On the facts as presented by the record in this case, there are two questions for our consideration, to wit: First— *501Whether or not, by the special Act of March 3d, 1863, Congress intended to confer upon the purchasers from Vallejo a prior right to acquire by pre-emption the title to the lands so purchased, (and which had been reduced to possession when the claim of Vallejo was rejected by the Supreme Court,) to the exclusion of other qualified pre-emptioners who had settled upon the land after the rejection of Vallejo’s claim, but before the passage of the special Act in question, and were in good faith performing the acts necessary to perfect their pre-emption claims. Second—If such was the intent of the Act, was it competent for Congress thus to set aside and annul the claims of the first pre-emptioner and to confer on the purchasers from Vallejo a prior right to enter the land? On the first point I entertain no doubt whatever. When construed in the light of the surrounding facts, the Act of March 3d, 1863, is not open to cavil on this point. Congress obviously considered the purchasers from Vallejo as having the best right and prior equities, and as entitled to priority over all other pre-emptioners, without reference to the date of settlement. Indeed, it was the chief purpose of the Act to secure this priority, and at the same time to enlarge the quantity which might be pre-empted, in certain cases, beyond the usual limit of one hundred and sixty acres. I deem it unnecessary to enter into an elaborate discussion of this point, which, in my opinion, is too plain to admit of serious debate.
The second question for our decision is not only more difficult of solution, but is one of unusual gravity and of great practical importance. It involves a consideration of the relations which are established between a qualified preemptioner and the Government, after the former has entered upon a portion of the public domain, which is subject to pre-emption, and is proceeding in good faith to perform the conditions which, by law, will establish his right to pre-empt the land.
This question has been several times decided by this Court in actions growing out of the special proceedings which have *502been had in respect to the title to the Soscol Rancho. On every occasion when the question has been before this Court, it has been held that the pre-emptioner acquired no proprietary interest in the land, which was capable of enforcement either at law or in equity, as against the Government or its grantee, until the purchase money was paid or tendered, and that until such payment or tender, the power of the Government over the title remained wholly unimpaired, and it might disregard altogether the claim of the pre-emption claimant and award the land to another. (Hastings v. McGoogin, 27 Cal. 85; Page v. Hobbs, 27 Cal. 487; Page v. Fowler, 28 Cal. 609; People v. Shearer, 30 Cal. 650.)
The same views have been expressed by Attorney General Cushing, (8 Opins. Attorneys General, 72,) and by Attorney General Bates, (10 Opins. Attorneys General, 56,) and by Attorney General Speed (11 Opins. Attorneys General, 490.) The Supreme Court of Missouri, in several cases, has acquiesced in this view of the law. (Bower v. Higbee, 9 Mo. 259; O’Hanlon v. Perry, 9 Mo. 804.) The Supreme Court of the United States, in dealing with inceptive titles under the preemption laws, has intimated in several cases that until the pre-emptioner has not only performed the conditions required by law, but has obtained the certificate of the proper officers of the Land Department to that effect, he has no title which a Court of justice will recognize; that this is the only evidence of that fact which is admissible to establish even an equity in the claimant, and until he obtains the certificate he has no standing in Court.
In Hale v. Gaines, 22 How. 144, the plaintiff claimed under the alleged pre-emption right of one Percival, who settled on the land in 1812, but took no steps toward entering it until after the land was reserved from sale by an Act of Congréss passed in 1832. In commenting on this claim (page 161) the Court says: “When the Act of April, 1832, was passed, reserving the hot springs from sale, .Percival had no vested interest in the land that a Court of justice could recognize. Then the United States Government was the *503legal owner, and had the power to reserve it from sale; so that the offer to purchase in 1851, under the assumed preference to entry claimed for Percival, was inadmissible. Had the entry been allowed in face of the Act of Congress, such proceeding would have been merely void.”
