It may be conceded, for the purposes of this opinion, that a patent which issues for lands which are reserved from sale, is void, and may be so declared in a proper case, either in chancery or at law. — See Stephens v. Westwood, 20 Ala. 275-8; Ladiga v. Rowland, 2 How. Sup. Ct. U. S. 581; Crommelin v. Minter, 9 Ala. 594; Saltmarsh v. Crommelin, 24 Ala. 347; Stoddard v. Cham*45bers, 2 How. U. S. 317; Hit-tuk-ho-mi v. Watts, 7 Sm. & Mar. 363-6; Gonzalees v. Hoover, 6 Serg. & R. 118; Gingrish v. Foltz, 19 Penn. 38, 41; Wright v. Rutgers, 14 Missouri, 585.
The land in controversy in this suit was ordered into market, and sold, under the authority conferred on the commissioner of the general land-office, by the act of congress of Aug. 3d, 1846. — 9 Statutes at Large, 51-2. Uy that statute, the commissioner was authorized to order into market, after due notice, and without the formality and expense of a proclamation of the president, all lands of a certain class — this being within the class— which, in his judgment, it would be proper to expose to sale. Under this statute, the commissioner of the general land-office instructed the land-officers at Montgomery to offer said lands at public sale, if, after a careful examination of the books and maps in their offices, there, appeared on them no objection to offering said iands for sale. They offered these lands for sale, and no person purchasing them at said public offer, the plaintiff in this suit, some two or three years afterwards, purchased them at private sale, and, obtaining the patent of the general government, instil uted this suit against the defendant to recover the possession.
it is contended for appellant, that this sale. is. void, because the commissioner of the general laud-office did not himself order the lands into market, without referring any question to the land-officers at Montgomery. From anything that appears in the present record, we can not learn that there was in the land-office in Montgomery any evidence which showed that said lands should not be offered for sale, except the letters I. JR. marked on the map of said section. These letters, I. JR., it is shown, when employed as in this case, are the initials of Indian Reservation, and,- unexplained, denote that the lauds thus marked are covered by locations to heads of Indian families, under the Creek treaty of 1832. It is manifest that the marking of, these letters, I. R., on the entire section 32, 10,- 29, • was the result of mistake; and as to the lands in controversy in the. present suit, it does *46not appear that, “ on a careful examination of the books and maps in the land-office at Montgomery, there appeared on them any objection to offering said lands for sale.” Under these circumstances, from any thing which appears to us, the commissioner of the general land-office, so far as evidence was afforded by the books and maps in the land-office at Montgomery, was authorized to order the said lands into market, absolutely and unconditionally. Having the absolute right to order the sale, it certainly' cannot vitiate the title that he exercised greater circumspection than the law required at his hands. The legal import of his order was, In my judgment, these lands should be ordered into market, and I direct you to offer them. If, hoioever, on a careful examination of the books and maps in your office, you discover any sufficient cause for withholding the sale, then you are instructed not to put them into market.
But there is another answer to this objection, which wo think full and complete. It will be observed that, under the act of congress of Aug. 3d, 1846, the question of sale vel non, was confided to the judgment — discretion — of the commissioner of the genei’al land-office. No limits were prescribed to the exercise of his judgment or discretion. He was made the sole judge of the propriety of a sale, and no rules, or mode of ascertaining the existence of the facts, were prescribed for him. The ease is within the rule which declares, that where an officer is clothed with authority to do an act upon certain exigencies, and no rule is laid down for ascertaining that the exigency has arisen, the doing or performance of the act by the officer is evidence that the exigency exists. Martin v. Mott, 12 Wheat. 19; Vanderheyden v. Young, 11 Johns. 150; Stuyvesant v. Mayor &c. of New York, 7 Cow. 588.
[2.] What we have said above is applicable to this ease as made by the plaintiff’s title, and the acts of the land-officers which led to the sale. It does not reach the question of the pre-emption right as claimed by the Nolans. The bill of exceptions recites, that one of the Nolans lived on and cultivated the cast half of the south*47west quarter of section 32, township 10, range 29, during the years 1833 and 1834; and that he was so occupying and cultivating said half quarter-section, when the aet of congress of June 19th, 1834, was passed. — 4 Stat. at Largo, 678. That aet revived the pre-emption act of May 29th, 1830, and continued it in force for two years from June. 19th, '1834. The bill of exceptions further recites, that Nolan, within the time prescribed by law, offered to make to the land-officers at Montgomery proof of his cultivation of said land in 1833, and occupation on June 19th, 1834; that he offered to pay the entry-money, and that.the land-officers refused to receive the proof or the money, because the land stood in their offices as an Indian reserve. The bill of exceptions does not inform us that any offer was made to enter any of the lands involved in this suit, except the said east half of the southwest quarter of section 32. Said Nolans, about the last of the year 1834,' sold their said pre-emption claims to one Howard, who paid them a valuable consideration, and the same year took possession, claiming the lands as his own; and he continued in possession until he sold to McTyer, in 1849, since which time McTyer has held possession of the lands under said purchase. McTyer, when he purchased from Howard, received from him a bond to make title, and holds possession under claim of right. Under his possession and claim thus acquired, it is contended that plaintiff’ can not recover in this suit.
