on his settlement a house fit for the habitation of man, and shall clear, euclose, and cultivate at least five acres of said land, and reside thereon for the space of four years next fllowing the first year after the date of his permit, if he shall so long live; that he shall, within one year after the survey of said lands, and the opening of the proper office, prove before such tribunal, and in such manner and form as the Commissioner of the General Land Office, with the approval of the President, shall prescribe, the fact that the settlement has been commenced, and the quarter section upon which it is located, and shall, within six months after the expiration of five years from the date of this perimit, prove in like manner the fact of continued residence and cultivation.

Upon his compliance with these conditions, the settler will be entitled to a patent for the quarter section upon which his settlement shall have been made; and the act explicitly declares that the title thereto shall not vest before, and avoids all sales, gifts, devises, agreements, bonds, or powers to sell, transfers or lieus whatsoever of such land, or any portion thereof, made at any time before such patent shall have issued.

It is, therefore, clear, except in the contingency provided for in the fifth section of the act, that the title can in no case vest in any settler till five years shall have elapsed; and only then upon showing a compliance with the condition of previous continued residence and cultivation. The inquiry now is, what are the rights of the settler during this probation of five years, before his claim to the land has matured, so as to entitle him to a patent? My opinion is, that during that period he has no right to cut or sell any timber, except for the purpose of clearing, cultivating, enclosing, and occupying the land so settled. The terms of the grant make it incumbent on him to improve at least five acres. He has the power to clear, cultivate, and enclose the whole; but that power must be exerted with the bona fide view to a settlement. The law will not permit him, under the pretext of settling, to pillage the public domain; and, having done so, by abandoning, to defeat the leading purposes of the enactment. He is in the condition of a purchaser upon termis to be complied with, who, until compliance, will be restrained from acts permanently affecting the value of the estate. The destruction of the timber, except for the purposes of the occupation, will be waste, which a court of chancery, upon a proper application, will enjoin.

I have the honor to be, very respectfully, sir, your obedient servant, JNO. NELSON.

Hon. DAVID HENSHAW,

Secretary of the Navy.

RIGHT OF REGISTERS AND RECEIVERS TO PURCHASE PUBLIC LANDS.

Registers of the land offices cannot lawfully be, except as is specially provided, concerned in the purchase of the public lands. They are agents of the government to sell; and upon principle, as well as by the express terms of the act creating their offices, they are precluded from entering on their books any application for lands in their own names, or in the name of any other person in trust for them.

If registers wish to purchase land they are required to make application to the surveyors general, who are authorized to make the proper entries and returns in such cases.

But receivers being a different class of officers, and standing in relations to the government different from those sustained by registers, may purchase the public lands the same as other citizens.

The law has imposed no restraints upon receivers in this respect; and the nature of their public duties indicates no necessity for any.

The executive department may enforce by regulations the prohibitions of the law as to purchases by registers; but it is incompetent to make regulations to restrain receivers of public moneys from purchasing the public lands like other citizens.

ATTORNEY GENERAL'S OFFICE,

August 12, 1843.

SIR: I have had the honor to receive your communication of the 2d instant, suggesting that a practice prevails among the receivers of public money and the registers of land offices of being interested, directly or indirectly, in the purchase or entry of public lands which are for sale, after having been offered at public auction, which exposes innocent and fair purchasers to extortionate demands, and obstructs the sales of the lands; and requesting me to investigate the subject, and to give you my opinion "whether it is competent for the Treasury Department, or for the Presi dent, by regulation, to prohibit and prevent this practice?"

The duties of receivers of public money and registers of land offices are prescribed by the act of the 10th of May, 1800. Receivers are required by that act, after their appointment made by the President, by and with the consent of the Senate, before they enter upon the duties of their office, to give bonds with security for the faithful discharge of their trust; to give receipts for the money received by them to the persons respectively paying the same; to transmit within thirty days in case of public sale, and quarterly in case of private sale, an account of all the public moneys by them received, specifying the amount received from each person, and distinguishing the sums thus received for surveying expenses, and those received for purchase-money, to the Secretary of the Treasury and to the registers of the land offices, as the case may be; and within three months after receiving the same, to transmit the money by them received to the Treasurer of the United States. The registers of the land offices, by the provisions of this act, are charged with various duties incident to the disposal of the public lands at private sale: they are to receive and enter the applications of persons for the purchase of any section or half section, &c., and are essentially the government agents by whom such sales are made.

