ecutor, letters of administration de bonis non of the estate of Mr. pson were granted by the orphans' court of the county of Washto Mr. Law, by authority of which he received in money the of the first instalment, and certificates for the balance, which he ince transferred to a third person, represented to be the agent of s having claims against the estate.

a still later date, letters of administration de bonis non, of the same` , were granted by the proper court in the city of Baltimore (the il of Mr. Thompson) to a Mr. Tucker; the latter being the person according to the laws of Maryland, was entitled to administration. ot suggested that there are any debts due from the estate to persons ng in this District.

e power of the district court to grant letters of administration in this in respect to the assets existing here, is unquestionable; and the ent of the money and delivery of the certificates to Mr. Law were ore regular. But as both Mr. Thompson and his executor were uts of Baltimore, the orphans' court of that city was the more ap ate court for granting administration de bonis non. And there is no

that the administration in this District must, from the date of the s of administration granted in the city of Baltimore, be deemed subate to the latter administration; and it is possible that the orphans' of the county of Washington may revoke the letters granted by it. until revoked, all payments in this District, of debts existing here, . Law, or his authorized agent, will be valid.

s certainly competent for the department to withhold payment of the cates until the rights of the parties shall have been judicially deter1; and there would seem to be much reason for that course in this But the propriety of such a step is a question of discretion, on it is not the province of the Attorney General to advise. I take berty, however, to refer to some observations on the proper mode of ising this discretionary power, contained in my opinion in the case essrs. Callaghan and Stewart, and more especially in the opinions predecessors therein referred to.

I am, sir, &c., &c.,

the SECRETARY OF THE TREASURY.

B. F. BUTLER.

PRE-EMPTIONS TO ALIENS.

ption accrues to aliens under the acts of 1830 and 1834, especially where the local law authorizes them to hold and convey real estate.

ATTORNEY GENERAL'S OFfice,
April 18, 1836.

: In your letter of the 8th instant, you request my opinion on the ving question arising under the pre emption acts of the 29th May, , and the 19th June, 1834:

Does the right of pre-emption, granted by said acts, accrue to persons were not citizens of the United States at the time of the passage of acts?"

In reply to your inquiry, I have the honor to state, that I find nothing in either of these acts to limit their operation to citizens of the United States. The words "every settler or occupant of the public lands," a sufficiently broad and comprehensive to include aliens; and as it must have been well known to Congress that the public lands were, in mary cases, in the possession of persons not actually citizens of the United States, it is not to be believed they would have used these general terms, had they designed to confine the benefit of these laws to citizens merely, Aliens, if actual settlers, were within the policy of these laws; and though, as a general rule, they cannot hold lands against the State, yet, according to the laws of most (if not all) of the American States, they may take lands by grant, and may hold the same till divested by forfeit ure, on office found, or by death and escheat. The words of the law being sufficiently general to embrace all persons capable of taking and holding lands under letters patent from the United States as against them, and aliens having this capacity, I am of opinion that your question must be answered in the affirmative.

Had I any doubt on the general question, I could entertain none on the particular case mentioned in the postscript, provided the local laws of the State of Illinois allow aliens to hold and convey lands as you suppose. I have, &c.,

Hon. LEVI WOODBURY,

Secretary of the Treasury.

B. F. BUTLER.

ASSIGNEES OF PRE-EMPTION CERTIFICATES.

The assignee of a pre-emption certificate takes it subject to the equities subsisting between the settler and the United States.

The legal title is in the United States until a patent issues; and where the equities are equal, the legal title will prevail.

A purchase without notice is a good defence against a suit, but not good ground to maintain one, even in cases where the doctrine is applicable.

ATTORNEY GENERAL'S OFFICE,
April 18, 1836.

SIR: I have had the honor to receive your letter of the 6th of February last, transmitting a letter from the Commissioner of the General Land Office, and an accompanying argument; in the latter of which papers t is mentioned that "whatever control the General Land Office may have over a pre-emption in first hands, after it has been allowed by the register and receiver, the pre emption certificate assigned is beyond the reach of the Commissioner and Secretary of the Treasury, and unquestionably in the hands of a bona fide assignee without notice."

