Nicks' Heirs and Others vs. Rector, 4 Ark. 251

By the Court, Lacy, J. (The Chief Justice not sitting in the case). The complainant in this case sets up title to the land described in his bill, as the legal owner of a pre-emption right of Duval & Cams, under the act of Congress of 29th of May, 1830, which was rejected, and the entry refused by the Register and Receiver of the Land-office at Batesville, by reason of a prior fraudulent location of the same land, by John Nicks, made by virtue of a donation claim, granted to Andrew Matthews, upon which a patent had issued, and conveyed by Matthews in fee to the heirs of Nicks.

The respondents claim under the location of the ancestor, which, they say, was made in good faith, and under an authority given to him in his lifetime, by William Morse, the actual settler upon the premises, and, therefore, their patent rightfully issued, and they are entitled to possession under it. The bill prays to enjoin Nicks’ heirs from instituting. any proceeding under the patent, and Gibson and wife from setting up any claim of dower, perpetually quieting the possession of the complainant, and that of Duval, who holds under him.

The decree affords the-relief prayed for; to reverse which, an appeal has been taken to this Court. Before we proceed to an investigation and decision of the several important questions that arise in this case, we will first notice and determine a number of minor points, that were raised upon the hearing, and insisted upon here. These relate, principally, to matters of practice, and, as such, may readily be disposed of in a few words.

The objection to filling up the blank in the commission, by the insertion 'of the words, “ to any Justice of the Peace,” that the exhibits were not annexed to the depositions proving them, and to establishing the exhibit of the deed from Duval to Rector,, viva voce, without notice or a previous order, all of which points the Chancellor overruled at the hearing, we regard as mere matters of practice, clearly within the exercise of his discretion.

And this being the case, if there was any error or mistake committed, it cannot be taken advantage of in this Court upon appeal, especially when these questions do not enter seriously into the merits of the decree. The authorities are clear and express upon the point, that much allowance must be made for infirmity and errors upon mere rules of practice, falling within the equitable exercise of his authority.

And this Court is not authorized to reverse a decree upon mere questions of practice, unless the Chancellor has expressly violated some important principle of equitable jurisprudence, or disregarded some plain and authoritative, command of the statute upon that subject. In the present instance, we perceive no such violation of principle, or disregard of any positive injunction. This rule is all-important for the government of our systems of chancery practice, and, without its enforcement, it would be impossible for the Chancellor to proceed with the business of the Court.

The rigid application of the rules of English practice to our courts would, in many cases, be wholly impracticable, and, if allowed, would work most manifest injustice and wrong. The Chancellor, upon the hearing, unquestionably possessed the power to cause the blank in the commission to be filled up. For the commission is certainly nothing more than the process of the Court, which may, at any time, be amended upon suggestion, in an unimportant point.

The provision in our statute, requiring the exhibits to be attached to the depositions, and to be sealed up, and returned with them, was only intended for greater certainty and security in proving them, and does not, in our opinion, apply to a case where the exhibits are made a part of the bill, and filed with it. The design and object of the law are certainly answered, if the exhibits are shown to the witnesses, and they are iden. tified.

And upon no principle of fair construction, can a party be required to take them from the rolls, for the useless purpose of attaching them to the depositions; nor would it be proper to allow it. All the statute requires is, that the exhibits should be identified, and their execution proved.

That clause in the statute regulating the proceedings in chancery. that requires the. testimony of vi'ii.neiAus to be taken in writing, unless otherwise directed by the Court apon the hearing, so far from denying to the Chancellor the right of causing an exhibit to be proved viva voce upon the trial, expressly gives him authority to do so, provided, in the exercise of bis discretion, he does not take the party by surprise, or commit any serious wrong.

