in payment for the northwest and northeast fractional quarters of section two, and the northwest'and northeast fractional quarters of section one, in fractional township one, north of the base line, and range twelve, west of the fifth principal meridian, containing in all one hundred and eight 61-100 acres, at f> 1.25 per acre.
    “ $ 135.76J. P. T. Crutchfield, Receiver.

    “ A part of the land for which the within receipt is given, to wit, ‘ the northwest fractional quarter of section two,’ forms a part of the location made by Governor Pope, in selecting 1,000 acres adjoining the town of Little Rock, granted by Congress to raise a fund for building a court-house and jail for the Territory of Arkansas ; and this indorsement is made by direction of the Commissioner of the General Land Office.
    “ P. T. Crutchfield, Receiver.

    “ Receiver's Office at Little Rock, March 5, 1834.”
    In 1843 the heirs of Cloyes filed a bill against all the persons mentioned in the title of this statement, who had purchased various interests in these fractional quarter-sections, and claimed title under Governor Pope. The bill was filed in the Pulaski Circuit Court of the State, setting forth the above facts, and praying that the defendants might be ordered to surrender their patents and other muniments of title to the complainants.
    The parties who were interested in the northwest fractional quarter of section number two answered the bill. The other parties demurred.
    ■ The answers admitted that proof of a preemption right to the northwest fractional quarter of section two was made by Cloyes at the time and in the manner set forth in the bill; but deny that he had a valid preemption to it,. They admit also, that Governor Pope selected said quarter in pursuance of the two acts of Congress of 15th June,. 1832, and 2d March, 1833, but deny that he did so illegally or by mistake.
    In July, 1844, the Pulaski Circuit Court sustained the demurrer of the parties who had demurred, .and dismissed the bill as to thope who had answered.
    In July, 1847, the Supr.eme Court of Arkansas, to w-hich the cause had been carried, affirmed- the judgment of the court-below, and a writ of error brought the case up to this court.-
    It was argued by Mr. Lawrence and Mr. Badger, for the plaintiffs in error, and Mr. Sebastian, for the defendants in error.
    The counsel for the plaintiffs in error'said that the three following questions arose.
    1. Was Cloyes entitled to have entered the land in question on the 28th of May, 1831, if the township plat had at that time been in the land office ?
    2. Did the act of 15th' June, 1832, granting to the Territory of Arkansas one thousand acres of land, generally, confer any specific right to this particular fraction before its actual selection by the Governor ?
    3. If not, then did not the act of 14th July, 1832, reserve this fraction from selection, location, and sale, until the expiration of one year from the return of the township piat to the land office ?
    In regard to the first question,, there is but one objection which can be -urged with' even a tolerable amount of plausibility in its favor, (that which is made the first ground of demurrer by those .who have demurred to the bill,) namely, that' the proof exhibited in the . bill does not appear to have-been taken in the presence of the register and receiver.
    The circular dated June 10, 1830, from the General Land Office, contains, among other things, the following paragraph, viz.: — “ The evidence must be taken by a justice of the peace, in the presence of the ■ register and receiver, and be in answer to such interrogatories propounded by them as may be best caL-' culated to elicit the truth.”
    The caption of’ the testimony, in the record is, “Nathan Cloyes’s testimony, taken on 23d April, 1831, before James Boswell, a justice of the peace for the County of Independence, in the register’s office, in the presence of the register.” It is maintained that this omission in the. caption to make it appear that the 'evidence was taken before the register and receiver, destroys Cloyes’s right of preemption. To this view several answers may be given. It does not positively appear that the receiver was not present, and the presumption of law is, that a government officer has done his duty till the contrary appears. Wilcox v. Jackson, 13 Pet. 511; Winn et al. v. Patterson, 9 Pet. 663; 1 Cooke, (Tenn.) 492; 3 Yerger, 309; 2 Tennessee, 154, 284, 306, 421. It does appear that both the register and receiver, on the same day (23d April, 1831), admitted Cloyes’s right to enter the land in question.
    But suppose the proof was not taken in presence of both the register and receiver, still the land'office circular was merely directory to the officers as to the manner of taking the proof, and any mere error or irregularity on the part of the officers cannot prejudice the rights of the preemption. 3 Johns. Ch. 275; 2 Cond. Rep. 237, 243; 2 Edw. Ch. 261; 4 How. (Miss.) 57; Ross v. Doe, 1 Pet. 655; Pond v. Negus, 3 Mass. 230; Rodebaugh v. Sanks, 2 Watts, 9; Holland v. Osgood, 8 Verm. 280; Corliss v. Corliss, 8 Verm. 390; People v. Allen, 6 Wend. 486.
    The Commissioner of the General Land Office, who issued the ’ circular, by authorizing the receiver to take the payment offered by the heirs of Cloyes, without taking any exception to the manner in which the proof had been taken, suspended, .pro hac vice, the regulation, and sanctioned the mode in which it was in fact taken.- The regulation itself was full of inconvenience, was never fully carried out ill fact," aind whs finally* rescinded by the circular of 22d July, 1834 (2 Land LaWS; 589).
    The decision of the register- and receiver was in favor of Cloyes’s right to the northwest fractiqnal quarter of section two, and it being upon a matter within their exclusive jurisdiction, and no appeal being given, that decision was final hnd conclusive. Wilcox v. Jackson, 13 Pet. 498.
    Cloyes’s right of preemption, then, was perfect, and he was only prevented from consummating it by the fact, that the township plat was not returned before the expiration of the'preemptio,n law of 1830.
    2. The act of 15th June, 1832, (yhich was'passed after the act of 20th May, 1830, had expired,) was only a general grant of one thousand acres of land in the vicinity of Little Rock, without any specification or description of any particular land Whatever, <! which lands,” it provides, “ shall be selected by the Governor of the Territory in legal subdivisions,” &c.
    We maintain that, before such selection, there was. no appropriation of, or lien upon, any particular tract. It was the selection by the Governor that was to withdraw any tract from the public domain. 5 How. 10.
    Covenant to settle particular lands, if for valuable considera-" tion, creates a lien upon the lands, which will be enforced-against all but a purchaser for value and without notice. 1 Vern. 206; 1 P. Wml 282, 429.
    . But covenant to settle lands of a particular value, without mentioning any lands in particular, creates no lien on any of the covenantor’s lands. 1 P. Wms. 429; 4 Bro. Ch. 468, Eden’s note; Russell v. Transylvania University, 1 Wheat. 432.
    Governor Pope did not make his selection until the 30th of January; 1833..
    3. Prior to this selection, the act of 14th July, 1832, was passed, giving to persons entitled to preemption under the. act of 29th May, 1830, but who had not been able to enter said lands, because the township plats' had not been made and returned, the right to enter said lands, on the same conditions in every respect, within one year from the time when said township plats should be returned.
    It is clear, then, that if the grant of one thousand acres to Arkansas did not confer a specific right to any particular land, until selection made by its Governor, (and that selection was not made until after this act of 14th July, 1832, was passed,) then the latter act reserved from any future selection lands -which came within its provisions, The northwest fractional quarter of section two could not be legally selected by the Governor, in 1833, because Cloyes had a right of preemption to it under the act of 29th May, 1830, which the want of the township plat had alone prevented him from completing. That township plat was not returned until the beginning of the year 1834. The act of. 14th July, 1832, gave him until the year 1835 to make his entry; and within that time he made his payment, and applied to enter the land.
    It is manifest, then, that the bill should have been sustained by a decree in favor of the right of Cloyes’s heirs to the northwest fractional quarter of section two, on which his settlement .and cultivation were proved.
    As to the remaining fractional quarters, the parties interested have filed- a demurrer to the bill, setting oiit„several grounds of demurrer. The first and principál of these grounds has already-been answered. -Most of the other grounds are but different statements of a single objection', namely, that Cloyes, having proved his settlement upon one quarter fractional section alone, could not legally claim any. thing beyond the fractional quarter on which he was settled.
    The act of 29th May, 1830, does not restrict the right of preemption to the quarter-section on which settlement is made. The first section is, — “That every settler or occupant of the public lands, prior to the passage of this act, who is now in possession, and cultivated any part thereof in the year one thousand eight hundred and twenty-nine, shall be, and he is hereby, authorized to enter with the register of the land office for the district in which such lands may lie, by leg;al subdivisions, any number of acres, not more than one hundred and sixty, or a quarter-section, to include his improvements, upon paying,” &c. 1 Land Laws, 173.
    The only restriction which the law imposes is one hundred and sixty acres, to be entered by legal subdivisions, and to include his improvement. Within these conditions, he may enter any number of acres and any number of legal subdivisions. But we are told that the General Land Office put upon this law the construction, that the claimant was to be confined to the fraction on which he settled. It is true that for a time this construction did prevail in the General Land Office, and, as we contend, without any warrant of law.
    But that construction has long since been overruled in that office. It was overruled by express act of Congress. The' second section of the act of 14th July, 1832, provided, — “ That the occupants upon fractions shall be permitted, in like manner, to enter the • same, so as not to exceed in quantity one quarter-section; and if the fractions exceed a quarter-section, the occupant shall be permitted to enter one hundred and sixty acres, to include his or their improvement, at the price aforesaid.”
    - Since that time, a different construction has prevailed in the General Land Office. See Circular, March 1, 1834, 2 Land-Laws, 587. See also the letter of Secretary of Treasury of October 31, 1833, 2 Land Laws, 572; also Circular of 7th May, 1833.