It is not pretended that Nolan, or any one claiming under him, has ever received any patent, or other evidence' of title, from the federal government. This being the case, under the act of congress of ,29th May, 1830, (4 Stat. at Large, 421,) the sale by Nolan to Howard, in 1834, was inoperative and -v-oid as a transfer of Nolan's right óf preemption. — See last clause of § 3. If,'then, there existed in any one a right to enter, by. pre-emption, said land at the minimum government price, that right was in Nolan, and uras not transferred either to Howard or McTyer, because the right to enter could not be transferred. Whether, under the statutes of 1830 and 1834, the abandonment of ■the possession by Nolan, and the sale by-him to Howard *48of all that was- vendible in his claim to said land — viz., his right as.against other-private persons-to occupy — was a surrender-of his right to enter the land as a pre-omptor under the acts of congress of 1830 -and 1834, we need not inquire.. That question is not presented ’by this record..
The nature, extent and value of the right or claim conferred-by the pre-emption statutes on actual settlers on the public lands, is a question upon which the adjudged cases do not agree. In some, it is held to be more than-a mere privilege. — See Lyttle v. Arkansas, 9 How. U. S. 315-33; Cunningham v. Ashley, 14 ib. 377, 383, et seq. ; McAfee v. Keim, 7 Sm. & Mar. 780; Threadgill v. Pintard, 12 How. U. S. 24; Gingrish v. Foltz, 19 Penn. 38; March v. Gonsoulin, 16 La. 84; U. S. v. Fitzgerald, 15 Pet. 407; Perry v. O’Hanlan, 11 Mo. 385; Glanton v. Anthony, 15 Ark. 543; Wynn v. Morris, 16 ib. 414; U. S. v. Stanley, 6 McL. 409 ; Griffith v. Deerfelt, 17 Mo. 31. See, also, Glenn v. Thistle, 23 Miss. 42; Nelson v. Sims, ib. 383; Wright v. Rutgers, 14 Mo. 585; 12 ib. 333. On the other hand, there are many authorities which hold, that the settler or pre-emptioner has no title which he can sell or incumber. — Craig v. Tappin, 2 Sandf. Ch. 78; Wilkinson v. Mayfield, 27 Miss. 542; Brown v. Throckmorton, 11 Ill. 529; Gr. Gulf R. R. & Bank. Co. v. Bryan, 8 Sm. & M. 234; Doolittle v. Harrington, 1 Morris, 226; Delamay v. Burnett, 4 Gilman, 454; Bowen v. Higbee, 9 Mo. 259.
In this State, this subject has been-frequently considered. In Rhea v. Hughes, (1 Ala. 219,) this court, in speaking of the interest which a settlor on the public lands acquires, said: “His interest in the land is a mere permission to occupy it, personal to himself, and not capable of transfer so as to give any legal right to any other person.” In another place, the court had "said: “It [his claim] is neither an estate by sufferance, at will, or for years, nor can the continued occupation of the land ever operate so as to create a legal title.” — See, also, Johnson, v. Collins, 12 Ala. 322; McElyea v. Hayter, 2 Por. 148 ; Land v. Hopkins, 7 Ala. 115; Elmore v. Harris, 13 ib. *49360; Haden v. Ware, 15 ib. 149; Cruise v. Riddle, 21 ib. 791; Pettit v. Pettit, 32 ib. 288; Cothran v. McCoy, 33 ib. 65; Burns v. Hamilton’s Adm’r, 33 ib. 210.
We do not, however, deem it necessary, in this ease, to determine whether Nolan has forfeited all right to' the lands in controversy, or whether he has any, and what remedy. The plaintiff below, by the production of his patent, made out a prima-facie case for recovery,' and the defense offered was insufficient to overturn it-, as we will now proceed to show.
The plaintiff' McDowell, by his patent from the Hnited States, proved himself to be the owner of all the title which the federal government possessed, or could convey. He had purchased the land, and paid the government price for it. Nolan has paid nothing, and we can not know that he ever can or will pay the purchase-money for tke-land. Neither the Hnited States, nor the plaintiff' in this suit, has any power toc.ompel him, either in law or equity, to pay the purchase-money. Nei-thex^ McTyer nor Howard is the owner of Nolan’s-pi'e-eniption. light— we mean, his right to enter the land at the minimum price — because such right, before patent issues, is not the subject of sale. If, then, this mere pi’ivilege in Nolan,, aud possession in Howard and McTyer under him, can,, at law, defeat a recovery by McDowell, the patentee, then McTyer or Nolan has acquired a perfect and independant title to this .land, without paying the government or McDowell anything for it, and without incurring any liability to pay anything. An argument which leads to such resulte, is not sound. — Iverson v. Dubose, 27 Ala. 418.
[3.] We hold, that the defense relied on in this case is wholly insufficient to overturn the plaintiff’s prima-facie case, and the court would have been justified in pronouncing it so. This being the case, we will not inquire whether the court may or may not have committed errors, in the various rulings on the trial. — Gilmer & Taylor v. City Council of Montgomery, 26 Ala. 665 ; Shep. Dig. 568-9, §§ 82, 108.
'Judgment of the circuit court affirmed..