MORTON v. GREEN.

years before been sent to them for delivery to the parties. Oral evidence was given showing that the lands were salines.

The Court directed the jury to find a verdict for the defendants; which they did. Judgment being entered thereon, the plaintiffs filed this petition in error.

D. Gantt, for plaintiffs in error.

1. The Court erred in overruling the objections to, and admitting in evidence, the letters of the Commissioner of the General Land-Office, the letters of the surveyor-general, and reports of sub-agents of the government, because the same were ex-parte proceedings, and offered to show that the entry of the lands in question was cancelled by land-officers, who were successors to those who made and approved the contract with the purchaser.

By such contract of purchase of the land, the purchaser acquired a "vested right," which can only be set aside or cancelled according to law by a proper judicial tribunal, and not by the land-officers. U. S. Constitutional Amendments, Art. V.; Astrom et al. v. Hammond, 3 McLean, 109; Morton v. Blankership et al., 5 Mo., 355; Johnson v. Tousley, Sup. Ct. U. S., last term; United States v. Stone, 2 Wallace, 535-537; United States v. Bank of Metropolis, 15 Peters, 401; Merrill v. Hartwell, 11 Mich., 20; Harty v. Hull, 2 Binn., 511; United States v. Willard, Paine, 539; Janes v. Lawler, 33 Ala., 340; Ware v. Brush, 1 McLean, 535.

2. The only fair and legitimate construction of the fourth section of the Act of July 22, 1854, is to apply its provisions and inhibitions exclusively to the donation system of lands provided in the second and third sections. Any other interpretation will produce contra

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dictions in the act which cannot be harmonized; and will also bring this act in direct conflict with the proviso of the eleventh section of the Act of April 19, 1864. Sturgis v. Crowninshield, 4 Wheat., 202.

3. The eleventh section of the Act of 19th April, 1864, clearly and distinctly recognizes a "vested right to the land in question in J. W. Prey, grantor of plaintiffs, and thereby operates as a clear, sufficient, and indubitable affirmation and confirmation of title in the purchasers, and estops the United States from denying a "vested right" in the lands in the plaintiffs. Fletcher v. Peck, 6 Cranch, 137; Strothers v. Lucas, 12 Peters, 454; Van Rensselaer v. Kearney, 11 How., 325; Penrose v. Griffith, 4 Binn., 231.

4. The Act of May 18, 1796, that of March 26, 1804, and all other land acts of the government providing for the disposal of public lands, must, in respect to every one of such acts, according to every rule of construction, be limited in its application to those lands only which are designated in the act, and can extend only to lands in that Territory designated to which the Indian title had been extinguished. Reynolds v. McArthur, 2 Peters, 426; Danforth's Lessee v. Thomas, 1 Wheat., 158; Cherokee Nation v. State of Georgia, 5 Peters, 17–48.

James E. Philpott and Seth Robinson, for Green & Smith, defendants in error.

I. 1. The act of the Commisioner of the General Land-Office in cancelling Prey's entry was not a ministerial duty, but a matter resting in his judgment and discretion, and within his jurisdiction, requiring the construction and consideration of many acts of Congress. Gains v. Thompson, 7 Wallace, 347, and cases there cited; Bates v. Herron, 35 Ala., 117; O'Brien v.

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Perry, 1 Black, 132; Harkness v. Underhill, 1 Black, 316.

And the following cases to the contrary are not supported by any principle of sound reasoning, and the point was not necessary to their determination: Groom v. Hill, 9 Miss., 323; Perry v. O'Hunlon, 11 Miss., 585; Arnold v. Grimes, 2 Iowa, 1; Brill v. Styles, 35 Ill., 305.

2. The operation of such action on the part of the commissioner was not, indeed, to destroy any of the equities of the plaintiffs or Prey; but it was effective to settle the question of the legal title between the plaintiffs and the United States: otherwise the plaintiffs might compel the issuance of a patent, and thereby clothe themselves with the legal title; but it is settled that this cannot be done. Gains v. Thompson, above cited.

