I concur in the result of the opinion just delivered; but as there are some positions 'taken in the opinion, which I do not sanction, as well as reasoning, which I do not subscribe to — -not bearing, however, upon the main point upon which the cause is made to hinge — I desire, without attempting to give my views, in extenso, upon the subject, to designate the ground upon which I place my concurrence.
I am of opinion, that the question in reference to the fraudulent character of the pre-emption claim of Cloyes to the fraction of land in controversy, was one impliedly left open by the Supreme Court of the "United States, when this cause was adjudicated by that court, at their January term, 1850, as manifested by the report thereof in 9 How. U. S. Rep. 314, et seq.
I am further of opinion, that the testimony, shown by the record, renders it manifest that the claim of Cloyes, to a pre-emption upon the fraction of land in question, was established before the Register and Receiver of the Land Office at Batesville, on the 28th May, 1831, by means of perjury perpetrated by the claimant, and that the allowance and approval of the claim by those officers, as shown by the record at bar, was obtained by the fraud of Cloyes, through the instrumentality of that perjury.
And I am further of the opinion, that the fraudulent character of the pre-emption claim of Cloyes being established, as I conceive it to be, a Court of Chancery could not, upon principle, give the complainants, claiming under that fraudulent pre-emption right, any relief whatever against any of the defendants, though they claim under a patent, issued subsequently to the establishment of the pre-emption of Cloyes to the satisfaction of the Register and Receiver at Batesville. See Wynn vs. Morris et al., 16 Ark. Rep. 414; Wynn vs. Garland, same 440.
These propositions, and my conclusions upon them, enable me to agree to the result announced in the opinion just delivered. I decline to give any expression upon the other points considered and discussed, further than as hereinbefore intimated, preferring to reserve those questions for a future occasion, when, from the nature of the case, they will necessarily require special notice and direct application.