      Mr. Sebastian, for the defendants in error,
    contended, ■—
    First, That the proof of preemption was not taken in the presence of the register and receiver, agreeably to the rules prescribed by the Commissioner of the Land Office. The authority conferred upon them was joint, not only in taking the testimony, but in deciding on the sufficiency of the proof» Proof made to one was not a compliance with the law. 5 How. (Miss.) 752; 13 Peters, 511; 1 Peters, 340; Attorney-General’s Opinion, in 2 Land Laws, 85, 98.
    But-it is said, that it does not positively appear that the re-' ceiver was not present, and the presumption of laytr is, that every government officer does his duty until the contrary appears'. The rule is well stated, but admits of exceptions. It is a mere- rule of evidence, ■ to supply proof of relevant facts where th'é contrary does not appear. The silence of the proof upon this subject would have left the presumption to operate to its fullest extent in favor of the legality of the proceedings, but it went further, and disclosed the fact that the proof was taken before the register alone. Conclusio unius exclusio alterius, is a rule of construction that may well apply in this instance. It is not easy to see how- the absence of the’ receiver could be better stated than in the. terms which affirmed the presence of the register.
    Again, it is contended that the land office circular requiring proof to be taken in the presence of the' register and receiver was-directory to the officers as to the manner of taking the proof, and that any irregularity upon the part of the officers cannot prejudice the right of preemption.
    It is undoubtedly true,- that where the State intrusts a duty to a public officer, and prescribes a particular manner in which he. shall perform it, an irregularity in the manner of its performance shall not prejudice the. right' appertaining to the act of performance. The rule extracted from the cases seems to admit of many exceptions. It applies to the acts of ministerial officers, and not to those who act in a judicial, capacity; to those who act irregularly within the limits of authority, but not where there is a total want of it (see Wilcox v. Jackson, 13 Peters; 2 Tenn. 154); to those who act as a public and common agent, independent of or as a trustee of the parties, but not where the act is controlled or to be done by the party himself. 2 Tenn. 284. Now here the register and receiver acted in a judicial capacity. (Wilcox v. Jackson, and Opinion of Attorney-General, above cited.) The act of May 29th, 1830, § 4, makes it the duty of the settler to make the proof, and the circular from the land office prescribes how and before whom he shall make it. ' The true question, therefore, in this case is, not whether a ministerial duty has been imperfectly performed, but whether. a judicial function has not been performed without any authority at all. The only adjudged case upon the direct point has taken this view of the question. Fulton v. McAfee., 5 How. (Miss.), above cited.
    The supposition that the letter from the Treasury Department (2. Land Laws, 572), by authorizing the receiver to take payment from Cloyes, suspended pro hac vice the general regulation as to proof, is unfounded in the terms of that letter. It was done expressly, not to waive any objection, but “ to enable them the more effectually to maintain their rights before the judicial tribunals; without prejudice to an adjudication of the land office.” It decided in favor of Governor Pope’s locations, and left Cloyes’s claim just where it found it. . Had it been so intended, it was then too late to remove the defect and cut out the intervening rights under the location of Governor Pope. The general regulation was not repealed until July 22, 1834, and until all the rights in controversy had been fixed under the old law.
    If the proof of preemption should be considered regular, and in compliance with the act, and the authoritative instructions issued in conformity with it, then it is contended that the. northwest fractional quarter of section two, a part of the lands sued for, was specifically appropriated by the act of Congress of 15th June, 1832 (4 Stat. at Large, 531), granting one thousand acres of land to the Territory of Arkansas, “ contiguous to and adjoining the town of Little Rock ” ; so that when the act of 14th July, 1832 (4 Stat. at Large, 603), extending and reviving that of 29th May, 1830, was passed, there was nothing on which the act could operate. When the supplemental act was passed, the tract on which the preemption had once been granted and lapsed was no longer unappropriated land. The original act, thus revived, extended the right of preemption to unappropriated lands only. The land granted by the act of. 15th June tp the Territory could not, on the 14th of July following, be considered unappropriated. Upon this point, the in-, striictions from the General Land Office of 10th June, 1830, were explicit. (2 Land Laws, 539.) In these it is said, “that all lands not otherwise appropriated, of which the township plats are or may be on file in thé register’s office, prior to the expira-, tion of the law, are subject to entry.” The preemption act of. 1830 expired by its own limitation on the 29th of May, 1831, and before it was revived, July 14, 1832, the act of 15th June granted the tract of land to the. Territory. The proof of preemption describes the tract cultivated as being immediately below Little Rock, and the act of 15th June, 1832, above mentioned, grants to the Territory of Arkansas “ a quantity of land, not exceeding one thousand acres, contiguous to and adjoining the town of Little Rock.h By this act the United States was. concluded. It was not executory, but passed a present interest, and executed itself. It 'was not a general grant, but specific, and.conveyed, not a mere right at large to locate, but certain lands, and although it did not pretend to fix the exterior limits or boundaries, yet one feature was well defined, most-important in its operation in this case. -The land was “ contiguous to and adjoining the town of Little Rock.” However indefinite in some features, its terms of description embraced the very tract on which the. ancestor of complainants had claimed a preemption. This grant was a contract, and constituted a Heir upon the lands coming within its descriptive terms. Pinson and Harkins v. Ivey, 1 Yerg. 322; 2 Vern. 482; 1 P. Wms. 429; 2 Vern. 97; 1 Eq. Cas. Abr. 31, ch. 4, and 87, ch. 6.
    It was, if not a grant, at least a reservation of all those lands, “ adjoining and contiguous to the town of Little Rock,” for the satisfaction of the grant, and, to that extent and for that purpose, was an appropriation by law. It was an exemption of such lands from the operation of all subsequent laws, until its . objects could be satisfied and the act have effect. When the land should be selected, the title would- legitimately relate to the date of the act, Which is the source of the title. This relation, however, is unnecessary to overreach the title of complainants, as the selection- of the lands was long prior to the application of Cloyes’s heirs to enter them, in March, 1834, under the act of 14th July, 1832. Not only so, but on the 2d of March, 1833, after the location or selection by Governor Pope,, an act was passed authorizing him to sell the -lands thus selected, of. which the. northwest fractional quarter of section two. was a part: See 4 Stat. at Large, 661.
    This brings hs to the consideration of the question as to the competency of the United States to thus appropriate the land in controversy, (as they most unquestionably did by the acts referred to,) and the nature of the interest in the public domain acquired by settlers upon it.
    (The counsel then proceeded to argue, that the preemption law was not a grant, but merely a bounty which the United States may at any time before final acceptance of its terms and performance of its conditions wholly modify, destroy, or restrict. 2 Land Laws, 101, 102; 9 Cranch, 92; 1 Scam. 367; 3 Pet. C. C. 40; 5 Martin, N. S. 417; 6 Martin, 342; 9 La. Rep. 53; 5 How. Miss. 765; 13 Pet. 514.)
    But, waiving the question whether the act of June, 1832, was a grant, or even a positive reservation, I recur again to the argument, that this act ivas at least an appropriation. That is all that is necessary to sustain the title of the defendants. It is Sufficient alone' that the act of 15th June, 1832, was a “ setting apart ” of a portion of the public domain for any purpose. This is but an indication by the government, through some one of its departments, of its intention to devote it to some particular purpose. The title still remains in the United States, and the land thus indicated is • withheld from all subsequent laws. Whether as a grant the act was specific or general, whether it passed a present or future interest, commencing upon the “ selection,” cannot alter its operation as an appropriation. It can be' an appropriation of all lands within its descriptive terms, withbut being a grant of them. The donation was for one thousand acres, “ contiguous to and adjoining the town of Little Rock.” The appropriation was therefore coextensive, not with, the boundaries that might be ascertained by the selection under the act, but it was as broad as the description of the lands out of which the selection was to be made. This will be fully comprehended by observing the clear distinction between the tract selected and the body of lands out of which the selection was authorized to be made. The appropriation was temporary, and for a particular purpose. Still, it was to this extent an appropriation; By this act the lands were “ set apart,” and severed from the public domain, until the purposes of that act could be satisfied. Doubtless it is true, that, when the. objects of the appropriation were accomplished, the fends held from disposition by its force would relapse into the mass of unappropriated land. But in this ease, the appropriation of this tract, amongst others embraced in this description of the law, held it until it was selected, and the selection held it for ever. .
    Again, when the act of 14th July, 1832, was passed, the lands claimed bf the. complainants were not surveyed, nor any plats on file in the register’s office at the time of the expiration of the act of 1830. The bill states the surveys to have been made, and the plats thereof to have been returned, in December, 1833, and January, 1834 To such lands the act of 1830 did not extend the right of preempt tion. On this point the circular letter of instructions-from the General Land Office, of June 10th, 1830 (2 .Land Laws, .540), is explicit: — “Lands not otherwise appropriated, of which the township plats axe or may be on file in the register’s office prior to the expiration of the law (29th May, 1831), are subject to entry under the act.” These instructions axe in precise conformity with the act, and should be considered as a part of it.. The whole tenor of the act shows that it never contemplated the possibility of a preemption on any other than surveyed lands, officially known to be such. All the terms of the act, particularly the fourth section, contemplate the maps of the surveys being on file. The case of settlers upon the unsurveyed domain was-a clear omission. Such settlers never came within its provisions. The act of 14th July, 1832, was designed for the relief of that class. So far it was not a revival, but an extension, of the terms of the act of 1830. It embraced what the old act did not. The cultivation and possession of unsurveyed land was nothing under the first act. They were the very basis of right under the new law; Whatever .interest, therefore, the complainants had, is legally to be ascribed to this latter act, notwithstanding the proof of preemption before the expiration of the preemption law. Should this question, then, be considered as a mere contest between titles by relation, extending retrospectively to. the first link in them, the defendants have the elder title.
    The second ground of demurrer is, “ that the bill shows on its face that said Oloyes was not the settler or occupant of the northwest and northeast quarters of section two, and northwest and northeast quarters of section one, township one; north range twelve west.” The third, fourth, fifth, sixth, seventh, eighth, and ninth causes of demurrer are all based upon the second cause assigned, are altogether substantially the same proposition, and may be considered in connection. The objections which they present are applicable alone to the title of complainants to the northeast fractional quarter of section two., and the northwest and northeast fractional quarters of section one,, part of the lands claimed by the complainants. These tracts were claimed under the privilege, as appurtenant to the right of. preemption, proven on the tract. cultivated, which privilege was rejected. These three fractions are held by one of the defendants under patents, issued upon selections made by Governor Pope, under different acts of Congress, granting ten sections of land to the Territory. Those acts have no connection with 'the title to the tract before considered. The claims thus located were assigned to Wm. Russell, one of the defendants.
    That the privilege of preemption did not extend to the additional fractions claimed as appurtenant to it, that the decision of fthe register cud receiver was right in rejecting it, ánd that decision conclusive until reversed or set aside, and that the subsequent proceedings of the receiver at Little Rock in granting his certificate were unwarranted, appear by reference to the act of 29th May, 1830, the instructions of the Commissioner of. the General Land Office under it, and the opinions of the Attorney-General in exposition of thém;
    (The counsel then proceeded to show that the title of the complainants was not good to the three fractional quarter-sections.)
   Mr. Justice McLEAN