In deference to these authorities I acquiesce in the conclusion at which the Chief Justice has arrived, notwithstanding the fact that the reasoning by which the conclusion is reached appears to me to be altogether unsatisfactory. 1 yield to the weight of authority only, and not to the reasoning by which it is supported. But it has almost grown inte an axiom in the law that a long established error is often less pernicious than the change which would be necessary tc correct it; and the rule of stare decisis should not be often or lightly departed from.
It is entitled to especial weight in all questions affecting the titles to real estate, and particularly in a new country, which is rapidly improving, and where large sums are being constantly invested in lands and buildings. The question now uuder consideration was first decided by this Court in the case of Hastings v. McGoogin, at the October Term, 1864. and again in Page v. Hobbs, at the January Term, 1865, and in Page v. Fowler, at the October Term, 1865. In all these cases the question arose uuder contests growing out of conflicting claims to portions of the Soscol Pancho. We know as a part of the current history of the times that there are several considerable towns on this rancho-, one of which (Vallejo) is rapidly improving, and has become a point of considerable commercial importance; that a railroad from Sacramento to Vallejo now traverses this rancho, which is situate in one of the most rapidly improving portions of the State. It cannot be doubted that large sums have been invested in lands and buildings on this tract on the faith of the decisions to which I have adverted. They-should therefore be considered as having become a rule of property in respect to that rancho. In this view of the case I yield to their authority, and acquiesce in the conclusion to which the *504Chief Justice has arrived. The same question was elaborately discussed and the same conclusion reached in the case of People v. Shearer, 30 Cal. 645, decided at the October Term, 1866. But the question involved is of great public interest, and believing that this Court has established it on a wrong basis, I propose to state the reasons for this opinion.
It cannot be successfully controverted, I think, that the pre-emptioner belongs to a favored class of purchasers; that he enters on the invitation of the Government with an assurance that on the performance of certain conditions and on the payment of a specified sum of money he shall receive a title to the land; that after he has entered and has expended his money and labor in improving the land, and is proceeding in good faith to fulfill the conditions, he has acquired an equity which, in sound morals and by the rules of law, the Government is bound to respect, and which Courts of equity will enforce, as against a subsequent grantee of the Government who wrongfully acquires the legal title.
On the other hand, it is contended that a pre-emptioner is but a pensioner on the bounty of the Government; that he acquires no title, either legal or equitable, until he has actually paid for the land; that even though he has performed all the other conditions, and as the final act tenders payment of the purchase money, the Government is not bound to accept it; but may repudiate his claim and sell the land to another, who will thereby acquire a valid title, charged with no equities in favor of the pre-emptioner; that there is nothing in the nature of a contract between the Government and the pre-emptioner who enters with notice that the Government reserves the right to withhold the title from him and confer it on another, and at the last moment to decline to accept payment from him, even though he has performed all the other conditions prescribed by law. This last proposition is urged chiefly on the theory that, inasmuch as the preemptioner is under no obligation, either legal or moral, to perfect his claim and pay the purchase money, the Govern*505ment has the correlative right at any time before payment to withhold the title and disregard the pre-emption claim.