3. The only ground upon which it can be claimed that the plaintiffs ever possessed the legal title to the land in controversy is furnished by sect. 411 of the Code of Civil Procedure, which makes the usual duplicate receiver's receipt proof of title equal to a patent against all but the patent itself. But, whatever force this section may be entitled to, it is subject, nevertheless, to the following qualifications, which are operative here; namely:

(1.) The first qualification is, that whenever the question in any court, State or Federal, is, whether the title to land once the property of the United States has passed, that question must be resolved by the laws of the United States; but whenever, according to those laws, the title shall have passed, then that property, like all other property, becomes subject to State legislation, so far as that legislation is consistent with the admission that the title passed and vested according to

MORTON v. GREEN.

the laws of the United States. Wilcox v. Jackson, 13 Peters, 517; 3 Washburn on Real Prop., 169.

(2.) The second qualification is, that until the patent has actually been issued, and the title passed in accordance with the laws of the United States, it remains subject to the control, judgment, and discretion of the executive department of the General Government; and it is only after the legal title has so passed from the United States, and the matter has ceased to be under the control of the executive department, that courts of justice will interfere, and decree the legal title to belong to the person against whom the department has decided. Gains v. Thompson, above cited.

4. How, then, can it be contended that the plaintiffs have legal title, when that title is impeached and effectually destroyed by the very record which is adduced in support of it?

5. Now, the legal title to the lands in controversy is vested either in the plaintiffs or in the defendants, or in the United States. It is not in the plaintiffs, for the reasons above stated. If it be not in the plaintiffs, it is immaterial in which of the others it may be; for, if it be in either, the judgment of the Court below must be affirmed. If it be in the United States, the plaintiffs cannot prevail in any form of action: not in ejectment to recover the possession, because, to do that, they must allege and prove a legal estate in themselves; not by bill to recover the title, because the United States is not a party, and could not be made a party. If it be in the defendants, they may prevail by first filing a bill to recover the legal title, but not in an ejectment to recover the possession.

The cancellation of Prey's entry left the plaintiffs but a mere equity. Gains v. Thompson, 7 Wallace, 347, 353; Lytle v. Arkansas, 9 How., 315; Barnard v. Ash

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ley, 18 How., 43; Garland v. Wynn, 20 How., 6; Bates v. Herron, 35 Ala., 117; Brill v. Styles, 35 Ill., 305; O'Brien v. Perry, 1 Black, 132; Harkness v. Underhill, 1 Black, 316; Hester v. Kembaugh, 9 S. & M., 130.

And no case can be found where ejectment has been supported upon a mere entry, backed only by a duplicate receiver's receipt, where the legal title has actually passed from the government to the defendant, or where the government has refused, through its proper officers, to part with the legal title, except in those States where ejectment will lie upon an equitable title; and Missouri is such a State. O'Brien v. Perry, above cited; see Wilcox v. Jackson, 13 Peters, 517.

Where the legal title has not passed from the government, or where it has passed to one party, another party holding a mere duplicate receiver's receipt necessarily has but an equitable title at best; and an equitable title will not support an action of ejectment. Jackson v. Harrington, 9 Cow., 88; Jackson v. Sisson, 2 Johns. Cas., 321; Jackson v. Van Slyck, 8 Johns., 486; Jackson v. Demont, 9 Johns., 60; Robinson v. Campbell, 3 Wheat., 212; Fenn v. Holme, 21 How., 481; Hickey v. Stewart, 3 How., 750; Adams on Ejectment, 43 et seq., and note 1, and cases cited; Tyler on Ejectment, 74 et seq., and cases cited.

And the only way in which an equitable title can be assisted at law is by allowing the presumption to prevail in certain cases that there has been a conveyance of the legal estate. Jackson v. Pierce, 2 Johns., 226; Adams on Ejectment, 44, note 1.

6. By special statute in some States, an equitable title which will support an action for a conveyance will support ejectment. Adams on Ejectment, 44, notes; Tyler on Ejectment, 73. But in this State, by express enactment,