delivered the opinion of the court.

This writ of error brings before us a decree of' the Supreme Court of the State of Arkansas.

The complainants filed their bill in the Pulaski Circuit Court of that State, charging that Nathan Cloyes, their ancestor, during his life, claimed a right of preemption under the act of Congress of the 29th of May, 1830, to the northwest fractional quarter of section numbered two in township one north of range twelve, w^st. That he was in' possession of the land claimed when the above act was passed, and had occupied it in 1829. That he was entitled to enter, by legal subdivisions, any number of acres, not more than one hundred and sixty, or a quarter-section, to include his improvement, upon paying the minimum price for said land. That Cloyes, in his lifetime, by his own affidavit, and the affidavits of others, made proof of his settlement on, and improvement 'of, the above fractional quarter, according to the provisions of the above act, to the satisfaction of the register and receiver of said land district, agreeably to the rules prescribed by the Commissioner of the General Land Office; and on the 20th of May, 1831, Hartwell Boswell,- the register, and John Redman, the receiver, decided that the said Cloyes was entitled .to the preemption right claimed.

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

That under the act of the 29th of June, 1832, entitled, “ An act establishing land districts in the Territory of Arkansas,” the above fractional sections of land were transferred to the Arkansas land district, and the land office was located- at Little Rock, to which the papers in relation to this claim of preemption were transmitted.

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

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

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

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

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

The answer of the Real Estate Bank and trustees admits the proof of the.preemption claim of Cloyes, but they say, “From beginning to end it is a tissue of fraud, falsehood, and perjury, not only on the part of Cloyes, but also on the part of those persons by whose oaths the alleged preemption was established. And they allege, that the lots four, five, and six, in block eight,, in fractional quarter-section two, claimed by the bank, were pürchased of Ambrose H. Sevier in the most perfect good faith, and without any notice or knowledge whatever, either constructive or otherwise, of any adverse claim thereto.” That they have made improvements on the same, which have cost twenty-five thousand dollars, without ever .having it intimated to'them that, there was any adverse claim, until all of said improvements had been completed.

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

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

The other defendants filed special demurrers to the bill. The Circuit Court, as it appears, sustained the demurrers, and in eifect dismissed the bill. The cause was taken to the Supreme Court of Arkansas by a writ of error, which affirmed the decree of the Circuit Court.