In the present case, the exhibit proved viva voce upon the hearing, was filed with the bill, and there can be no pretence that those who wished to controvert it, had not a fair opportunity afforded them of questioning its genuineness, ft is surely a more regular practice, and one more consonant with the principles of equity, to prove the exhibits before the examiner, it is likewise usual, where an exhibit is proved viva voce, first to obtain an order, car parte, accurately describing it, and giving four days’ notice before tito hearing; but tins rule has been changed, and a reasonable notice, instead of an order, is now substituted in its stead.

And there arc many cases to be found, where both the order and notice have been dispensed with, upon tue ground, that no injustice was done by permitting the exhibit to be proved viva voce upon the hearing. And in the case of Desplaces vs.

Goris, 5 Paige Rep. 252, Chancellor Walworth said, in a case where a written agreement was proved upon the hearing viva voce, and that, too, where no notice or order was had; “ that there was no pretence, on the part of either of the defendants, that they had any reason to believe that the agreement was not in fact executed, or that the translation, as stated in the bill, was incorrect; that the only clfcct of denying the application would be, to subject the parties to the delay of a new suit, as it would, under the circumstances, be a r/aiter of course to permit the bill to be dismissed without prejudice/’ in that case, the objection, that the the agreement was not sufficiently proven, was taken after the plaintiff’s counsel had closed the opening argument, and the defendant’s counsel had responded.

And in Poor vs.

Carleton, 3 Sumner, 76, Justice Story well remarks, <c there arc numerous cases which show the gradual mutation and changes, often silent, and almost imperceptible, which have been -inti educed into the practice of courts of equity, to obviate inconveniences, which experience has demonstrated, and to adapt the remedial justice of these, courts (o Site new exigencies of society.” These remarks apply with peculiar force to our courts of chancery jurisdiction, which only sit once in six months, and then but for a limited period, with no rule days, and no opportunity afforded for taking the necessary and regular steps in the proceeding, which is happily ihe case in other chancery systems, better organized and more fortunately situated than our own.

Consequa vs. Fanning et al. 2 J. C. R. 481; Barrow vs. Rhinelander 1 J. C. R. 551. But whether the decision of the Chancellor upon this point be right or wrong, we deem it immaterial. Regarding it, as we do, to he a mere question of practice, and within the discretion of the Court, there can be no advantage taken of it upon appeal. Rogers vs. Hosack's Ex'r, 18 Wend. 319. Mandeville vs. Wilson, 1 Cranch, 15. The People vs. Rector, 19 Wend. 569. Prescott vs. Tufts, 7 Mass. 209.

Another objection raised is, that the evidence of the hand-writing of Nathan Barnett, one of the witnesses to the conveyance of Morse to Duval & Cams, ought not to have been received, his absence not being sufficiently accounted for. The rule upon this subject is properly stated in the case of Brown vs. Hicks, 1 Ark. Rep. 232, and Wilson vs. Royston, 2 Ark. Rep. 315, and in the authorities there cited. The principles there established, fully authorize the Chancellor to receive secondary evidence of the hand-writing of the witness proving the execution of the agreement.

It was proved, upon the trial, that four years ago, the witness had gone to the State of Kentucky, and that he was supposed to be dead, and nothing more heard of him. This proof is uncontradicted by any opposing evidence, and, certainly, according to, all the adjudicated cases upon the point, the hand-writing of the witness may be proved. Jackson vs. Gager, 5 Cow. 385. Jackson vs. Cody, 9 Cow. 140. Jackson vs. Waldron, 13 Wend. 178. It is contended, that the evidence offered under the certificate and seal of the commissioner of the General Laiid-office, was improperly received.

It is said to contain irrelevant testimony, and the certificate not to be in due form of law. It may be, and probably is true, that a considerable portion of the matter contained in that record is not strict proof in the cause, but it surely will not be presumed that could have had any influence upon the mind of the Chancellor, in determining the matter, 6r, that certain portions of the record being irrelevant, should exclude other portions, which were relevant and legal.

The act of Congress organizing and establishing the land-office, makes all records, books, or papers, belonging to the office of the commissioner, authenticated under his signature, and the seal of his office, competent evidence in all cases in which the original record, books, or papers, could be evidence. Gordon’s Digest, p. 320.

