dissenting, says:
The view I take of this case renders it unnecessary for me-to discuss the rights of any of the claimants to the Hot Springs. If my findings had been in accordance with the majority, I would have been compelled to dissent from so much of the decree, as perpetually enjoins Gaines from enforcing his judgment at law.
The heirs of Belding, who are represented by Gaines, prior to 1855, commenced an action of ejectment against Hale and Rector, and certain tenants holding under them, in the Hot Spring circuit court.
At the hearing in the circuit court, the judgment was against the Belding heirs, and seems to have been based upon the ground, that as the act of 20th April, 1882, reserved these lands from sale, the acts of the executive department in permitting their entry were void.
The Belding heirs appealed from this judgment, and at the January term, 1855, this court reversed the judgment of the Hot Spring circuit court, and remanded the same for further proceedings in accordance with the opinion of this court. At the re-hearing in the circuit court, Caines obtained a judgment in ejectment. From this judgment Hale appealed to this court. At the July term, 1857, that judgment was -affirmed by this court. By a writ of error the case was taken to the Supreme. Court of the United States, and at the December term, 1859, that court affirmed the judgment of this court.— (22 Howard, 144.) Immediately after the affirmation of the judgment of this court, by the Supreme Court of the United States, Hale and Rector filed separate bills in the Hot Spring circuit court, setting out at length the nature of their occupancy of the Hot Springs and the character of their respective claims, and asked that Caines et al., be enjoined from enforcing the judgment in ejectment. Hale, in his bill, sets up in substance, that Rector and the Belding heirs, acquired all their evidences of title with a full knowledge ef all his legal and equitable rights, and asks that all such title be declared void as to them, and in trust for himself, and asks for a decree, vesting the S. W. 1/4 of section 33, town, 2 south, range 19 west, in fee simple in himself and heirs. He concluded his bill with a prayer for an injunction against Caines and Rector et ais., commanding them and each of them, to desist and refrain from proceeding to have any writs of restitution or writs of possession, or mandate of any kind, of and concerning the possession of the land aforesaid, issued or in any manner executed against your orator, or any of the tenants holding under him, until the final determination of this suit, and that they be perpetually enjoined. Rector, sets up in substance,, that Hale never acquired any right under the act of 1814, and that his New Madrid location intervened before the Belding heirs acquired any rights, legal or equitable, and concluded his bill with a prayer, that Gaines may be enjoined from enforcing the judgment obtained in the action of ejectment; or suing out process to obtain possession of the premises covered by the New Madrid location, and that the certificate and pre-emption of Belding’s heirs be declared invalid, so far as they interfere with his said location. And that the preemption claim of Percifull, held by Hale, and the Cherokee certificate, attempted to be located by said Hale, be declared null and void, and that he be enjoined from setting up any right or title to the said Springs in virtue of either, and that by a final decree, that all clouds may be removed from his title to the said Hot Springs, etc. At the hearing, the cases of Rector and Hale were consolidated by agreement of the parties.
Gaines and the heirs of Belding filed their answer to the bills of Rector and Hale, wherein they deny, emphatically, that Hale ever acquired any legal or valid right or claim to the lands, including said Hot Springs, from Percifull or any other person, or by virtue of the Cherokee location. And in answer to the bill of Rector, Gaines denies that Rector acquired any title to the Hot Springs, by reason of the New Madrid location, on the ground that his location had never been filed Avith, or approved by the recorder of land titles, as Avas required by the act of February, 17,1815. Having thus answered, Gaines protests that said complainants, by their said bills, have not made or presented a case to warrant the relief thereby sought, or any i'elief in the premises, but that the same, and the matters therein set forth, are insufficient, and they demur in law thereto. The answer concludes with a prayer that the temporary injunction, granted at the filing of the bills, may be dissolved, and that they be allowed to execute the judgment in ejectment, and that said bill be dismissed and respondents discharged.