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

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

In the third section of the act it is provided, that, before any entries being made under the act, proof of settlement or improvement shall be made to the satisfaction of the register and receiver of the land district in which the lands may lie,1 agreeably to the rules prescribed by the Commissioner of the General Land Office for that purpose.

On the 10th bf June, 1830, the commissionér issued his instructions to the receivers and registers under the above act, in which he said, that the fact of cultivation and possession required “ must be established by the affidavit of the occupant, supported by such corroborative testimony as may be entirely satisfactory to both; the evidence must be taken by a justice of the peace in the presence of the register and receiver.” And the commissioner directed, that, where the improvement was wholly on a quarter-sec'tion, the occupant was limited to such quarter; but where the improvement is situated in different quarter-sections adjacent, he may enter a half quarter in each to embrace his entire improvement.

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

Under this instruction, on the 38th of May, 1831, the register und receiver held that Nathan Cloyes was entitled to the northwest fractional quarter, as stated in the bill, but rejected the privilege of entering the adjoining fractions.

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

' The first instruction of the commissioner, dated 10th June, 1830, required the proof to be taken in presence of the register and receiver, and it appears that the proof was takén. in, the presence of the register' only.

The law did not require the presence of .the land 'officers when the proof was taken, but, in the exercise of his discretion, the commissioner required the proof to be so taken. Having the power to impose this regulation, the commissioner had the power to dispense with it, for reasons which might be.satisfactory to him.. And- it does appear that the presence of the register only, in Cloyes’s case, was held sufficient. The right was sanctioned .by both the land officers, and by the commissioner also, so far as to receive the money on the land claimed, without objection as to the mode of taking the.proof. And, as regards the authority for this procedure by the land officers, it appears to be covered by the above circular of the commissioner, dated 7th February, 1831. In- the absence of the surveys, the parties entitled to the benefits of the act of 1830 were “ permitted to file the proof thereof,” &c., identifying the tract of land, as well as circupistances will- admit, any time prior to the 30th of May, 1831.

The register and receiver were constituted, by the act, a tribunal to determine the rights of those who claimed 'preemptions under it. From their decision no appeal was given. If, therefore, they acted within their powers, as sanctioned by the commissioner, and within the law, and the decision cannot be impeached on the ground of fraud or unfairness, it must be considered final. The proof of the preemption right of Cloyes being “ entirely satisfactory” to the land officers under the act of 1830, there was no nécessity of opening the case, and receiving additional proof, under any of the subsequent laws. The act of 1830 having expired, all rights under it were saved by the subsequent acts.- Under those acts, Cloyes was only required to do what was necessary to perfect his right. But those steps within the law, which had been taken, were not required to be again taken.

It is a well-established principle, that where an individual in the prosecution of a right does every thing which the law requires him to do, and he fails to attain his right by the misconduct or neglect of a public officer, the lav/ will protect him. In this case the preemptive right of Cloyes having been proved, and an offer to pay the money for the land claimed by him, under the act of 1830, nothing more could be done by him, and nothing more could be required of him under that act. And subsequently, when he paid the money to the receiver, under subsequent acts, the surveys being returned, he could do nothing more than offer to enter the fractions, which the register would not. permit him.to do. This claim of preemption stands before us in a light not less favorable than it would have stood if Cloyes or his representatives had been permitted by the land officers to do what, in this respect, was offered to bé done.

The claim of a preemption is not that shadowy right which by some it is considered to be. Until sanctioned by law, it has no existence as a substantive right. But when covered by the law, it becomes a legal right, subject to be defeated - only by a failure to perform the conditions annexed to it. ' It is founded in an enlightened public policy, rendered necessary by the enterprise of our. citizens. The adventurous pioneer, who is found in advance of our settlements, encounters many hardships, and not unfreqtfently dangers from savage incursions. He is generally poor, and it is fit that' his enterprise should be rewarded by the privilege of purchasing the favorite spot selected 'by him, not to exceed one hundred and sixty acres. That this is the national feeling is shown by th 6 course of legislation for many years.

It is insisted, that the preemption right of Cloyes extended to the fractional quarter-sections named in the bill, the whole of them being less than one hundred and sixty acres. We think it is limited to the fractional quarter on which his improvement was made. This construction was given to the act by the commissioner in his circular of the 10th of June, 1830. He says, “ The occupant must be confined to the entry of that particular quarter-section which embraces the improvement.” The act gives to the occupant whose claim to a preemption is established the right to enter, at the minimum price, by legal subdivisions, any number of acres not exceeding one hundred and sixty. But less than a legal subdivision of a section or fraction cannot be taken, by the occupant. It is contended, however, that several fractional quarter-sections adjacent to the one on which the improvement was made may betaken under the preemptive right,, which shall not exceed in the whole one hundred and sixty acres. And the second section of the act of 14th July, 1832, which provides, that the occupants upon fractions shall be permitted, in like manner, to enter the same so as not to exceed in quantity one quarter-section,” it is urged, authorizes this view. But in the case of Brown’s Lessee v. Clements et al., 3 How. 666, this court say, the act of 29th May, 1830, “ gave to every settler on the public lands the right of preemption of one hundred and sixty acres; yet, if a settler happened to be seated on a fractional section containing less than that (Quantity, there is no provision in the act by which he could make up the deficiency out of the adjacent lands, or any other lands.”

Did the location of Governor Pope, under the act of Congress, affect the claim of Cloyes? On the 15th of June, 1832, one thousand acres of land were granted, adjoining the town of Little Rock, to the Territory of Arkansas, to be located by the Governor. This.selection was.-not made until the 30th of January, 1833. Before the grant was made by Congress of this tract, the right of Cloyes to a preemption had not only accrued, under the provisions of .the act of 1830, but he had proved- his right, under the law, to the satisfaction of the register and receiver of the land office. He had, in fact, done every thing' he could do to perfect this right. No fault or negligence can be charged to him. In the case above cited from 3 Howard, the court say, — “The act of the 29th of May, 1839, appropriated the quarter-section of land in controversy, on which Etheridge was then settled, to his claim, under the act, for one year, subject, however, to be defeated by his failure to comply with its provisions. During that time, this quarter-section was not liable to any other claim,” &c. And the supplement to this act, approved 14th July, 1832, extended its benefits. The instruction of the commissioner, dated September 14th, 1830, was in accordance with this view. He says, “ It is, therefore, to be expressly understood, that every purchase of a tract of land at ordinary private sale, tq which a preemption claim shall be proved and filed according to law, at any time prior to the 30th of May, 1831, is to be either null and void, (the purchase-money thereof being refundable under instructions hereafter to be given,) or subject to any legislative provisions.”

By the grant to Arkansas, Congress could not have intended to impair vested rights. The grants of the thousand acres and of the other tracts must be so construed as not to interfere with the preemption of Cloyes.

The Supreme Court of the ’State, in sustaining- the demurrers and dismissing the bill, decided against the preemption right claimed by the, representatives of Cloyes; and as we consider that a valid right, as to. the fractional quarter on which his improvement Avas made, the judgment of the State court is reversed ; arid' the’cause is transmitted to that court for further proceedings before it, or as it shall direct, on the defence set up in the answers of the defendants, that they are bona fide purchasers of the Avhole or parts of the fractional section in controversy, Avithout notice, and that that Court give leave- to amend' the pleadings on both sides, if requested, that the merits- of the case may be -fully presented and proved, as equity shall require.

Mr. Justice CATRON, Mr. Justice NELSON, and Mr. Jus-, tice GRIER dissented., (See Appendix.)

Order.