It was evidently the design of Congress to place the seal of the office on the footing with seals of courts of record; and, consequently, the seal of the General Land-office, and the signature of the commissioner to copies of originals, required by law to be deposited in his office,prima facie prove themselves. U. S. vs. Bonner, 1 Bald. 236. Bleecker vs. Bond, 3 Wash. C. C. R. 529. Smith vs. U. S. 5 Peters, 229. Having disposed of these preliminary points, we will now consider the main questions in the cause.

The first inquiry is, what is the nature and character of the agreement entered into between Nicks and Morse? There arc two agreements, evidencing the contract of the parties, and both executed on the same day, to wit: on the 21st of January, A. D. 1829. The first part of the contract is, a sale from Morse to Nicks, of his improvement, with an authority to locate the same by a donation claim; and when the land was thus secured, it was to be for the joint benefit of both, and to be divided according to the stipulations therein contained. This agreement was signed by both Morse and Nicks.

The second part of the contract, which was signed by Nicks alone, was a note of hand, by which he bound himself to pay Morse two hundred and fifty-nine dollars, the price of the improvement, on or before 15th of May, A. D. 1829, containing this express stipulation: if he, Nicks, should secure, by a donation claim, a patent to the land on which the improvement was made, then the obligation was to be in full force, otherwise, it was to be of no effect. It is clear that these two instruments are to be taken together, as constituting one entire contract.

They both have relation to the same subject matter, and bear date of the same day. The rule of law upon the subject is, that when the transaction is evidenced by two papers, the connection between which is established by their contents, without any necessity of referring to other matter to connect them together, they will be taken as one entire agreement. Boydell vs. Drummond, 11 East. 140. Chitty on Con. 23. By one agreement, Morse gives authority to Nicks to locate the land by a donation claim, for their joint benefit, upon certain terms.

By the other, Nicks was to pay the note only on the condition that the location should be made by a certain day. It was in the power of Nicks to defeat the payment of the note, by postponing the location. It was certainly not competent for Nicks to release himself from all liability, and to hold Morse bound by his license. In all covenants, there must be a mutuality of agreement upon the respective parties, to be obligatory. Should the time have elapsed lor location, could Nicks have enforced the specific execution of the agreement against Morse? Certainly not.

And it is equally as clear, that after that period, Morse could not have enforced the payment of the note by Nicks. A court of equity will never decree a specific performance, unless the remedies are mutal, or where one party only is bound by the agreement. Upon Nicks’ failure to make the location upon the day fixed, the authority given to him expired, because he was not bound, beyond that day, to pay for the improvement.

The terms of the contract bound the parties to the performance of their mutual agreements, upon a day certain; and both the license given to Nicks, to locate, and the obligation to pay the money, expired at that period, and at one and the same time. The clause in the act of the 6th January, 1829, was a mere personal privilege, or protection, afforded by law to the actual settler, in the peaceful enjoyment and occupation of his improvement. The policy of the government upon this subject, has ever been, to protect the bona Jide occupant of the soil against an unjust and unwarrantable intrusion.

Hence, his improvement and settlement are secured to him; and this privilege has ever been guarded assiduously by courts of justice, unless it clearly appeared that the settler either waived his privilege, or had transferred his improvement and interest, bona fide, to another.

If, by any means, the settler transferred this right or privilege, or signified his consent to the location, it would be a mere waiver of his right to his improvement and settlement-; and possibly a personal covenant that would bind him so long as lie continued to reside on the land, and the agreement be made to operate by way of an equitable estoppel; and it probably could not be revoked, if its terms were absolute and unconditional. But it would be otherwise, where its terms were conditional, and limited to a particular time.

Such an agreement would certainly be binding, so long as the actual settler remained upon, and continued in possession of, the land. But should ho voluntarily abandon his possession, then his consent to such location would seem to us to bo of no avail. The act of Congress certainly contemplated the consent of the actual settler upon the land; for it has so expressed it. It makes the location of a donation claim, without such consent, if the land had not beers previously offered for sale, absolutely null and void.