Hale filed an amended bill wherein lie sets up, that the certificate of the register and- receiver given to the heirs of Belding, had been recalled and cancelled by the order of the secretary of the Interior. Gaines answers, by saying, that he is advised such an order was made by the secretary of the Interior, but submits that the validity of said entry, or of their right of pre-emption, is in no wise affected or impaired thereby. At the hearing, the circuit court found in favor of the Percifull claim, held by Hale, and as to Rector, in favor of the New Madrid location, for so much of his claim, as is not included within the south-west quarter of section thirty-three, town, two south, range nineteen west, and granted a perpetual' injunction as against the Belding heirs, from enforcing or proceeding under the judgment in ejectment. From this decree, Gaines appealed, and Rector appealed from so much of the decree, as in any way interferes with the New Madrid location, •or any part thereof, which lessens the New Madrid location, about forty or fifty acres.
As to Hale’s claim, the majority of the court are of the opinion, that he acquired no right under the pre-emption act of 1814, and that even if he had done so, that he has failed to establish his right before the register and receiver of the land office, who are the officers before whom these proceeding must be had.
As to Rector’s claim, the majority are of the opinion that the New Madrid certificates could not be located on the land in controversy in 1819, because such certificates could only be located on lands, the sale of which was authorized by law; that it could not be located on the Hot Springs in 1838, because of the lands having been reserved by the act of May 29, 1832; and in disposing of their claims, the majority remark, .that “neither Hale or Rector have any rights, which measured by the acts of Congress, have as yet matured into either a legal .or equitable title to the land.” This finding, of course, fully Authorized the reversal of the decree in the circuit court. But now comes the strange, and to me, incomprehensible part of the decision.'
Instead of dismissing the bill and dissolving the injunction, the majority of the court, of its own volition, attacks the judgment at law obtained by G-aines, and which it is nowhere pretended, either by Hale or Rector, is either void or voidable, on the ground of accident, mistake or fraud, and, upon a mere question at law, reverses the decision, not only of this court, but the Supreme Court of the United States. It will be borne in mind that the bill, of both Hale and Rector, alleges that their evidence of title is of such a character that they could not avail themselves of it in the court of law, and that it is upon this ground alone that the portals of a court of equity was entered by these parties. Precisely the same evidence is-submitted to this court, on the equity side of this case, so far as Hale and Rector are concerned, as was submitted on the trial, and at the hearing in this court upon the law side of the case,except the fact that the secretary of the Interior ordered the cancellation of the certificate of entry held by Gaines. At the hearing on the equity side of the cause, after the evidence, that was not available in the court of law, the majority found that Hale and Rector have failed to establish any shadow of either a legal or equitable, title to the land in controversy. I am of the opinion that where the bill seeks relief from the court, to which it is addressed, asking a decision as to the superior rights of the complainants, that a court of equity has no power to declare upon the rights of a respondent, who is simply asking to have the bill dismissed with costs, where the court shall have found that the complainants aré not entitled to the relief asked. A court of equity only assumes jurisdiction for the purpose of enforcing an equity, and if it appear that no equity exists in favor of the complainant, then I am of opinion a court of equity is not authorized to interfere with the judgments of other courts, on the ground that a court of law has committed an error, and that is what, I conceive, the majority of the court have done in this case. In Gaines v. Hale, (16 Ark., 18), Judge "WalkeR says that Hale rests his defense to the action of ejectment upon two grounds:
“ First That the entry was made before the register and receiver, who had decided against all validity of the claim, upon the arbitrary and unauthorized direction of the commissioner of the general land office, in obedience to instructions from the secretary of the Interior.” Thus it appears that the question, as to whether the commissioner of the general land office had authority to allow the entry to be made, was fairly and directly presented to the law court, and the court said: “"We must, therefore, hold that the first ground of objection to the validity of the entry is not well taken.”
The second ground of objection was: “That Belding’s heirs failed to make the proof of pre-emption before the 29th day of May, 1831, and that before the passage of the act of July 14, 1832, extending the time within which to prove up pre-emp-tions claimed, under the act of May 29, 1830, Congress passed the act of April 20, 1832, whereby the land in controversy was wholly withdrawn from the control of the land officers of the government, and that all action of the land officers, in the sale or disposal of the land, is null and void.