This cause came on to be -heard on the transcript of the record rrom the Supreme Court of the State of Arkansas,-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'Supreme .Court in this cause be, and the same, is hereby, .reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Supreme Court, for further proceedings to be had therein in conformity to the opinion of this court.


source: Caselaw Access Project

license: Public Domain

text:
    Thomas E. Boswell’s Lessee, Plaintiff, v. Lucius B. Otis Administrator, Margaret Dickinson, Widow, and Edward F., Julia S., Margaret O., John B. B., Rodolphus, Martha Jane, and James A. Dickinson, Minor Children, of Rodolphus Dickinson, deceased, by L. O. Rawson, their Gurdian and Next Friend, et al.
    The chancery act of Ohio of 1824 confers on the Court of Common Pleas general chancery powers. The twelfth section gives jurisdiction over the rights of absent defendants, on the publication of notice, “ in all cases properly cognizable in courts of equity, where either the title to, or boundaries of, land may come in question, or where a suit in chancery becomes necessary in order to obtain the rescission of a contract for the conveyance of land, or to compel the specific execution of such contract.”
    A bill being filed to compel the specific execution of a contract relating to land, where the defendants were'out of the State, the court passed a money decree, and ordered the sale of other lands than those mentioned in the bill.
    This decree was void, and no title passed to the purchaser at the sale ordered by the decree.
    The act did not authorize such an act of general jurisdiction. A special jurisdiction only was given in rem.

    Jurisdiction is acquired in one of two modes, — first, as against the person of the defendant, by the service of process, or secondly, by a procedure against the property of the defendant within the jurisdiction of the court. In the latter case, the defendant is not personally bound by the judgment, beyond the property in question.
    This case came up from the Circuit Court of the United States fot Ohio, upon a certificate of division in opinion between the judges thereof.
    It was an ejectment brought by Boswell, a citizen of Kentucky, against Rodolphus Dickinson and others, tenants in possession, to recover tract number seven in the United States reserve, of two miles square, at Lower Sandusky, in the State of Ohio. Dickinson having died, his heirs and representatives, were now parties.
    Before relating the proceedings in the ejectment, it is proper to notice some other occurrences which were prior in time.
    In May, 1825, Thomas L. Hawkins filed a bill in the San-dusky Common Pleas, against Thomas E. Boswell, William T. Barry, and William Whitimore. The bill stated that all these parties were engaged, as partners, in building a saw-mill upon lot number nine ; that they went on with the work until 1823; that he, Hawkins, was a creditor of the concern; that the other parties had obtáined a title to two thirds of the lot, and refused to convey any part of it' to the complainant. The bill then concludes thus: — “ To the end, therefore, that said Boswell, Barry, and Whitimore may, under their corporeal paths, true answers make to all matters herein charged, and on the final hearing of this cause your honors will decree that said defendants convey one fourth of, the said.land to which they have obtained a legal title* and also to account to your orator for .the money and time he has expended more than his share . on. said mill and the improvements of said land, and that notice .be given defendants,” Ac.
    It being made known that the defendants were non-residents of the State, but resided inthe States of Kentucky and Massachusetts, notice of the pendency of the suit was published in the Western Statesman, a newspaper printed at Columbus, Ohio, for the term of nine weeks successively.
    At May term, 1826, a decree was passed that the bill should be taken pro confesso, and a master was directed, to. take an account between the parties, who reported a balance due ..to Hawkins of $ 1,844.17.
    In July, 1826, the court passed a final decree, “ that, the complainant do recover of the said defendants the said sum of eighteen hundred forty-four dollars and seventeen cents, and his costs by him in this behalf expended. It is further ordered, adjudged, and decreed, that this' decree shall, from, the ' time of its being pronounced, have the force* operation, and effect of a judgment at law, and shall be a lien upon all the town lots of the defendants within said county, and also all the ot.her real estate of the said defendants within said County of San-dusky, as security for the satisfaction of said decree; and it is. further ordered, adjudged, and decreed, that, if the above sum of eighteen hundred forty-four dollars and seventeen cents, and the costs to be taxed in this suit, be not paid within thirty days from the date of this decree, upon a precipe being filed with the clérk of this court by the complainant or his solicitor, execution shall issue against the goods, chattels, lands, and tenements of the said defendants, which shall be taken in execution, and sold in like manner ás though said execution issued on a judgment rendered in a court of law; and all further proceedings in this cause to be continued until the next term.”
    Under a pluries ft- fa., lot number seven was sold, and in May, 1832, the sheriff made a deed of it to Sardis Birchard.
    We can now return to the ejectment..
    In the trial of it, Boswell, the plaintiff, produced a patent from the United States for- the lot number seven, dated September 2, Í831, and also the following agreement of counsel.
    “It is admitted,.as evidence in this case, that the plaintiff’s lessor, said Thomas E. Boswell', now is, and ever since the year A. D. 1818 has been, a resident of the city of Lexington, County of Payette, and State of Kentucky; that from the 1st • day of May, A. D. 1825, up to the 1st day of August, A. D. 1826, he was not within the State of Ohio, and that the premises in controversy in this case are of the value of ten thousand dollars.
    “ Lake, Buckland, & Hats, Attorneys for Defendants.

      u Lower Sandusky, Ohio, August 31sí, A. D. 1846.”
    The plaintiff there rested:
    The defendants then offered in evidence a certified copy of the record of the proceedings of the Court of Common Pleas of Sandusky County, and also of the sheriff ’s deed, to the introduction of which, as evidence in the casé, the plaintiff objected.
    And thereupon, by consent of parties, the jury do say, that if, in the opinion of the court, the said record and sheriff’s deed are by law admissible in evidence, then the said defendants are not guilty of the trespass and ejectment in the declaration mentioned; but if, in the opinion of the court, the said record and sheriff’s deed are not admissible as evidence, then the jury say that the defendants are guilty of the trespass and ejectment in the declaration mentioned, and assess the plaintiff’s damages at one cent; and' thereupon the arguments of counsel being heard, and due deliberation had, the opinions of the judges were divided on the following questions, to wit: —
    1. Whether or not the proceedings and decree of the said Court of Common Pleas of Sandusky County, set forth in said record, are coram non judice and void.
    2. Admitting said proceédings and- decree to- be valid so .far as relates to the lands' specifically described in the said bill in chancery, whether or not" said proceedings and decree are co-ram non judice and void so far as relates to lot number seven, in controversy in this case, and which is not described in said bill in chancery; or, in ’other words, whether said proceedings and decree are not in rem,, and so void and without effect as to the other lands sold un'der said decree. ’
    And thereupon it is ordered, that said questions be certified for decision to the next term of the Supreme Court of the United States, according to the act of Congress in such case made and provided!
    The cause was submitted on printed arguments by Mr. Ewing, for the plaintiff, and Mr. Stanberry, for the defendants.
    From these arguments it is only possible to give extracts.

      Mr. Ewing, for the plaintiff.
    The question is upon the process and the decree. If the process be not sufficient to bring the defendant into court and make him a party to the decree, where .all the other proceedings are regular, the case cannot be improved by any conceivable amount of errors, irregularities, or discrepancies betwein the bill and the decree.
    The decree is for a sum of money found due by a master upon reference, and it is for nothing else. The case, then,' is precisely the same as if the bill had been filed for the recovery of that sum of money merely, and had named no other object; for the decree cannot be strengthened at all by errors and irregularities upon the record. I do not claim that it is weakened by those irregularities, — I merely say that it is not strengthened; it is no better than if the bill had exactly supported the decree.
    Now, this personal decree for money against an absent defendant cannot be sustained on general principles of equity. It is coram non judice, if jurisdiction were not obtained by personal service; this is not and cannot be disputed. As a matter of general equity, then, independently of statutory regulation, this whole proceeding would be a nullity, and the sale under the decree void.
    But the defendants attempt to sustain.the proceeding under the chancery act of Ohio of 1824, and they copy in their brief, as bearing upon the case, the 1st, 7th, 12th, 13th, 16th, 38th, and 40th sections of that act.
    The first section gives the Courts of Common Pleas general chancery jurisdiction in all cases properly cognizable in a court of chancery, that is, jurisdiction over the person, and through the person over property. This jurisdiction is obtained by personal service only.
    The seventh section allows a petition to be filed against an' absent person, where it is necessary to join him with a defendant residing in the State. This does not touch the case at. bar. There was no defendant residing in the State.
    Section‘twelfth is the one under which it was attempted to bring this case. It gives the court jurisdiction over the rights of absent defendants, upon notice, “ in all. cases properly cognizable in courts of equity, where either the title to, or boundaries of, land may come in question, or where.a suit in chancery becomes necessary in order to obtain the rescission of a contract for the conveyance of land, or to compel the specific execution of such contract.” ^
    This decree does-not touch, “the title to, or boundaries of, land ”; no decision is made on either in it. It does not relate to “the rescission of a contract for the conveyance of land,” or to the compelling of “ the specific, execution of such contract ”; not a word is said of either in it. This decree, then, doe's not belong to a case in which any other than personal service can bring the defendant into court; and if the decree be the test of jurisdiction, this case was coram non judice.