But it is contended, in behalf of the defendants, that the location by Nicks, in this instance, is taken out of the operation of the act of Congress of 6th of January, A. D. 1829, upon the ground, that the authority and license granted by Morse to make the location, was coupled with an interest, and, therefore, irrevocable.

Justice Story, in his accurate and admirable treatise upon agency, page 495, says, “ where a power pr authority is coupled with an interest, or where it is given for a valuable consideration, or where it is a part of a security, there, unless there is an express stipulation that it shall be revocable, it is, from its own nature and character, in contemplation of law, irrevocable, whether expressed so on the face of the instrument conferring the authority, or not;” and ho puts several cases by way of illustration — a power to levy a fine, as a part of a security to a creditor; letter of attorney to sell a ship, as a security upon a loan of money, and the like.

This doctrine was fully considered and determined in the case of Hunt vs. Rousmanier, 8 Wheaton, 174, and the distinction between a mere power, and a power coupled with an interest, is there clearly defined. In that case, Chief Justice Marshall remarked: “ It becomes 'necessary to inquire, what is meant by a power coupled with an interest? Is it an interest in the subject on which the power is to be exercised? Or is it an interest in that which is produced by the exercise of the power?

We hold it to be dear, that the interest which can protect a power after the death of the person who creates it, must be an interest in the thing itself. In other words, the power must be engrafted upon an estate in the thing. The power and the interest are united in the same person.” In the present case, is the power here engrafted upon the estate in the land? Was not the estate in the land to be created by the exercise of the power? It certainly was.

For by the exercise of the license or authority given to Nicks, to make the location, the land upon which the improvement was situated, was to be secured; and the interest in the estate, or thing, was by the entry to' be produced, by the exercise of the power. This being the case, in the language of that Court, the power, to produce the interest, must be exercised, and by its exercise, it is extinguished. The power ceases when the interest commences, and, therefore, in the present case, there is no pretext whatever, that the license given to Nicks was a power coupled with an interest, or irrevocable.

Morse never constituted Nicks his agent. In making the location, Nicks acted for himself, and not for Morse, and this their agreement clearly shows. There are no equal equities established between Nicks and Duval & Cams. The principle, as to an equal subsisting equity, does not apply — that he who is prior in time, is first in right. Morse had neither a legal nor equitable estate in the land. He merely possessed an inchoate, or imperfect right to the possession of the improvement, against all the world, except the United States, and that only so long as he continued to reside upon it.

In no respect can Morse or Duval & Cams be regarded as the tenants of Nicks. Nicks had neither a fee in the land, or a, life estate in the freehold, or any kind of interest which would create the relation of landlord and tenant. Neither Morse, Duval, or Cams ever professed to hold under him, or derive any title whatever from Nicks’ supposed interest. The proof unquestionably establishes the fact, that Morse applied to Nicks for the payment of his note, after it became due; that Nicks refused to pay, from some cause or other; and from that time forward, Morse considered the contract and treated it as dissolved.

Upon Morse’s failure to obtain the purchase money from Nicks, he immediately sold his improvement to Duval & Cams, for the sum of five hundred and ninety dollars, which they paid him the 29th June; and upon the 29th July, A. D. 1829, they acquired all his right and title therein, by regular conveyance, executed in their behalf by Morse, and claimed to be the sole and exclusive owners of the improvement, and the actual settlers upon the land. Morse never set up any adversary claim, or disputed either their right of improvement or possession.

He abandoned the entire occupancy to them in October of the same year, and moved off the premises, leaving them in the actual and quiet possession of the land, and its improvements. After their purchase, the proof shows they added other valuable improvements upon the land, and were in the cultivation, and actual and sole possession of it, when Nicks made his location in November, A. 1). 1829; and that Duval has, for Carns and himself, and for himself individually, and for the, present complainant, continued to reside on the same tract ever since, and now holds it in possession.

