Wynn v. Morris et al.

State of Arkansas, by a writ of error issued under the 25th section of the judiciary act.

The case is fully stated in the opinion of the court.

It was submitted on printed arguments, by Mr. Pike for the plaintiff in error, and by Mr. Watkins and Mr. Bradley for the defendant.

The arguments upon both sides were directed almost entirely to the merits of the case; the question of jurisdiction was made by the counsel for the defendant in this manner:

If the decision of the court below had been against the right claimed by Mrs. Taylor, under the act of Congress of the 29th of May, 1830, she would have had a right of appeal, but Wynn would not; although the case might be said to involve the construction of that act, because, confessedly, he does not claim any right under it.

The decision being in favor of the right, there is no ground left for the appellate jurisdiction of this court to rest upon, unless the plaintiff can make it appear that the decision of the court below involved the construction of the act of September 4th, 1841, and was against a right claimed under that act for granting lands to the State of Arkansas.

But, according to the case made by the bill, the State does not and cannot claim any title to this land under the act of 1841. Whether the plaintiff ever acquired any right to it from the State or under the selection, is purely a question of contract, or of private grievance, as between him and the State. True, he must trace his title back to the act of 1841. But in that sense, every disputed land case might come up to this court, as all titles are more or less remotely derived from the United States.

Mr. Justice CATRON delivered the opinion of the court. The complainant filed his bill in a State Circuit Court in Arkansas, to enjoin Morris from executing a writ of possession founded on a recovery by an action of ejectment for the northwest quarter of section 18, in township 16, south of Red river. Wynn alleges that the whole of the quarter section was cultivated by him, and had been for years before the inception of Morris's title, and that he, Wynn, claimed title to the land through the State of Arkansas, and that Morris had obtained a legal title in fraud of Wynn's superior right in equity.

Morris claims through Keziah Taylor. In 1829 and in 1830, when the occupant law of that year passed, she was a widow, and cultivated a small farm on the land in dispute; she sold

Wynn v. Morris et al.

out her possessions there in the latter part of 1830, left the country secretly, and settled permanently in the Mexican province of Coahuila and Texas, and there she remained without returning to Arkansas until December, 1842, when she n.ade her appearance, proved her cultivation in 1829, and her cortinuing possession in May, 1830, in the form prescribed by the act of that year, had her pre-emption allowed, entered the land, and sold it to Morris. She got a patent in 1844.

The reason why Mrs. Taylor did not enter the land at an earlier day was, that the township No. 16 was not surveyed until 1841, and within one year before the date of her entry.

Wynn seeks a decree on the ground that Morris procured Mrs. Taylor to enter the land for Morris's benefit, when she had no right of pre-emption, because of the abandonment of her possession for more than ten years.

The register and receiver held that a preference of entry was vested by the act of 1830, and they refused to investigate the fact of abandonment. This opinion was concurred in by the Commissioner of the General Land Office. And, to correct this alleged error, the bill was filed. The State Circuit Court refused the relief prayed; adjudged that Mrs. Taylor obtained a valid title to the land, and decreed damages against Wynn for detaining the possession. From this decree he appealed to the Supreme Court of Arkansas, where the decree of the Circuit Court was affirmed, and to that decree Wynn prosecutes his writ of error out of this court; and the first question here is, whether we have jurisdiction to re-examine and reverse or affirm the decree of the State courts. This can only be done in a case where is drawn in question the construction of a statute of the United States, &c., and the decision is against the title set up or claimed under the statute by the losing party. If Wynn had no title, of course he could not claim under a law of the United States, and cannot come here under the 25th section of the judiciary act of 1789, merely to draw in question the decree which dismissed his bill.

To this effect are the cases of Owings v. Norwood's lessee, (5 Cra., 344;) Henderson . Tennessee, (10 How., 311.)

Wynn sets up a pretension of claim to the land in dispute through the State of Arkansas, which State was authorized to locate 500,000 acres of land by acts of Congress passed in 1841 and 1842; and the complainant insists that he had made a contract with the State, through her locating agent, Charles E. Moore, who was acting under instructions from the Governor of said State, to the effect that he, the complainant, should be allowed to purchase the land from the State at two dollars per

acre.

But the State did not locate this quarter section, nor

Garland v. Wynn.

had it an interest in it at any time; so that the title was outstanding in the United States till Keziah Taylor made her entry.

The complainant, Wynn, having no interest in the land but a naked possession, not protected by an act of Congress, we order that his writ error be dismissed for want of jurisdiction.

JOSIAH GARLAND, PLAINTIFF IN ERROR, V. ROBERT H. WYNN, EXECUTOR AND DEVISEE OF WILLIAM WYNN, DECEASED.

Where several parties set up conflicting claims to property, with which a special tribunal may deal, as between one party and the Government, regardless of the rights of others, the latter may come into the ordinary courts of justice, and litigate the conflicting claims.

Therefore, in a case where the register and receiver of public lands have been imposed upon by ex parte affidavits, and the patent has been obtained by one having no interest secured to him in virtue of the pre-emption laws, to the destruction of another's right who had a preference of entry which he preferred and exerted in due form, but which right was defeated by false swearing and fraudulent contrivance brought about by him to whom the patent was awardedin such a case, the jurisdiction of the courts of justice is not ousted by the regulations of the Commissioner of the General Land Office.