    Where there is a plea to the jurisdiction of a court pending a cause, or a motion to dismiss for want of jurisdiction, there is of course no judgment or decision,- and the case can be looked to only in its inceptive stages ; but when the final judgment or decree has been rendered in a court, and the jurisdiction of that court, after its final action, is. contested, it is the jurisdiction to render the judgment or to pronounce the decree which is in question, — not thé jurisdiction to receive the declaration or the bill in chancery. It is the judgment or decree alone that can affect the rights of the absent party injuriously, not the intermediate proceedings; the bill cannot deprive him of any right,, or involve him in any liability, but the decree may; the character of the decree, then, rather than of the bill, must deter-, mine the necessity of personal service. If in a suit at law the declaration be in trespass and the judgment in debt; or if, as in this case, the bill was filed to compel the specific execution of a contract for the conveyance of land, and the decree is for a sum of money merely; it is the judgment in the one case, and the decree in the other, that the parties must abide by. The court which has to declare it valid, or void, will not look at the intermediate proceedings to see if they warranted the decree or judgment. If the court had jurisdiction to render such judgment or decree," it is binding and valid, no matter how irregular or erroneous the proceedings. If they had not jurisdiction to render the decree, no error or irregularity in the proceedings can help out the jurisdiction. This is a personal decree for the payment of money, —a decree to operate in per-sonam; there is no provision in- the chancery act of Ohio by which an absent defendant can be brought in to answer to a bill praying for such a decree. It will not, I think, be pretended, that, if an honest bill, and one direct to the purpose, had been filed, claiming merely a sum of money as a balance of partnership accounts, the jurisdiction could have been sus-' tained. There could, indeed, be no pretence for sustaining it; and surely the decree is no better because it- was obtained by. an indirection.
    But, strange as it may appear, this is the only ground on which it is attempted to sustain the jurisdiction, the learned counsel on the other side seeming to consider the bill, and not the decree,' the subject by which .the jurisdiction is to be tested.
    The very statement of the proposition is, to my mind, enough to expose its fallacy. The statute gives jurisdiction against a non-resident when it is necessary to go into chancery to comi pel the specific ■ execution of a contract for the conveyance of land. How is it to be ascertained that there was any such contract ? By the decree, surely, finding it; not by the unsupported statements of the bill, abandoned, as in this case, by the complainant when he comes to take his decree. It would be monstrous to give the statute such a construction, as it would enable parties to' defraud the law at pleasure. A complainant wishes to take an ex parte decree against a non-resident, — he has nothing to do but to file his bill, aver a contract for the conveyance of land which he wishes to have specially executed, add to it a claim for money paid, and take his decree for money, without troubling himself to prove that the defendant had land at all in the State. It would be a regular mode of bringing parties into court without notice, and obtaining decrees against them without allowing them a knowledge of the fact' that they were in .court. Out of a construction like this, aided by a reasonable mixture of fraud and perjury, a practice would grow up which would enable the merest vagabond to pbssess himself of the estate of any non-resident whose wealth might be to his fancy.
    Indeed, the party need not always put himself to the trouble or incur the hazard of perjury. In this case the complainant got along very well Without it, as he was not required to adduce1 any testimony of his claim, or make an affidavit to its truth ; and such might be the case nine times out of ten, if a bill could be filed in the Court of Common Pleas in Ohio against a defendant in Massachusetts on a false suggestion, and a decree rendered against him on notice published in a country newspaper; especially if the case were conducted by counsel who would take care to enter his decree in the absence of the president judge.
    The object of the chancery act of 1824 undoubtedly was to provide for a proceeding in rem, when a contract had been made touching land lying within the State, that the title thereto should be settled' by either of the parties to the contract without going into another jurisdiction. It never wás intended to create thereby a fictitious process, by which parties were to be made personally amenable to the' jurisdiction ,of a court of whose proceedings, or even existence, they had never heard.The act will not bear any such construction, and it would be against natural justice so to construe it.
    This is not a case of local concernment, in which the decision of the courts of the State are of binding authority; and, though land is involved in the case, it is not a question of title in the ordinary acceptation of the term, but one of more extensive application. If this decree be valid for the present' purpose, it. is so for all purposes, and full force and effect must be given it in all the courts of the United States.' Nor' does the Su-. preme Court of Ohio, in the case of the Lessee of Boswell v. Sharp and Leppelman (set out'"at large in defendants’ argument), give, or profess to give, a construction to the chancery act of Ohio, by which, upon sound and logical reasoning, this decree can toe sustained as a personal decree. The learned judge who delivers the opinion in that case says expressly (page 25), that if the demand. was simply personal, and ithe decree was pronounced without service upon the defendants, who resided in another State, the objection to the jurisdiction would have been well taken. He thus disem jarrasses himself and us of the construction of che statute, and rests the case upon a general proposition, Universal in its.application if sound, and if unsound to be Universally rejected. It is, that the statement of the bill, and not the substance of the decree, is the test to settle the question of jurisdiction. On this we take issue. We say it matters not what is demanded in the bill; if the decree be merely personal, it must be supported by personal service, and cannot be helped by a bill claiming land.
    • The statute of Ohio admits the general principle, that a court of chancery cannot take jurisdiction of a person without personal service made on him within the jurisdiction of the court; biit provides that, where land lies within the jurisdiction of the court, it may be acted upon, and the title to it settled, in proper cases, by a proceeding in chancery, though one of the parties be a non-resident, — just as laws relating to foreign attachments allow land or personal property to be seized at law, and a judgment rendered.against it for the payment of a common law debt. But in both these cases, though the proceeding is in the name of the owner of the property, it is substantially a proceeding in rem, and the judgment or decree can bind only the thing, not the person. -
    (The counsel then proted Story’s Conflict of Laws, pages 461—465, 549; 2 McLean, 514: 5 Paige’s Ch. 302; 15 Ohio, 442; 8 Paige, 444.)
    The following are extracts from Mr. Stanberry’s argument, in reply.