This class of officers, it is quite clear, both upon principle and by the express terms of the law which created them, cannot properly be concerned in the purchase of the public lands. The 10th section of the act of 1800 provides that they shall be precluded from entering on their books any application for lands in their own name, and in the name of any other in trust for them; and if any register wishes to purchase any tract of land, this act authorizes him to do it, by application in writing to the surveyor general, who is required to enter the same on books kept for that purpose by him, and to proceed in respect to such applications, and to any payments made for the same, in the same manner which the registers by the same act are directed to follow in respect to applications made to them for lands by other persons.

The register of a land office can purchase only in the mode prescribed by the act of Congress; and it is in the power, as it is the duty, of the President to withhold from him any evidence of title to lands which he may seek to acquire in any other manner. The privilege of thus purchasing is, however, secured to him by law, with which, of course, the executive authority cannot rightfully interfere.

In cases of collusion the remedy is two-fold: the contract may be avoided, and the unfaithful public officer dismissed. To enforce these provisions of the law, the executive authority may be exerted, and such regulations prescribed as may be deemed necessary to effectuate them. Receivers of the public money I cannot regard, after the most careful investigation, as officers standing in the like relation to the government, or upon whom, as purchasers of the public domain, the executive departments have authority to impose any restraints. The law has imposed none, and, in my judg ment, the nature of their public duties indicates no necessity for their application to them.

Receivers are not the agents of the government by whom the sales of the public lands are effected. They have no power to receive bids, to make entries, give certificates, or perform any other function incident to such sales. They are the mere depositaries of the public money accruing upon the sales, having no other power than to receive and transmit it to the treasury. No abuse of their office can transfer the public domain, unless it be by giving receipts for money which may not come to their hands; and for that alone the law has provided a remedy in the responsi bility of the sureties on their official bonds. The suggestion made by the Solicitor of the Treasury in his report transmitted with your communication, that the immunity of the receivers, if they be permitted to compete with other purchasers of the public lands, from the obligation of making the payments required by law, they being both payers and payees, gives them advantages not enjoyed by other citizens, if true to a greater extent than it really is, could not, in my judgment, authorize any executive interference. It is matter proper for legislative action, and not for executive control. But I cannot perceive how, if the law in regard to the receivers themselves be enforced, they can enjoy the advantage supposed, since it is their duty punctually to transmit not only their accounts to the proper department, but, within three months after receiving the same, the moneys by them received, to the Treasurer of the United States.

If it be said that receivers may collude with registers, and thus defraud the government, the answer is, so may other purchasers practise the same collusion; and the remedy for the correction of this evil is to be sought in the appointing power, which is always competent to its redress. There is a single view amongst the many that have occurred to me, which I beg leave to present as conclusive to show that the proposed interference by executive regulation would be wholly without authority. Congress, when passing the act of 1800, had before them the whole subject of the public lands. They were prescribing the duties and limiting the privileges of public officers; restraints to guard against anticipated abuses were devised by them. Registers they have declared to be incompetent, except in a particular mode, to become purchasers of the national domain. Receivers they have left upon the footing of all other citizens. This discrimination they have made because they regarded the one class of officers as agents for the sale of the lands, and the other as maintaining no such relation to the public. And any other interpretation would place the receivers in a position which it cannot be reasonably supposed Congress designed them to occupy; for whilst, by pursuing a particular mode, registers are unquestionably qualified purchasers under the 10th section of the act of 1800, receivers, if not allowed to buy as other persons, would be denied the privilege upon any terms, and thus officers unrestrained by the express

terms of the law would, by construction, be bound in fetters more restric tive than are those against whose abuses Congress seems to have been especially solicitous to guard.

Nor is this inference deducible from the act of 1800 alone. Congress by subsequent enactments have imposed restraints upon the right of purchase, on the Secretary of the Treasury, First Comptroller, and various other public officers, without including in the enumeration receivers of the public money; and, as late as 1836, five years after the date of the circular from the General Land Office, prescribing the mode in which receivers may consummate their purchases, and when it must have been known that they habitually availed themselves of this privilege, the national legisla ture prohibited from making such purchases, or being in any way interested therein, the Commissioner of the General Land Office and his principal and other clerks. Can it be supposed that, whilst legislating upon this subject, the receivers of the public money, if designed to be embraced by those restrictive provisions, would not have been specifically named? Upon the whole, I am of opinion that the Treasury Department, or President, may by regulation enforce the prohibitions of the law as to the purchase of the public lands by the registers of land offices, but that they are incompetent by such regulations to restrain the right to purchase of the receivers of the public inoneys.