If it be assumed that the relative rights of the pre-emptioner and the Government are to be tested by the rules strictly applicable to contracts, in their legal sense, between private individuals, it is doubtless true that until performance and payment there is no executed contract. In all cases where the rights of a party are to depend on the performance of conditions precedent, the right is not complete until the conditions are performed. ¡Nevertheless, it would not be accurate to say that the party, whilst faithfully engaged in performing the conditions, had acquired no rights in the subject matter of the contract. On the contrary, so long as he is in no default he has acquired the right to compel the other party to the agreement not to obstruct him in the performance of the conditions, and, after a full performance of them, to comply with the other side of the contract. But, it is said that, until the purchase money is paid, there is no contract between the pre-emptioner and the Government; that there is nothing obligatory on either side until the land is paid for; that the pre-emptioner may abandon his claim at the last moment; and, in like manner, the Government may withdraw its offer, even after payment is tendered and all the other conditions are performed. In matters of contract the Government stands upon the same footing as a private individual. Whatever would constitute a contract between two private individuals would be equally a contract if the Government was a party to it. If the relations between the pre-emptioner and the Government do not constitute a contract in any just or legal sense, the same result would follow if the same relations existed between two private persons. For example, if that which is now the public domain was the property of a private person, some great landed proprietor, who desired to have his vast estate cut up into small farms, improved, settled upon, and cultivated, and to that end should proclaim in the most solemn manner that if any *506citizen over twenty-one years old, and the head of a family, would settle upon a tract not exceeding one hundred and sixty acres, erect a dwelling house, cultivate the land, and pay one dollar and twenty-five cents per acre for it, he should receive a deed for the tract so occupied, the proprietor of this large estate would occupy towards those who should accept his offer precisely the same relation which exists between the Government and the pre-emptioner. Would this constitute a contract between them? If a citizen, properly qualified, and relying on the promise and good faith of the owner, should select a tract of one hundred and sixty acres, enter upon it, fence it, - erect his dwelling, plant his orchard, and in due time offer to pay the stipulated price, could the proprietor at the last moment repudiate the whole transaction, oust his confiding victim from the possession, confiscate his improvements, refuse to accept the purchase money, and convey the title to a stranger, with notice of the equities of the former occupant, all on the ground that there was no contract between them ? To hold that there was no remedy in such a case and that the title passed to a second purchaser, discharged from the equities of .the first, would shock our moral sense and bring a just reproach upon the law. But the law is fertile in resources to meet such a case as that supposed. The injured party could either maintain a personal action for a breach of the contract, or a bill in equity for a specific performance of it; and it would be no answer to such a bill to say there was no contract, or that it lacked mutuality, because the plaintiff was under no obligation to perform the conditions, and incurred no penalty if he failed to perform them. The same principle pervades a large class of cases. If a reward be offered for the recovery of stolen property, no one is under obligation to seek for the property in order to earn the reward. But if any one sees fit to do it, and restores the property, the contract becomes operative, and he can maintain an action on it for the reward. If a premium is offered for the best steam engine, to be delivered within a specified time, no one is bound to compete *507for the premium; but if a mechanic, relying on the promise, expends his labor and moneyin the production of a model' engine, and is ready to deliver it within the appointed time, it would be too late to withdraw the offer when the work was on the eve of completion. So if the owner of a mine offers to pay a given sum to any one who will sink a shaft on it to a specified depth within a given period, it would not be in his power to withdraw the offer when the shaft was sunk to a point within six inches of the required depth. The general principle which pervades all this class of cases is, that if a person by his words or conduct induces another to expend his labor or money in the achievement of a particular work, on the promise of payment when the conditions are fulfilled, the promise becomes obligatory as soon as the work is entered upon and is prosecuted in good faith. Though the offer was general, and made to the whole world, yet when a particular person accepts it and enters upon the performance of the conditions in good faith, it thenceforth becomes, in law, a specific promise to that person, and is to every intent as obligatory as if made to him in person and in express terms. Nov is the promise void for want of considerations. On the contrary, it has all the elements of a valuable consideration, to wit: a benefit to the party who promises, in case the work is performed, and an injury to the other party, who expends his money and labor in performing the conditions. The term “mutuality,” in its strict legal sense, has no application to promises of this character whilst the conditions are being performed. Before the performance is commenced-, the promise is not obligatory, and may be withdrawn. It was but a mere offer, not accepted, and supported by no valuable consideration. But when the offer is accepted and the performance is commenced in good faith, the conditions are thenceforth changed. That which before was a voluntary offer, without consideration, has become by the mere force of the acceptance, and by a part performance in good faith of the conditions, an obligatory promise founded on a valuable consideration; and on a full *508performance of the conditions, the promise, which before was conditional, will have become absolute and of perfect obligation in law. If the conditions to be performed be of a personal nature, not affecting the title to real estate, the remedy for a breach of the promise would be an action for damages, or such other personal action as the exigency of the case might require. But if the promise be to convey real estate, on the performance of the conditions, a bill for specific performance would lie.
