Lownsdale v. Parrish.

virtue of the treaty between the two nations of October 20th, 1818, (art. 13,) which was continued in force by the convention of August 6th, 1827.

In June and July, 1845, the people of Oregon territory, "for mutual protection, and to secure peace and prosperity among themselves," elected delegates, who met in convention, and adopted laws and regulations for their government, "until such time (say they) as the United States of America extend jurisdiction over us. In this plan of government, it is provided that any one wishing to establish a claim to land shall designate the extent of his claim by line-marks, and have it recorded in the office of the territorial recorder; the claim not to exceed a mile square, or 640 acres. The description of claim under which the complaint and the respondents set up title is founded on this regulation. By the treaty of 15th June, 1846, the line dividing our possessions and those of Great Britain west of the Rocky mountains was concluded; and on the 14th of August, 1848, Congress passed an act to establish the territorial government of Oregon, in which the laws then existing under the provisional government (established by the people) are continued, and declared to be operative until altered. "But (says the act, sec. 14) all laws heretofore passed in said territory, making grants of land, or otherwise affecting or encumbering the title to lands, shall be, and are hereby declared to be, null and void." Congress passed no law in any wise affecting title to lands in Oregon territory till September 27, 1850; and the bill in this case was filed July 29, 1850, so that, when the litigation commenced, neither party to the suit had any title to or interest in the land whatever; and therefore the respondents and appellees could not sustain injury by being enjoined not to erect buildings on lands belonging to the government in which they had no interest. It is proper to remark here, that we have nothing to do with, nor can we notice, rights acquired to this property by acts of con- [*294] gress passed subsequently to the origin of this controversy.

*

Neither the constitution of the United States, nor an act of congress, or a treaty, was "brought in question" in the lower court; neither side could have legitimately raised such a question, and called for its decision; and to give this court jurisdiction of the case, in this instance, the question must have been raised and decided in the lower courts, and it must so appear on the record. (16 Peters, 281.)

Being of opinion that there is no jurisdiction in this court to examine and revise the decree of the supreme court of Oregon, we order the appeal to be dismissed.

Morehouse v. Phelps.

DICKERSON B. MOREHOUSE, Plaintiff in Error, v. WILLIAM A. PHELPS.

21 II. 294.

PRE-EMPTION TO GALENA LOTS-EFFECT OF PATENT.

1. By the act of congress of February 24, 1829, concerning the town of Galena, those claiming as pre-emptors or settlers gained no vested right until they proved their claim and paid the purchase money.

2 Under the act of 1836, which appointed commissioners to take proof of claims, where patents issued to the legal representatives of a claimant, these were the parties who presented the claim, procured the certificate of the commissioners, paid the purchase money, and received the patent.

3. It did not inure to the benefit of a party who had purchased of the settler many years before, but took no interest in the matter, and asserted no claim until after the patent had issued.

4. The case differed in this, respect from confirmations of Spanish grants, because, in those cases, vested private rights were recognized by congress, while here the United States, being absolute owner, disposed of the title as congress should direct.

WRIT of error to the supreme court of Illinois. The question at issue was, what class of persons is meant by the phrase legal representatives in a patent for Galena lots issued under the acts of 1829 and 1836? (4 Stats, at Large, 334; 5 Stats. at Large, 79.) The remainder of the case is stated in the opinion.

Mr. Washburne and Mr. Reverdy Johnson, for appellants.

Mr. Blair, for appellee.

[* 302 ] Mr. Justice CATRON delivered the opinion of the court. Phelps recovered of Morehouse the undivided moiety of lots Nos. 8 and 9 in the town of Galena, in a State circuit court in Illinois, which judgment was affirmed in the supreme court of that State; and from this decision the cause is brought here on writ of error. We are now called on to re-examine the controversy to the extent that acts of congress, and the proceedings of officers acting under the authority of the United States, are drawn in question.

Phelps claims, through a paper addressed to the agent of the United States superintending the lead mines at Fever river; and this paper his counsel assumes to be a deed that conveys lands. It bears date November 8, 1829, and is from Guyard to Phelps, for a moiety of the lots in dispute.

The courts of Illinois held it to be an effective conveyance of title, and that, by force thereof, Phelps became "the legal representative" of Guyard, within the intent and true construction of the patents made to the representatives of Guyard and Morehouse. The act of 1836 required that commissioners should hear and

Morehouse v. Phelps.

determine all claims to lots of which a preference of entry was sought, according to the act of 1829; they had power conferred on them to administer oaths and take evidence, and were directed to reduce it to writing, in support of claims to pre-emptions presented for consideration; and, when all the testimony was heard and considered, they were to file with the register and receiver the whole testimony in the case, (that is, in all instances,) together with a certificate in favor of each person having the right of pre emption; and on payment being made to the receiver by the person ascertained to be entitled, the register was ordered to issue a certificate of purchase to him to whom the right of pre-emption had been adjudged; and the remaining lots were to be exposed to public sale.

It was the political power that was dealing with this property. Congress could award it either for a consideration, or confer it on any one that they desired should have it. The awards were made through a tribunal exercising the political power, and whose adjudications were conclusive of the right to pur- [* 303 ] chase; nor had the courts of justice any jurisdiction to interfere.