In the view we have taken of this case, it matters not whether Duval & Carns had notice or not of Nicks’ purchase from Morse; for, after his leave to locate had expired, Nicks had no interest whatever in the improvement. Shortly after Duval & Carns purchased from Morse, they applied to- the proper land-office to secure their improvement, by a donation claim, before Nicks located the same; but their application was rejected, for a supposed informality in giving their consent to the location..

It was after this, that Nicks located the land; and whether he. was apprised or not, that Duval & Carns were the actual settlers on it, he made his location at his own election and peril, and he must abide the consequences. If they were settlers— and that they were, there can be no doubt — then, without obtaining their consent, (which is not pretended in this case), his location, being made before the land was offered for sale, by the express terms of the law, is declared to be held null and void.

His authority to locate is a gratuity, on the part of the government, to the original claimant, whose rights he acquired, given upon express compliance with certain, conditions contained in, and annexed to, the graht, one of which is, if the donation claim is laid on the improvement of an actual settler, where the land has not been offered for sale, then, and in that case, the location is in violation, and in fraud of the law creating the grant; and,, of course, the patent that issued on the claim must be held to be void.

After Nicks had made his location, Duval & Cams applied to the proper land officers, to enter their pre-emption right, but their application was rejected, not upon the ground that they had no right of pre-emption, or that it was not a good and valid one, capable of being fully established; but on the ground that the land had been previously entered by Nicks, and that, therefore,' they were deprived of the benefit of the act of Congress, of 29th May, A. D. 1830.

Now, it must be perfectly manifest, if Nicks’ location was void, being in fraud of law, of course Duval & Caras’ right of preemption was not annulled by such location. It is equally clear, if Duval and Cams were entitled to the right of pre-emption, they cannot, on any principle of law or equity, be deprived of that right, by the land officers refusing the entry. Upon the case being brought to the consideration of the Commissioner of the General Land-office, he directed the Register and Receiver to take the proof, and report the facts to the department, which was accordingly done.

The patent issued to Matthews, A. D. 1831, and Nicks has obtained a deed from the original claimant, and brought an action of ejectment against the tenant ip possession; and it is now contended, in their behalf, that the decision of the Register and Receiver is final and conclusive between the parties; and that, whatever right of pre-emption Duval & Cams once had, it has now ceased to exist.

It will be botne in mind; that the Register and Receiver never passed upon the validity or genuineness of Duval & Caras’ pre-emption, but they merely refused their entry, because the land had been previously* located by Nicks, with a donation claim. The proof taken before them unquestionably established, beyond all doubt, that Duval & Cams strictly and fully complied with all the requisites of the act of 29th of May, A. D. 1830, and, as settlers and occupants, they were entitled to the benefit of the act.

It is true, that the decisions of the Register and Receiver are conclusive as to all matters properly within their jurisdiction, in the absence of fraud; for the act of Congress, for many purposes, makes them judicial officers, and gives them exclusive cognizance of a particular class of cases. But we apprehend that the case now under consideration does not fall within the enumeration. The Supreme Court of the United States, in the case of Wilcox vs. Jackson, 13 Pet. 490, has laid down the whole- doctrine upon this subject.

The pre-emption act of 29th May, 1830, provides that, prior to an entry being made, proof of settlement and improvement, to the satisfaction of the Register and Receiver of the district in which the lands claimed are situated, shall be taken, agreeably to the rules prescribed by the Commissioner of the General Land-office.

Upon this grant of power to the Register and Receiver, the Supreme Court remarks, “ that the decision of the officers, in the absence of fraud, would be conclusive, as to the facts that the applicant for the land was in possession, and of his cultivating the land during th(§ preceding year, because these questions were directly submitted to them.” But, says the Court, “ if they undertake to grant pre-emptions to land upon which the law declares they shall not be granted, then they are acting upon a subject matter clearly not within their jurisdiction; as much so as if a court, whose jurisdiction was declared not to extend beyond a given sum, should attempt cognizance of a case beyond that sum.” So the act of Congress, of the 24th of May, 1828, authorizes the Register and Receiver to take the proper testimony for the establishment of donation claims, according to the requisitions of the act.