I have adverted to these general propositions, not because they are either novel or difficult of solution, but, on the contrary, because they embody only familiar and well settled principles, which, I apprehend, will not be questioned. I propose now to inquire to what extent, if at all, these principles are applicable to the relation existing between the pre-emptioner and the Government.
It is said, and this Court has intimated in several cases, that the right of pre-emption, secured to the settler by the general pre-emption law of 1841, is in "the nature of a bounty voluntarily offered by the Government to its citizens, and may be withdrawn at any time before the purchase money is paid; and that until payment is made, the pre-emptioner has acquired no proprietary interest in the land which is capable of enforcement either at law or in equity. In the solution of this question, it must be borne in mind that the Government is simply the owner in fee of the public domain, with a plenary power to manage, control or dispose of it as it sees fit. It holds it in trust, it is true, for the people, whose agent and trustee the Government is, but with plenary power as to its control and disposition. In dealing with purchasers, touching the sale of its domain, the Government is only a great landed proprietor, holding immense bodies of wild land, which the public interest demands should either be sold for the best price it will bring, or awarded to actual settlers at a very low price. The latter has been for many years a favorite policy with the Government. It was deemed advisable to sell the lands to *509actual settlers at a low price, and thus promote the rapid expansion of our national wealth and the speedy development of our agricultural resources, rather than to sell, for a higher price, to speculators, who would or might keep it out of the market, and thus greatly retard the growth of the country. But it is a flagrant perversion of terms to say that the pre-emption right, secured by law to the actual settler, is in any just sense a “bounty,” if by that term it is intended to be implied that it is a mere gratuity, and for that reason may be withdrawn after acceptance. That it is in no sense a gratuity, is proved by the fact that the pre-emptioner is not only required to expend his money and labor on the land, thereby enhancing the value of the coterminous lands, and adding to the taxable property from which the revenues of the Government may be derived, but he is also required to pay a consideration in money before his right to the lands becomes complete. A transaction of this character, whatever else it may be, is in no sense a gratuity; and if it be in any respect a “bounty,” it is only so in the sense of a liberal compensation for services rendered and money paid by the other party to the agreement.- It may more aptly be styled a liberal contract, by which the Government agrees that if the settler will perform certain acts tending to promote the public good, and will pay a certain moderate sum of money, he shall receive the title to a specified parcel of land. The Government, on its part, makes the contract through the medium of general laws, as it is competent to do. It is well settled that contracts obligatory on the Government may be thus made. But it might also contract through special laws, or general or special agents duly authorized. Ho one will deny that instead of seeking to accomplish the result by means of general laws, Congress might have authorized the Commissioner of the General Land Office or the Registers and Receivers in the several districts to enter into a written contract with each individual pre-emptioner, to the effect that if the latter -would erect a dwelling house on a specified parcel of land, and reside on it with his family, and at the *510expiration of twelve months would pay a stipulated .sum for it, he should receive a patent for it. If the Commissioner of the General Land Office, acting under a special authority of this nature, had entered into a written contract with the plaintiff in this action, to the effect that if he would enter on the quarter section in contest, erect a dwelling house on it, cultivate and improve it, and within a specified time would pay for it at the rate of one dollar and twenty-five cents per acre, and if the plaintiff had accordingly entered on the land, erected his dwelling, and was proceeding in good faith to perform the other conditions, can any one doubt that the Government would have been bound, both in law and morals, to fulfill its obligation ? If it had commenced an action of ejectment against the plaintiff-to recover the possession, it would have been a complete answer to the action to set out the contract, and aver that the defendant was proceeding in good faith to perform it on his part. If the Government, in disregard of its obligation, whilst the plaintiff was in the actual performance of the conditions, had conveyed the land to another, and thereby attempted to confiscate the improvements already erected, could such a transaction be properly characterized, in any just sense, as merely a withdrawal by the Government of a proffered “bounty” to the plaintiff? Would it not be an abuse of language to term it a simple revocation of a gratuity voluntarily offered, and having none of the elements of a contract? On the contrary, if such a transaction had occurred between private persons, I apprehend no one would deny its validity or that it could be enforced in a Court of equity. If the Government be one of the parties to the contract, I can imagine no reason why it is, for that cause, less obligatory. The remedy for enforcing it may be different, inasmuch as the Government cannot be sued in its own Courts to compel a specific performance of its contracts. But that is a question pertaining to the remedy, and not to the obligatory force of the contract.