      In the argument of Mr. Ewing, counsel for the plaintiff, the. question is stated to he, whether the decree is void, — and a nice distinction is taken between the validity of the proceedings up to the decree and the decree itself. But no such question is before this court. We can only look to the very question upon which the court below was divided in opinion, and that, is specifically stated to be, whether the proceedings and decree are void. No one can say whether the judges of the court below would have differed as to the validity of the decree, if they had concurred as to the validity of the proceedings. The an-4 swer to be sent to them, by this court cannot divide the question or limit it. The question here is precisely what it was before the judges below, — Are the proceedings and decree void ? Void as a whole or an entirety.
    It is proper, however^ to consider this question in the relation in which it arises, and not in the abstract. The proceedings and decree are of a court in the State of Ohio, and the question as to their validity arises upon a title to land within the same State, depending upon them. This narrows the question of validity, and excludes all inquiry as to extraterritorial effect, — a very important limitation.
    With these ■ preliminary remarks, I shall proceed to reply to the argument of Mr. Ewing. The learned counsel first states that the question which arises is, whether the defendants, in the case before the Sandusky Common Pleas, were in court, so that a personal decree could be rendered against them. Again, the.question is stated to be upon the process and decree; and, lastly, it is stated that it is the decree alone which gives character to the whole case.
    I do not understand Mr. Ewing to argue that the case made by the bill was not a proper case for the jurisdiction of the court, under the twelfth section of the act of 1824, Indeed, no question can be made upon that. It was a case properly cognizable in a court of equity, involving the execution of a contract for the conveyance of land within the jurisdiction of the court. It was ■ therefore precisely within a class of cases provided for in that section, and, upon the publication of the notice to the non-resident defendants, the jurisdiction of the court fully attached.
    But it is argued that all this goes for nothing, inasmuch as the decree was not strictly according to the case made in the bill; that the case made in the bill was a case in rem, whereas the decree was exclusively in personam.

    In the first place, I answer to this, that the case made by the bill is not at all a case in rem, nor does the twelfth section of the act of 1824 enumerate a single case of that character.

      In Hollingsworth v. Barbour, 4 Peters, 475, the point was made that, a bill for a specific performance was a proceeding in. rem. The opinion of Mr. Justice Trimble in the court below, which was adopted by this court in that case, goes directly to that, point, and is as follows: — “ The case under consideration is not properly a proceeding in rem ; and a decree in chancery for the conveyance of land has never yet, within my knowledge, been, held to come within the principle of proceedings in rem, so. far as to dispense with the service of process on the party. There is no seizure nor taking into the custody of the court the land, so far as to dispense with the service of process on.the party; constructive notice, therefore, can only exist in the cases coming fairly within the provisions of the statutes authorizing the court to make orders of publication, and pro» viding that the publication, when made, shall authorize the court to decree.”
    $11 that can be said of the case made by the bill, and of the cases enumerated in the twelfth section, is, that they relate to contracts or questions affecting land situate within the State. They cover, a vast field of equity jurisdiction, which has never been held to be a jurisdiction in rem. Unlike the. proceedings in rem, there is no seizure and condemnation of the property in the first instance, and- the relief administered may very properly go beyond the property which is the subject of the contract.
    There is not a subject for jurisdiction enumerated in the twelfth section, in which the decree may not properly and nnecessarily be a decree for money. Take, for instance, the, sub* ject of the rescission óf a contract for the conveyance of land, and suppose the plaintiff to be the purchaser, who alleges the contract, the payment of all money due upon it, and a ground for rescission. In such,a case, if the allegations be found for the plaintiff, the necessary decree is for the repayment of the money, as well as the cancellation of the contract. Any thing short of that stops short of the true meaning of rescission.
    Take, also, the subject of the- specific execution of such a contract, and suppose the bill to be. filed by the vendor, who has never received one cent of the purchase-money. What other execution or performance of the contract can there.be in such a case, but the payment of the purchase-money, or a decree for such payment ?
    Such a construction can never be put on this statute as5 to say, that these subjects for jurisdiction, so brought within the cognizance of a court of equity, áre to be dealt with in any other way than according to the necessities of the case, and' the usual relief administered in equity. If there were any doubt as to this, the express language of the section settles it. ■ The concluding clause is in these words : — “ Such court is hereby authorized to take cognizance thereof, and' direct either personal notice, or notice by publication, of its pendency, to be given as in this act provided, and on proof of such notice having been given, to proceed as in other cases.”
    A proceeding or case in equity under this- statute may then properly terminate in a decree for money; that is, it is within the competence of the court to render such a decree, though it sound in personam, without committing so much as an error.
    I do not understand Mr." Ewing to contend that a statute which should provide for constructive notice by publication, as the foundation for a judgment or decree for money, would be void, or that the judgment or decree rendered upon such notice would be a nullity. The argument is, that this statute authorized no such proceeding, and warranted no such decree.
    A judgment or decree rendered in such a proceeding is valid within the State, and may be carried into effect upon the property of the defendant, real or personal, found within the State. The most that'can be said against it is, that it shall not be allowed to have an extraterritorial. effect. It is not strictly a judgment or decree in personam, but, as to its effect, is limited to the propertj^of the debtor within the local jurisdiction.
    The jurisdiction of a court of chancery over persons out of the reach of its process is founded either upon the inherent power of the court or upon positive statute. In England, as well as in various States of the Union, such jurisdiction is constantly exercised, either by a substituted and formal' service of subpoena upon some officer of the court, or by publication. Nor is this jurisdiction at all confined to cases involving the title to lands within the particular sovereignty, but it extends to matters strictly in personam.

    But we are not obliged to sustain such a statute, or such a proceeding, in this case. So far as the statute is concerned, there can be no question of its validity; and so far as the pro.ceedings are concerned, there is no question, they were exactly authorized by the statute. We have gone a step further than was necessary, and have argued the question of jurisdiction as if it depended on the decree. That is the ground taken in the argument for the plaintiff, We deny its soundness.
    If the proceeding, that is to say, the bill and the publication, were in conformity with the statute, the question of jurisdiction is settled. It is impossible to contend, that, after proof of publication upon the bill, the court had not jurisdiction. The case made by the bill was precisely one of the cases provided for in the statute, and the publication of notice was in all respects correct. When, then, was the case coram judice ? Certainly, upon proof of publication, if not before. Then, how can it be said that afterwards it came to be coram non ? If it were before the court upon ’the publication, it continued to be before the court until the end of the case. The decree was in the very case, between the very parties to the bill and publication, and upon the very contract oset out in the bill. All the safeguards and.requirements of the law, to prevent an assumption of jurisdiction, had been fulfilled. The case was brought precisely to the point at' which the court is intrusted with the rights of the parties litigant.
    Now, the most that can be said against the decree is, that it did not fully cover' the whole case made by the bill. It does not distinctly decree a conveyance of the fourth of the land to the plaintiff, Hawkins. , To have done full justice, and to have settled all the equities which grew out of the contract, that should have been done with more certainty. But if that alone had been decreed, it would not have settled all the equities, or decided the whole case. For the contract did not merely contemplate such .conveyance, but contemplated also remuneration to Hawkins for services and advances, stipulated for as one term of the contract, and to be rendered and made,, in reference to the land.
   Mr. Justice McLEAN

delivered the opinion of the court.

This case is before us on points certified, on which the opinions of the judges of the. Circuit Court of the United States for Ohio were opposed.

■ In 1825, a bill was filed by Thomas L. Hawkins, in the Court of Common Pleas for Sandusky County, Ohio, against Thomas E. Boswell and others, which represented that, in the year 1816, Boswell, of the State of Kentucky, the complainant, Reed, and Owings agreed to build a saw-mill on the public land,, with. the. view of purchasing the land when jold by the government.’ Boswell and Owings advanced a part of the money .;, the complainant was to. bé the active parti.fr, and his share of the capital w;as to be paid by labor. That he expend* ed labor and money until the land was sold, in 1818, at Wooster, in Ohio, when Reed and Owings abandoned the contract; and it was then agreed by Boswell, William T. Barry, of Kentucky, and William Whitimore, of Boston, and the complainant, to- go on and purchase lot number nine, or a large part of it, on which the building' for the mill had been commenced. The purchase was made, and it was agreed that the complainant’s share of the purchase-money should be paid in labor on the mill, and in improvements on the land. That he should, be the active partner, &c.