As to the facts of settlement and removal, agreeably to the provisions of the treaty, the decision of these officers is conclusive, because it appertains strictly to their jurisdiction. But when the Register and Receiver undertook to decide that Duval & Cams’ improvement upon the land was legally subjected to a location by a donation claim, then they were deciding in a matter entirely beyond their jurisdiction.

No power was given them by law, nor were they authorized or required by the instructions of the General Land-office, to allow an improvement of an actual settler to be located by a donation claim, without his consent, in regard to that matter, they had no jurisdiction. The person entering a donation claim, did so at his peril; and, if he located lands upon which there was an actual settler, without obtaining his consent, such location was null and void, and the settler is, in our opinion, relievable in equity.

The entry of Nicks’ location being void by law, of course the patent invests those claiming under it with no title. The bill does not seek a decree for a title, nor does it pray to vacate the patent. It only asks, that the possession of the complainant shall remain undisturbed by a patent illegally issued, and palpably void — a patent procured by a grant of Congress, and yet obtained in express derogation of the condition annexed to the grant. Nicks’ entry having been shown to be void, Duval & Cams, or their assignee, have the exclusive right of purchasing and holding the land.

They have a vested, legal, and equitable right, equivalent to an interest in the land. Having tendered the purchase money to the government, to enter their pre-emption, their right becomes complete and fixed. Even an entry by a bona fidc^ purchaser is not good against a valid pre-emption. The tender of payment in due time, and of the requisite amount, is sufficient, in ordinary cases, between individuals, to save the right of the parties making’it. In cases of executory agreements, it will entitle him who made it, in a court of equity, to a specific performance of the contract.

We take the same principle to hold good in cases arising under the land laws, between a settler and the government. ' The rule in regard to the sufficiency of a tender is, if ,a debtor offers to produce the money, and its production is dispensed with by the creditoi4, the tender is complete and valid, without being actually made. The tender, in this case, was sufficient, because the land officer refused to receive the money.

As to the jurisdiction of a court of equity in this case, we entertain no doubt. “ Whenever the law declares certain instruments illegal and void, as the British annuity act does, or as the gaming acts do, there is inherent in the courts of equity, a jurisdiction to order them to be delivered up, and thereby give effect to the policy of the Legislature; and, if this was not the case, a party would have a right w'ithout a remedy, or clear equitable interest or title without any means for its protection or enforcement.” Clark vs.

Smith, 13 Pet., in which this language is used, to show that equity may cancel a patent, declared, by the Legislature, to be void. 10 Ves. 218. 5 Ves. 604. 2 Yerger, 524. It only remains to be shown, that Duval’s assignment to Rector of his pre-emption right, under the act of 1830, is valid.

The act, it is true, declares all assignments and transfers of the right of pre-emption, prior to the issuing of the patent, null and void; but, by a supplementary act of 23d January, 1832, it was enacted, that from and after its passage, all persons who haye purchased under the act of 1830, may assign and transfer thei^certificates of purchase or final receipts, and patents may issue in the, name of such assignee, any thing to the contrary notwithstanding. 2 Land Laws, 298. Cams did not sell his interest to Duval until after the passage of this act, to wit: in December, 1832, and Duval sold to Rector in 1837. .

At the time of neither sale, was the transaction contrary either to the policy or letter of the law; and, if a person whose pre-emption was allowed, could sell, certainly those who had .only been prevented from purchasing, by the fraud of a third party, and the dereliction of duty and .negligence of the officers of the United States, could have no less a right to' dispose of their interest. =- It seems to us, on a careful consideration of the whole case, that the complainant has amply shown, that he is entitled to the relief prayed for in his bill, and granted by the decree; and therefore it is ordered in all things to be affirmed.