My opinion being requested on this subject, I have carefully examined the pre emption laws on which the question arises, and have also considered the argument enclosed to me. The result of my reflections is, that the assignee of the pre emption certificate (supposing it, for the purposes of this opinion, to be assignable) takes it subject to all the equities exist ing between the original parties-the United States and the settler to whom it was given-even though he had no notice of such equities at

ne of the assignment and payment of the purchase-money; and can require a specific execution of the engagement contained in e-emption laws, on no other terms than could have been insisted on assignor, the original vendee.

error of the argument in favor of the assignee consists in assuming e equities of the parties are merely equal, and that the legal title is assignee. The legal title, until letters patent shall have issued, is United States; and if their equity is merely equal to that of the ee, yet it must be preferred, because they have the legal title. The e as to purchasers for a valuable consideration without notice, is icable for another reason. If this were a case in which the parties both suable, the appropriate remedy of the assignee, to compel the r to complete the title, would be by a bill in equity for a specific nance: in other words, as the United States are in possession, and to convey, the assignee must necessarily be the plaintiff. But a ase for a valuable consideration, without notice, is not ground on to maintain a suit-it can only be used as a defence; it is a mere and not a weapon of attack.

ll cases of this sort, the rule caveat emptor is particularly applicand if the assignee has chosen to part with his money without prosuitable means of indemnification to meet the contingency of a of title in his assignor, he must submit to the consequences of his retion.

I have, &c.,

the SECRETARY OF THE TREASURY.

B. F. BUTLER.

AUTHORITY OF REGISTERS AND RECEIVERS.

ns of registers and receivers upon the facts offered to establish pre-emption rights, unhe act of 29th May, 1830, are conclusive.

et in a judicial capacity in weighing and deciding upon the sufficiency of the evidence d; and although they are to observe the rules prescribed by the Commissioner of the Office, they cannot be compelled to act upon any judgment but their own. suing of patents, however, depends on the Commissioner, who may suspend them e the decisions were obtained by fraud, or founded in material errors of fact or law.

ATTORNEY GENERAL'S OFFICE,

April 21, 1836.

I have had the honor to receive your letter of the 15th instant, in you request my opinion on the following questions:

. Whether the absolute decision of the register and receiver under the mption acts of the 29th May, 1830, and 19th June, 1834, by which ference in the right of purchase is awarded to individuals, in virtue ssession and cultivation, is subject to reconsideration by the Comoner of the General Land Office, and this department, before issuing ent?"

. Whether the same can be reversed for what may on inquiry appear ve been a mistake in opinion merely, on either the law or the fact?" 3. Whether the decision of the register and receiver, that the proof of vation and possession was satisfactory, can be revised, and new or ional evidence be received here, cr a new or different decision be

made here on the old evidence, so far as it may be reported to the Land Office?"

The points involved in these questions have been substantially decided by one of my predecessors.

In an opinion bearing date the 28th of August, 1819, the Attorney General decided that, under the pre emption law of the 5th of February, 1813, the power of ascertaining and deciding on the facts which entitle a party to the right of pre-emption was exclusively vested in the register and receiver of the land district in which the lands were situated, without any power of revision elsewhere. The language of the law on which this decision was made, is very nearly the same with that of the act of the 29th of May, 1830, on which your questions arise. The proof of settlement or improvement is, in each case, to be made to the satisfaction of the register and receiver; the only material difference is, that by the act of 1830 such proof is to be made "agreeably to the rules to be prescribed by the Commissioner of the General Land Office for that pur pose." This, however, in my judgment, does not vary the matter.