The complainant proceeded in the construction of the mill, and.jexpended for the company the sum of five thousand dollars, of which he advanced two thousand six hundred dollars, besides his own time ; that the complainant expected his partners would have conveyed to him one fourth of the land purchased, they having obtained a legal title to two thirds of the lot,.but that they have refused to do the same, or to account and refund him the money expended, &c. And the complainant prayed a decree for one fourth part of the land to which the defendants have obtained a title, and also that they may account, &c.

The defendants being non-residents of Ohio, the court ordered nir'-.e weeks’ notice to be given in a newspaper, as the statute requires. There being, no appearance of the defendants, the bill was taken as confessed,, and the matter was referred to a master, who reported a balance against them, and in favor, of the complainant, of the sum of eighteen hundred and forty-four dollars and seventeen cents, for which a final decree was entered, and it was adjudged that it should have, from the time of its being pronounced, the operation and effect of a judgment at law, and be a lien on all the town lots of the defendants, and all other real estate owned by them within the county. And execution was authorized, &c. Several executions were issued and a number of lots were sold, among others lot number seven, containing seventy-seven acres and seventy-five hundredths, for which the sheriff’s deed was executed.

For this lot number seven, an ejectment was brought by Boswell in the Circuit .Court of the United States, and issue being joined, on the trial the following questions were raised, on which the opinions of the judges were opposed.

1. Whether or not the proceedings and decree of the said Court of Common Pleas of Sandusky County, set forth in the record above stated, are coram nonjudice.

2. Admitting said proceedings and decree to be valid so far a.s relates to the land specifically described in the said bill in chancery, whether or not said proceedings and decree are coram lion juclice and void so' far as relates to lot number seven, in controversy in. this case, and which is not described in said bill in chancery; or, in other words, whether said proceedings and decree are not in rem, and so void and without effect as to the other lands sold under said decree.”

As the title to lot number seven only is involved in the ejectment suit, it is unnecessary to consider the first point certified. Under the decree, which was only for monejr, many lots were sold .by the sheriff that are still held, it is presumed, under his deed; but the holders are not parties to this suit', and it may be decided without affecting their interests.

When the record of a judgment is brought before the court collaterally or otherwise, it is always proper to inquire whether the court rendering the judgment had jurisdiction. Jurisdiction is acquired in one of two modes; — first, as against the person of the .defendant, by the service of process; or secondly, by a procedure against the property of the defendant, within the jurisdiction of. the court. In the latter case the defendant is not personally bound by the judgment, beyond the property in • question. And' it is immaterial whether the proceeding against the property be by an attachment or bill in chancery. It must be, substantially, a proceeding in tem. A bill for the specific execution of a contract to convey real estate is not strictly a proceeding in rem, in ordinary cases ,• but where such a procedure is authorized by statute, on publication, without personal. service of process, it is, substantially, of that character.

The chancery act of Ohio of 1824 confers on the Court of' Common Pleas general chancery powers. In the twelfth section, jurisdiction is given over the rights of absent defendants, on the publication of notice, “ in all cases properly cognizable in courts of equity, where either the title -to, or boundaries- of, land may come in question, or where a suit in chancery becomes necessary in 'order to obtain the rescission of a contract for the conveyahcé of land, or to compel the specific execution of such contract.”

• Under this statute the bill by Hawkins purports to have been filed.- But without reference to the other lots sold under the decree, there is no .pretence to say that the bill had any relation, to the title or boundaries of lot number seven, or to any contract for the conveyance of the same. And it is only in these cases that the act authorizes a chancery proceeding against the land of non-residents by giving public notice. It is a special and limited jurisdiction, and cannot be legally exercised, except within the provisions of the statute.

The principle is admitted, that, where jurisdiction is acquired against the person by the service of process or by a voluntary appearance, a court of general jurisdiction will settle the matter ■ in controversy between the parties. But this principle does not apply to a special jurisdiction authorized by statute, though exercised by a court of general jurisdiction. The present ©ase will illustrate this view. Admit that a special jurisdiction was acquired against all the other lots, yet number seven was in no way connected with them. It was not named in the bill, nor was there any step taken in relation to it, until it was levied on by the sheriff to satisfy the general decree. It was not within any one of the categories named in the statute. Until long after the decree, the title to it was not obtained by defendants. If it can be made subject to such a procedure, then the special jurisdiction given by the statute is converted, by construction, into a general proceeding against the property of. non-resident© by a mere publication of notice.

The property of an individual is subject, in a certain sense, to the law of the State in which it is situated. It is-liable for taxes and to such' special proceedings against it as the law shall authorize. An-attachment may be laid upon it, and it may be sold’ in satisfaction of an established claim. And the legislature may, perhaps, subject other lands to the payment of the judgment on the attachment after the sale of the lands first attached. But no such proceeding is authprized by the act. under which this procedure \yas had. It is limited to' the cases enumerated in the statute.

It is said that the statute authorizes a decree for money. This may be admitted. Under the rescission of a contract the money paid may be decreed to be refunded, and the land covered by the contract, being within the special jurisdiction of the court, may be ordered to be sold. But the power of the court is limited to this. Under the assumption of a special power, it cannot be made general by any supposed necessity, beyond the provisions of the act. Such .a construction would not only pervert the objectof the legislature, but it. would sacrifice the property of an individual without notice in fact, and who had no opportunity to make his defence.

The proceedings in this case are a practical commentary upon this construction.

It is said, if this construction of the act be erroneous, it does not make void the proceedings, and that the error can only be corrected by an appellate court. And we are referred to the case of Lessee of Boswell and others v. Sharp and Leppelman, 15 Ohio, 447, in which, it is alleged that the Supreme Court of Ohio sustained the decision of the Common Pleas on the question now before us.

In that case the Supreme Court did hold that the Court of Common Pleas of Sandusky had jurisdiction in the chancery proceeding, and that the validity of the same could not be questioned collaterally. But that: decision was made in reference to a part of lot number nine, on which the mill was constructed, and to obtain a title for a part of' which the bill was filed. The title to lot number seven was not involved in the case before the Supreme Court, and, consequently, they did not consider it.

It may be difficult in some cases to draw the line of jurisdiction so as to determine whether the proceedings of a court are void or. only erroneous. And in such cases every intendment should be favorable to a purchaser at a judicial sale. But the rights of all parties must be. regarded. No principle is .more vital to the administration of justice, than that no man shall be condemned in his person or property without notice, and an opportunity to make his’’ defence. And every departure from this fundamental rule, by a proceeding in rem, in which a publication of notice is substituted for a service on the party, should be subjected to a strict legal scrutiny. Jurisdiction is not to be assumed and exercised in such cases upon the general ground, that the subject-matter of the suit is within the power of the court. This would dispense with the forms of the law, prescribed by the legislature, for the security of absent parties. The inquiry should b.e, have the requisites of the statute been complied with, so as to subject the property in controversy to the judgment qf the court, and is such judgment limited to the property named in the bill. If this cannot be answered in the affirmative, the proceedings of the court beyond their jurisdiction are void.

If this test be applied to the proceedings before us, we think in no just and legal sense can they be held.to subject lot number seven to the decree of the court, nor to-fix any personal liability on the defendants, and consequently, that the levy and sale of the sheriff were without authority and void, and the second question certified to this court must be so answered.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Ohio, and on the points or questions oh which the judges of the said Circuit Court were opposed in opinion, and which were certified to this court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel. On consideration whereof, it is the opinion of this court, that the proceedings aiid decree of the Court of Common Pleas of Sandusky County, as set forth in the record, are coram non judice and void, so far as relates to lot number seven, and conséquently that the levy and sale of the sheriff were without authority and void. Whereupon it is now here ordered and adjudged by this court, that it be so certified to the said Circuit Court.