Phelps did not come forward and prefer a claim to have a preemption allowed, and if Morehouse had not acquired this right, the land would have been sold at auction; Phelps would have then stood in the situation of all others claiming preferences of entry throughout the public domain, who fail to prove up their claims before the register and receiver, and permit the land to be sold at the public sales. He abandoned his preference, and allowed it to be forfeited-even conceding its original validity.

ents.

2. If Phelps has a legal title, he took it by the terms of the patThe patent for No. 9 recites, that the legal representatives of Robert P. Guyard and Dickerson B. Morehouse had deposited in the general land office the register's certificate at the land office at Galena; that full payment had been made, by said legal representatives above named, for lot No. 9, (the boundary of which is described,) and which lot had been purchased by said representatives of Guyard and Morehouse; and, in consideration of the premises, the United States have given and granted, and do give and grant, "unto the said representatives of Guyard and Morehouse, and to their heirs, the said lot above described; to have and to hold, unto the said representatives, and their heirs and assigns, forever, as tenants in common." The patent for lot No. 8 is in the

same terms.

For the purpose of explaining who the grantees are, and that they were the purchasers, extrinsic proof was introduced in the

Morehouse v. Phelps. "

State circuit court, to the end of establishing the fact that Morehouse, as administrator of Guyard, and on his own behalf, proved the joint occupancy of lots 8 and 9 before the commissioners appointed to grant certificates of pre-emption under the act of 1836; that Morehouse obtained certificates of pre-emption, filed them with the register, paid the purchase-money to the receiver of the land office at Galena, took out his patent certificates, presented them at the general land office, and received the patents. The deed to Phelps was produced and recorded at Galena, June 18, 1847. Morehouse obtained his pre-emption certificates [304] for lots Nos. 8 and 9, paid his money *for them, and got his patent certificate February 20, 1838, and on the 1st day of January, 1846, the patents issued.

We feel confident, from the face of the patents, that they were made for the benefit of those who obtained the certificate of preemption, and paid for the land. Such, in our judgment, is the fair construction of the patents, and of the second section of the act of 1836, on which they are founded. The patents, throughout, refer to those who bring the claim before the board, obtain the right of entry, pay the purchase-money, and enter the land.

It was the duty of Morehouse, as administrator of Guyard, to make payment for the moiety of the lots Nos. 8 and 9, on behalf of the estate of Guyard, out of the personal property in the administrator's hands. (Revised Statutes of Illinois, title Wills, sec. 107; adopted in 1836.)

And by the 98th and 99th sections of said title, the administrator was empowered to convert the lands into personal assets for the payment of debts; the personal estate having proved insufficient.

The capacity of Morehouse to cause the entry to be made, depends on State laws, with which we have no power to deal in the present writ of error, further than to ascertain from them that Morehouse was, in his capacity of administrator, "the legal representative" of Guyard; and such we think he was, and that the patents are technically accurate.

As Phelps was plaintiff in the ejectment suit, and Morehouse in possession, it was imposed on Phelps to show a valid legal title to authorize a recovery of the land by him; and having no such title, Morehouse's possession was sufficient for his protection.

The decisions referred to on behalf of the defendant in error, where Spanish claims had been confirmed, and where the United States gave an additional sanction to an incipient title existing when we acquired Louisiana, do not apply. In those cases, titles which were undoubtedly private property, that could be alienated,

Brown v. Huger.

and which descended, were examined, and their validity ascertained; and when found meritorious, ordered to be defined by survey; and a United States patent was in most [* 305 ] cases ordered to be issued. But this did not defeat outstanding interests in the land for which the patent issued; as was held in the cases of Stoddart v. Chambers, Russell v. Penrose, and Landes v. Brant. The patent covered the whole title; at least from the time it was asserted before a board of commissioners appointed by congress to investigate the claim; and the patent inured to the protection of alienees and heirs. The United States government was bound to protect existing interests in the lands acquired by the United States from France, by the treaty of 1803.

Here, however, a very different claim to the lands in the town of Galena is set up. The government was the absolute owner; congress might have repealed the acts of 1829 and 1836, at any time before actual purchases were made by those claiming a preference to enter, and the lands have been sold at auction. Up to the date of the entry and purchase, the title was in the United States; behind which date the courts of justice can uphold no deed of conveyance of the public lands, unless congress has authorized assignments of occupant claims to be made; and as the acts of 1829 and 1836 awarded the preference of entry to the claimant who applied, and obtained, the favorable decision of the board of commissioners, no inquiry can be made into the dealings between Phelps and Guyard.

It is ordered that the judgment of the supreme court of Illinois be reversed, and that the cause be remanded, to be proceeded in according to this opinion.

JACOB B. BROWN and others, Plaintiffs in Error, v. BENJAMIN HUGER.

21 H. 305.

LAND TITLES-PATENTS AND SURVEY-COURT AND JURY.

1. The fact that a grant was made to Robert Harper, as a location and survey, made in the name of James Nickols, does not affect the validity of the patent.

2. In ascertaining the boundary lines of a patent or grant, where natural objects are given which conflict with the courses and distances given, the uniform rule is that the former must prevail.

3. In such case, the construction of the instrument is matter of law for the court, and is not to be submitted on all the evidence as a fact to be found by the jury.

4. Where a river or rivers is given as one of the boundaries, the grant extends to the river and follows its course.