The Commissioner of the General Land Office is to prescribe, in advance, such general rules in regard to the mode and nature of the proof to be made, as he shall think suitable; and those rules are to be observed and conformed to by the register and receiver. But the proof adduced in conformity to such rules is in each case to be received, considered, and decided on, by the register and receiver. In weighing the evidence, and in deciding on its sufficiency, these officers act in a judicial capacity: if t proves to their satisfaction that the settlement and improvement required by law have been made, they must allow the entry; if it fails to satisfy them of those facts, they must disallow it. The law has not authorized any other officer to reverse or revise their decision; nor can they be com pelled to decide according to the dictates of any judgment but their own. But though the register and receiver of the land district in which the land is situated are made, by law, the exclusive judges of the sufficiency of the proofs, on all claims to pre emption rights under the acts in question, it does not, therefore, follow that letters patent are in all cases to be issued by the General Land Office, on the certificates of purchase granted by them. No doubt it would have been competent for Congress to have an nexed such a consequence to that certificate. But they have not chosen to say that, whenever an entry is allowed and a certificate granted by the register and receiver, a patent shall be issued; nor to make any provision which I can think tantamount to this. On the contrary, they have contented themselves with providing that, when proof of settlement and cultivation shall have been made to the satisfaction of those officers, the party shall be authorized to enter any number of acres, not more than 160, ora quarter section, to include his improvements, upon paying to the United States the minimum price, &c. The issuing of the patent is thus left to depend on the general duty of the Commissioner of the General Land Office, and on the various acts of Congress by which that duty is prescribed; and all these cases must, therefore, be understood to stand on precisely the same ground, so far as the right to demand and the duty to execute a patent are concerned, as that occupied by the ordinary entries and certificates of purchase.

I infer from the opinion of my predecessor, delivered in 1827, in a case arising under the act of the 17th of February, 1815, for the relief of the

inhabitants of New Madrid, in Missouri, that the General Land Office has always exercised the power of suspending the execution of patents, in cases of serious doubts or of conflicting claims, until the direction of Congress or the decision of a competent tribunal can be obtained. In the opinion last mentioned, this practice is approved and its legality maintained by the Attorney General. The nature of this case and the grounds of the opinion will sufficiently appear by the following extract: "Mr. Bates demands the patent, because, however the facts may be, he has produced the patent certificate; and the issuing the patent is an act so parely ministerial, that the officer is bound to issue it, although he may see distinctly that it is about to issue for lands not at all subject to the claim; that is to say, the President of the United States, whose peculiar constitutional function it is to see that the laws are properly executed, is himself to become instrumental in a conscious breach of these laws by signing the patent, because an inferior officer has originally taken a false step in giving what Mr. Bates calls a patent certificate. I am not of this opinion; on the contrary, I think it most proper that all executive action on the subject should cease until the judiciary shall have decided on the claim."

In a subsequent opinion, bearing date the 22d of October, 1828, the Secretary of the Treasury was advised by the Attorney General that no patent ought to issue for lands which have been inadvertently sold without any legal authority to sell them, the mistake having been brought to the knowledge of the Commissioner of the General Land Office before the emanation of the patent.

I have no doubt as to the soundness of these opinions; and in reference to cases arising under the pre-emption laws of 1830 and 1834, I think it very clear that the Commissioner of the General Land Office may lawfully suspend the execution of letters patent in every case where he shall be satisfied that the decision of the register and receiver was obtained by fraud, or was founded on material error of fact or of law, until the decision of the judiciary or the direction of Congress can be obtained. The power thus to suspend the issuing of a patent fairly results from those clauses of the constitution which require the President to take care that the laws be faithfully executed, and which vest in him the executive power. By the express provisions of the acts of Congress, letters patent for lands are to be signed by the President, or by his secretary in his name; and the General Land Office is moreover a branch of the Treasury Department, and thus a part of the Executive. The Commissioner of the General Land Office, in the exercise of his ordinary and appropriate functions, thus represents the President, and acts with his authority. If he sees that the register and receiver, through corruption, ignorance, or any other cause, have allowed pre-emption claims not authorized by law, he may well suspend the execution of the patent until he can take the direction of the head of his department; and, with the sanction of that head, the execution may be still further suspended until the direction of Congress or the decision of some competent judicial tribunal shall have been obtained.

It is perhaps needless to add that the power of withholding the execution of a patent when the regular certificates have been produced ought not to be exercised except on strong grounds. It is equally obvious that the particular course to be adopted when the application for a patent has been suspended must, of necessity, depend on the peculiar circumstances