Dissenting from the conclusion to which my brother j udges have arrived in this case, as well as from the principal legal propositions upon which brother Scott bases tlio result, in the opinion just delivered by him, I deem it my duty to express briefly the grounds of non-currence, with all due deference to the judgment of my associates. Understanding, however, that the case will be taken to the Supreme Court of the United States, where the questions involved will be finally and authoritatively settled, I deem it unnecessary to go at any length into the reasons and adiudications upon which my conclusion is founded.
My opinion is, that Morris holds the naked legal title to the land, based upon a supposed pre-emption right in Mrs. Taylor, which, by both sale and abandonment of her improvement, was destitute of legal foundation or merit as to her. That she having sold,her improvement, and abandoned the land, and the Territory of Arkansas, and being a citizen of Mexico, when the act of 14th July, 1832, (4 vot., U. 8. St. at la/rye. ¶. 603,) was passed, and this act applying only to continuous set tiers or occupants, who had been unable to prove up their pre-emptions under the act of 20th May, 1830, on account of some one of the obstructions therein enumerated, she was not in a position to derive any benefit from that, or any subsequent act applying to occupants. That she placed herself without the pale of the spirit and policy of the pre-emption system, which was designed to encourage the settlement of the public lands, and the improvement of the country by a resident population.
That this (in my judgment) meritless pre-emption, (as to her) was thrust in between Wynn and the State to defeat the arrangement which he had made with the Governor to secure title to the land, which was possessed and cultivated by Wynn, and he was thereby prevented from obtaining the legal title through that channel. That upon all the facts of the case, he is entitled, in equity and good conscience, to have the naked legal title held by Morris and based upon Mrs. Taylor’s supposed pre-emption right, -divested, and transferred to him upon payment of the entrance money.
That the United States having sold the land, and received the entrance money, has no interest, in the controversy. That the State is not a necessary party ; because, though she selected the land as part of the 500,000 acre grant, and acquired thereby a right thereto, yet in consequence of the sale of it to Mrs. Taylor by the procurement of Morris, other land was selected, it seems, by the State in its stead. The State is not injured. Nothing could be decreed to or against her. Wynn is the only injured party, and Mrs. Taylor and Morris, being the' agents who procured the injury, the relief which he seeks may bo made full and ample, without other parties than them. It can scarcely bo doubted but that Wynn would have procured title to the land, through the State, by means of the arrangement which he made with the Governor, and which was afterwards ratified by the General Assembly, but for the interposition of Mrs. Taylor’s unfounded claim to a pre-emption. He having acquired title to her improvement by a succession of transfers, and she having abandoned the land and the country, and permitted him to occupy, cultivate, and improve the same, was thereby estopped from setting up any preemption claim thereto for her own benefit. But she and Morris interposing her groundless claim, to defeat the arrangement which Wynn had made to procure title to the land, and which he would •doubtless have secured-but for their acts, I think it but just and right, and perfectly within the power of the court of equity, to transfer the legal title from Morris to Wynn, under all the circumstances of the case, as made by the pleadings and evidence.