I have the honor to be, very respectfully, sir, your obedient servant, JOHN NELSON.

Hon. JOHN C. SPENCER,

Secretary of the Treasury.

REPAYMENT OF PURCHASE MONEY FOR LANDS.

Repayment of purchase money should be made in cases where the purchase of land from the United States is found to be void by reason of a prior sale, or by the confirmation or other legal establishment of a prior British, French, or Spanish grant, or for want of title in the United States from any other cause (See act of 12th January, 1825.)

Instances where there is a deficiency in the quantity of land purchased, and where an entry has been made of land to which another had a pre-emption right, are cases falling within the terms of the act, and call for repayment.

But in cases of error arising from miscalculations of the amount to be paid, where the money paid has not been returned by the receiver, the excess should not be paid from the treasury; but the error should be corrected by the receiver. Where, however, the excess or overpayment shall have found its way into the treasury, it cannot be withdrawn except in strict fulfilment of the requisitions of law, which the "administrative power" cannot control.

ATTORNEY GENERAL'S OFFICE,
August 14, 1843.

SIR: The questions propounded by your communication of the 7th instant have been carefully examined, and I am of opinion that the practice of the General Land Office therein referred to is erroneous, and ought to be corrected. The first class of cases stated, "where there is a deficiency in the quantity of land purchased," and the third, "where an entry has been made of land to which another had a pre-emption title," seem to me to fall strictly within the terms of the act of the 12th of January, 1825. That act provides" that every person, or the legal representative of every person, who is, or may be, a purchaser of a tract of land from the United States, the purchase whereof is, or may be, void by reason of a prior sale

thereof by the United States, or by the confirmation or other legal establishment of a prior British, French, or Spanish grant thereof, or for want of title thereto in the United States from any other cause whatsoever, shall be entitled to repayment of any sum or sums of money paid for or on account of such tract of land, on making proof to the satisfaction of the Secretary of the Treasury that the same was erroneously sold in manner aforesaid, by the United States, who is hereby authorized and required to repay such sum or sums of money paid as aforesaid."

The general purpose of this act is to assure to purchasers a prompt return of money paid by them for lands to which the United States can give no title. Whether that disability proceeds from one or another cause, is unimportant. All that a purchaser claiming under the provis. ions of this law is required to show is, that the land for which his money has been paid into the public treasury was erroneously sold by the United States. The money thus paid being received without consideration, or upon a consideration which has failed, the principle of equity incorporated into this enactment entitles the party paying it to its return. Now, can it be doubted that if a vendor, by mistake, sell to a purchaser more land than he has, and receives the purchase money for the excess, that this is a case of erroneous sale which cannot be consummated? And if it cannot be consummated, is it not because the vendor is without title to the land thus sold, and which he cannot, therefore, convey? And if a vendor, having the legal title to land sold, has encumbered it by a previous contract of any kind which is susceptible of enforcement, and which renders it impossible for him to assure to the purchaser a valid conveyance, who has ever doubted that he may be compelled to refund the purchase money received by him, and this because he cannot give title? And is not this precisely the case of an interfering pre-emption claim in reference to lands which the United States cannot effectively convey? The object of the purchaser, in a transaction of this kind, is to secure the land purchased; and that of the United States, to get the consideration for it. The obligation of the one is to pay the purchase money-of the other to convey the land. If by paying the purchase money, the purchaser cannot get the tile, he loses the very thing he meant to buy. The United States are bound to make to him the conveyance, if they can. If they cannot, it must be because they have not the title to transfer; and if without the title, from any cause whatsoever, the act of 1825 avoids the sale as having been "erroneously made," and requires the Secretary of the Treasury to refund the purchase money.

The Chickasaw trust fund, accruing from the sale of Chickasaw reser vations, is required, by the act of the 20th April, 1836, to be paid into the treasury of the United States, in the same manner that moneys received from the sales of public lands are paid into the treasury; and is, I think, subject to the like control of the Secretary, who may properly exert the authority conferred by the act of 1825, in all cases of erroneous sales and entries of such lands.

In reference to cases of error arising out of miscalculations of the amounts to be paid, I have had more difficulty. Money thus paid is never properly in the treasury of the United States. It is paid and received by mutual mistake; and as long as it remains in the hands of the receiving officer, I can perceive no good reason why, upon the discovery of the error, he should not be authorized to correct it. After it has found