My conclusion is, that if the Government, through its duly authorized agent, had entered into an express covenant to *511the plaintiff touching this land, embodying therein the sub stance of the pre-emption laws, it would have been obligatory on the Government, so long as the plaintiff was in no default in performing the conditions. Uor do I perceive that the plaintiff’s condition is worse because there was no express covenant, except such as results from the pre-emption laws, and the commencement to perform in good faith the conditions which they impose. It is unquestionably competent for the Government to contract, either by means of general or special laws dealing directly with the subject matter, or by delegating its authority to specified officers or agents. In the former case, the subject matter of the contract and the rights and obligations of the parties are defined in the Act itself. An example of this species of contract may be found in the laws offering pay or bounties to soldiers or seamen who enlist in the service. When the conditions are performed the contract becomes complete by operation of law, and is as obligatory on the Government as if there had been a prior express contract with the party in person. But the law regulating pre-emption rights is, perhaps, as striking an illustration as could be found of this species of contract. The law defines with the utmost precision what class of citizens shall be entitled to its benefits, and what acts they shall perform; limits the quantity of land to be purchased; prescribes in what manner and before what officers proof is to be made of the performance of the conditions; and expressly provides that, on making such proof and paying the purchase money, a patent conveying the title shall issue. When the conditions are performed and the purchase money paid, the contract is completely executed by the pre-emptioner; and it is conceded on all sides that he thereby has acquired a complete equity—a vested interest in the land which it is not in the power of the Government to take away; and if the proper officer of the Government refuses to issue the patent, he can be compelled to do so by the compulsory process of the law. But it is claimed that, even though all the other conditions have been performed, *512and the pre-emptioner is ready and willing and offers to pay the purchase money, the Government may refuse to accept it, repudiate the whole transaction, oust him from the possession, confiscate his improvements, and convey the land to another, who takes the title with notice of all that has transpired, and who will hold it, discharged from the equities of the pre-emptioner. I am unable to appreciate the force of the reasoning by which it is sought to sustain this proposition. If the pre-emptioner has done all that the law required of him, except to pay the purchase money, and if he was and is ready and willing to pay it in proper time, but is prevented from doing so only by the act of the Government or its authorized agents, I do- not comprehend on what principle of law or equity, reason or justice, his right should be deemed less complete or his title less secure than if he had- actually paid it. An offer to perform conditions precedent in the proper time and manner, is always deemed equivalent to performance in Courts of equity; and if performance be prevented by the act of the other party to th.e contract, the failure to perform in the prescribed method, or within the appointed .time, is excused. The precise point under discussion has been decided by the Supreme Court of the United States in the case of Lytle v. The State of Arkansas, 9 How. 333, in which the Court says:
“It is a well established jarincrple that where an individual in the prosecution of a right does everything which the law requires him to do, and he fails to attain his right by the misconduct or neglect of a public officer, the law will protect him. In this case the pre-emption right of Cloyes having been proved, and an offer to pay the money for the land claimed by him, under the Act of 1830, nothing more could be done by him, and nothing more could be required of him, under that Act. And subsequently, when he paid the money to the Receiver, under subsequent Acts, the surveys being returned, he could do nothing more than offer to enter the lands, which the Register would not permit him to do. This *513claim of pre-emption stands before us in á light not less favorable than it would have stood if Cloyes, or his representatives, had been permitted by the land officers to do what, in this respect, was offered to be done.”