THIS case was brought up from the Supreme Court of Arkansas, by writ of error issued under the 25th section of the judiciary act.

It was submitted on printed arguments, by Mr. Bradley and Mr. Watkins for the plaintiff in error, and by Mr. Pike for the defendant in error.

The controversy referred to the northeast quarter of section 18, in township 16 south, range 25 west of the fifth principal meridian, south of Red river, in the county of Lafayette.

The facts of the case are stated in the opinion of the court. The bill was filed by Wynn, who alleged that he would have got a patent but for Garland's proving a pre-emption right in the land, under the act of 1830, to exist in Hemphill. After various proceedings, the Circuit Court (State court) decreed against Wynn. The Supreme Court of the State reversed this decree, and ordered Garland to convey the land in question to Wynn, upon payment of two hundred dollars, with interest; or in case of neglect, that the decree should stand as a conveyance, &c.

From this decree, Garland appealed to this court.

The principal points of law involved in the argument were: 1st, whether or not Wynn could interpose between the United

Garland v. Wynn.

States and the patentee; and, 2d, whether the decision of the officers of the land office was not conclusive upon all persons except the United States, and upon them also until the patent was vacated by regular judicial authority.

Mr. Justice CATRON delivered the opinion of the court. In November, 1842, William Wynn (the complainant below) proved that he had a preference of entry to the quarter section of land in dispute, according to the act of 1838, and his entry was allowed.

In February, 1843, Samuel Hemphill made proof that he had a right of pre-emption to the same land, under the act of May 26th, 1830. The two claims coming in conflict, it was decided by the register and receiver at the local land office, that Hemphill had the earlier and better right to enter the land; and in this decision the Commissioner of the General Land Office concurred.

Wynn's entry being the oldest, it was set aside, his purchase-money refunded, and a patent certificate was awarded to Samuel Hemphill, who assigned it to Garland, the plaintiff in error, to whom the patent issued. The benefit of the patent was decreed to Wynn by the Supreme Court of Arkansas; to reverse which decree, Garland prosecutes his writ of error out of this court.

It appears, from the allegations and evidence, that Garland procured the proofs, and was in fact the principal in obtaining a preference of entry in the name of Hemphill, and in causing Wynn's elder entry to be vacated; that the whole proceeding, on the part of Garland and Hemphill, was a mere imposition on the officers administering the public lands; that Hemphill never had any improvement on the northeast quarter of section 18, but that his improvement was on the northwest quarter of section 17, which adjoins the quarter section in controversy; and that Garland induced the witnesses, who made the proof before the register and receiver to establish Hemphill's preference of entry, to confound the quarter sections and their dividing lines, and misrepresented the extent of the cleared land occupied by Hemphill in 1829 and 1830; so that the witnesses ignorantly swore that the improvement and cultivation were in part on the northeast quarter of section 18, which was wholly untrue; and by which false swearing Wynn's entry was set aside, and Garland obtained a patent of the land. Garland insists, by an amended answer in the nature of a distinct plea, that, by the law of the land, the Circuit Court had no authority or jurisdiction to set aside or correct the decision of the register and receiver; and that their adjudication

Jones et al. v. McMasters.

and judgment in granting and allowing the pre-emption rights to and in the name of Samuel Hemphill was final and conclusive, and cannot be inquired into, or in any manner questioned, modified, or set aside.

This matter was put in issue; and the court below, when it decreed for the complainant, necessarily decided against the bar to relief set up and claimed under an authority of the United States.

The question is, have the courts of justice power to examine a contested claim to a right of entry under the pre-emption laws, and to overrule the decision of the register and receiver, confirmed by the Commissioner, in a case where they have been imposed upon by ex parte affidavits, and the patent has been obtained by one having no interest secured to him in virtue of the pre-emption laws, to the destruction of another's right, who had a preference of entry, which he preferred and exerted in due form, but which right was defeated by false swearing and fraudulent contrivance brought about by him to whom the patent was awarded?

The general rule is, that where several parties set up conflicting claims to property, with which a special tribunal may deal, as between one party and the Government, regardless of the rights of others, the latter may come into the ordinary courts of justice, and litigate the conflicting claims. Such was the case of Comegys v. Vasse, (1 Peters, 212,) and the case before us belongs to the same class of ex parte proceedings; nor do the regulations of the Commissioner of the General Land Office, whereby a party may be heard to prove his better claim to enter, oust the jurisdiction of the courts of justice. We announce this to be the settled doctrine of this court.

It was, in effect, so held in the case of Lytle v. The State of Arkansas, (9 How., 328;) next, in the case of Cunningham v. Ashley, (14 How. ;) and again in the case of Bernard v. Ashley, (18 How., 44.)

It is ordered that the decree of the Supreme Court of Arkansas be in all things affirmed.

JAMES R. JONES, CHARLES C. JONES, WILLIAM G. GORMAN, ROBERT LOTT, JOHN TIPPIN, MATTHEW T. TIPPIN, AND JOHN R. TALLY, PLAINTIFFS IN ERROR, v. CATHERINE MCMASTERS, BY HER NEXT friend, MANUEL YBARBA.

Where a person was born at Goliad, then in the State of Coahuila and Texas, being a part of the Republic of Mexico, which place was also the domicil of her father and mother until their deaths, and was removed at the age of four years, before the declaration of Texan independence, to Matamoras, in Mexico, this por Bon is an alien, and can sue in the courts of the United States.