In the case at bar, before the time for payment had arrived, and, indeed, before payment was possiblé, Congress, by the Act of March 3d, 1863, attempted to deprive "the plaintiff of the equity ho had acquired by a part performance of the conditions, and to award to the defendants a prior right to purchase the lands. The plaintiff has been in no default, and has done all that the Government would permit him to do toward performing every act, including payment, required of him by the law under which he entered. If he has been prevented by the Government from making a complete performance, the omission is excused, and the equity is as complete as a full performance would have made it. The fact of payment or the omission to pay, tinder the conditions stated, is wholly immaterial, and in no degree impairs the plaintiff’s equities. If Congress can defeat the title by refusing to accept the purchase money when tendered, or by placing it out of the power of the party to perform the remaining conditions, I can imagine no reason why it could not annul his claim after accepting the purchase money, and it is conceded this could not be done. But it can do neither, and for the same reason. After a full performance of the conditions, it is admitted the plaintiff’s equity would have been complete and beyond the "reach of hostile legislation. After a partial performance, if he was hindered by the act of the Government and: without any fault of his from performing the remaining conditions, the non-pérformance is excused for the reasons already stated; and his equity is as secure from invasion as though all the conditions, including payment, had been performed.
It is said, however, that great evils will result from this 3onstruction of the law; that it will deprive Congress of all *514control over such portions of the public domain as shall already have been occupied by pre-emptioners; that a tract thus occupied could not thereafter be reserved from sale, even though it were needed for a lighthouse or fortification, and however urgent the necessity for such an appropriation of it. I think the inconvenience anticipated from this source is in a great degree imaginary.
But, if it be otherwise, a simple remedy for it may be found in the future by an amendment of the law, reserving to the Government the right to cancel a pre-emption claim when the land is needed for public use. This would become a part of the contract, and would completely remedy the supposed inconvenience; but, if the inconvenience to result from my construction of the law were even greater than it is supposed to be, it would still be insignificant in comparison with the greater evil of permitting the Government to violate its engagements to its citizens. The stability of all republican government rests upon the confidence of the people in its fidelity to its pledges; and it is the duty of the Courts, as far as practicable, to promote this confidence by exacting from the Government, in all cases which come before the judicial tribunals, a faithful performance of its contracts.
I have thus far discussed the grave question under consideration upon such general well known principles of law as I have deemed pertinent to the subject. But there are, also, some authorities to support the views I have indicated. That a pre-emption claim, whilst the proceedings to perfect it are in fieri, is recognized by the Government as property, is established by the second section of the Act of March 3d, 1843, (5 Stats, at Large, 620,) which provides that if the preemptioner shall die whilst the conditions are being performed his claim may be perfected by the heir at law, to whom the patent shall issue. That he is not a trespasser, but, on the contrary, that he enters and expends his money and labor on the land, on the invitation of the Government, and on the assurance that he will acquire the title by the performance *515of the conditions, is apparent from the whole spirit and theory of the pre-emption system. That the right which he acquires by his entry, and by commencing in good faith to perform the conditions, is a substantial right, which the Government is bound to respect, and which the law will protect so long as he is in no default, appears to be established by the case of Lytle v. The State of Arkansas, 9 How. 333, in which the Court say: “The claim of a pre-emption is not that shadowy right which by some it is considered to be. Until sanctioned by law, it has no existence as a substantive right. But when covered by the law it becomes a legal right, subject to be defeated only by a failure to perform the conditions annexed to it. It is founded in an enlightened public policy, rendered necessary by the enterprise of our citizens. The adventurous pioneer, who is found in advance of our settlements, encounters many hardships and not unfrequently dangers from savage incursions. He is generally poor, and it is fit that his enterprise should be rewarded by the privilege of purchasing the favorite spot selected by him, not to exceed one hundred and sixty acres.” By the term “ covered by the law,” as here employed, the Court evidently intends to say that when the pre-emption claim is being perfected in the method prescribed by the statute, “it becomes a legal right, subject to be defeated only by a failure to perform the conditions annexed to it.” In referring to the previous case of Brown’s Lessee v. Clement, 3 How. 666, the Court says: “The Act of 29th May, 1830, appropriated the quarter section of land in question, on which Etheridge was then settled, to his claim, under the Act, for one year, subject, however, to be defeated by his failure to comply with its provisions. During that time this quarter section was not liable to any other claim.” Again, in referring to the claim of Cloyes, the pre-emptioner, whose rights were under discussion in that case, the Court says: “By the grant to Arkansas, Congress could not have intended to impair vested rights.” Cloyea, the pre-emptioner, had performed the other conditions, but had not paid the purchase money; and yet the *516Court deems him to have acquired a “vested” right in the land, of which he could not be deprived except by his own default.
In the subsequent case of Barnard’s Heirs v. Ashley’s Heirs, 18 How. 43, the Court say:
“In Lytle’s Case we declared that the occupant was wrongfully deprived of his lawful rights of entry under the preemption laws, and the title set up under the selection of the Governor of Arkansas was decreed to Cloyes, the claimant, this Court holding his claim to the land to have been a legal right, by virtue of the occupancy and cultivation, subject to be defeated only by a failure to perform the conditions of making proof and tendering the purchase money. There the facts were examined to ascertain which party had the better right.”
This language admits of no doubtful interpretation. If Cloyes obtained .“a legal right by virtue of the occupancy and cultivation” prior to payment, why did not the plaintiff in this action obtain a “legal right” under the same circumstances? The cases appear to me to be strictly analogous.
In McAfee v. Keirn, 7 S. & M., Miss., 780, Mr. Justice Sharkey, who delivered the opinion of the Court, defines with clearness and force the nature and legal effect of a preemption right. He says: “We cannot question the right of Congress to confer this privilege on the actual settler, and the fact that it was a gratuity makes no difference—the right is as valid as though it had been founded on a valuable consideration. It amounted to something more than a mere right to enter the land at Government price; that right every citizen had, and if the Act of Congress did no more, it was useless. But it did more; it gave a preference to the actual settler, the effect of which was to exclude the right of all others so long as this preference could be claimed. * * *
This right of pre-emption, then, constituted an equity in favor of the occupant. Hot an uncertain, indefinite equity; *517it was located and identified; it attached to the particular quarter section occupied and cultivated by the claimant. The Act of Congress was an appropriation of all land so occupied. This equity might be lost, of course, by a failure to make the entry within the prescribed time, but during the whole of that time the occupant had the right to make the entry at the minimum price to the exclusion of all other entries. * * * Equity looks to the incipient right, and couples to it the perfect title, and in a Court of equity the person who has first appropriated the land has the best title.”
In Isaacs v. Steel, 3 Scammon, 97, in commenting on the time allowed by law to the pre-emptioner to make his proofs and pay the purchase money, the Court says that “to protect them from the rapacity of those who might desire to appropriate their soil and labor to themselves, one and two years of time was granted them. The settler was thus made secure in his possession for that time; and if, before its expiration, he made the required proof and paid the money, he acquired a right against all the world.” (See, also, Bruner v. Manlove, 3 Scam. 340.) It would be an abuse of terms to say that the settler was “made secure in his possession,” if, at the last moment, after he had expended his money and labor on the land, and when he was proffering payment for it, Congress could annul his claim, deprive him of the possession, and grant the land to another.
In the case of Whitney v. Frisbie, which involved precisely the same questions which ai’ise in this case, the Supreme Court of the District of Columbia has recently decided them, explicitly, in accordance with the views above set forth.
For these reasons I cannot but conclude that the former decisions of this Court on this point are at variance with the principles of reason and equity. Nevertheless, so far as they affect the title to the Soscol Eancho, the question has been so often decided during the last five years, and such important interests have grown up on the faith of these decisions, that I think they are justly to be regarded as a rule of property in respect to that rancho, and ought not to be disturbed.