In disposing of this question, Judge "Walker says: “That it is unnecessary to discuss the effect of the act of July 14, 1832, upon that of May 19, 1830, or of the act of May 20,1832, upon the rights of Belding’s heirs under these acts, as “the question which they are called upon to decide, is not whether Belding’s heirs were, in fact, entitled to a pre-emption, but whether, under the state of the case presented before the register and receiver, their action was extra-judicial and void;” and, in reply to this proposition, the court say that they “are not void, nor can they be questioned when brought up collaterally for consideration, unless it may possibly be done in a proceeding between the United States and the claimant.”
The fair legal presumption is, that all these officers acted within the scope of their lawful duties; and if they have not, I am at a loss to understand by what right Rector and Hale came in and set them up, when a court of law and a court of equity have both decided that neither of them have any legal or equitable title to the land in dispute.
Again, in Rector v. Gaines, 19 Ark., 80, these same questions' were presented to this court, and Judge Scott, in speaking of the reservation of April 20, 1832, says:
“If this act is operative as against the Belding heirs, the allowance and entry of the land was illegal and void for the want of power in the executive to sell the land in question.”
The learned Judge says, following the lead of the Supreme Court of the United States, in Lytle v. The State, 9 How., 314, “that the pre-emption right of Belding operates as a prior and intermediate appropriation of the land, on the 29th May, 1830; that the right vested, although it was perfected under the act of July 14, 1832.”
The majority of the court are clearly of the opinion, and seem to have come to the conclusion that, even if Hale and Rector had not rights cognizable in a court of law or equity, they would open a court of their own, and not only supervise the law judgments of the Supreme Court of the United States, that had not been attacked for fraud, accident or mistake, but set aside the acts of the officers of the Federal government, not on the ground that Hale or Rector’s title was intei’-fered with, but because, in their opinion, the officers were acting beyond the scope of their authority. Yet the majority of the court, in this case, grasp both these questions, and pass upon them with as much gravity as though there were some parties before the court whose rights would be sacrificed if this judgment of law should remain longer without emasculation.
It is a well established principle in law, that the complainant in equity must show a title to the thing he claims, not in some other person, but in himself. A defendant only comes into a court of equity by command of the court — he comes there, not to seek relief, but to answer those matters of which he is charged by the complainant, and it is of these matters only that a court of equity can pronounce, when it has been ascertained that the complainant is not entitled to the relief asked. It does not follow from this that a court of equity has jurisdiction to declare that a defendant has no rights, unless-the defendant has asked the court to pass upon them, and this. Gaines has never asked of this court. His plea has been that neither Hale or Rector had any legal or equitable title, and his prayer has been that the injunction he dissolved and the bill dismissed. His title has already been passed upon by a court of competent authority, over whose judgment a court of equity has no supervisory power, in the absence of fraud, accident or mistake.
In the case of Gaines et al. v. Nicholson, (9 How. 356.) an action of ejectment was pending to try the legal title to a tract of land in Mississippi; the defendants filed a bill, on the equity side of the court, praying for a perpetual injunction, upon the ground* that the plaintiff in ejectment had obtained a patent from the United States, by fraud and 'misrepresentation. The State of Mississippi acquired a right to every sixteenth section, for school purposes, by virtue of certain acts of Congress, and the trustees were authorized to lease the same for the benefit of schools. By the supplemental articles of treaty between the United States and the Choctaw Nation, one section of land was allowed to D. W. Wall et al. Wall assigned his interest to Gaines et al., who represented to the President that Wall, at the date of the treaty, resided upon and had made improvements thereon, thus bringing the particular parcel of land within the strict terms of the treaty, and presented a case paramount to any that could be pretended in the State or township, as a school reservation, and the patent issued to Gaines et al. Armed with this patent, Gaines et al., commenced an action of ejectment against the school trustees and the tenants holding under them. The defendants in ejectment, filed their bill, alleging misrepresentation and fraud on the part of Gaines et al., in procuring the patent. On the hearing in the circuit court of the United States, a decree was entered that Gaines et al., within sixty days, quit claim and relinquish to said school trustees and their successors in office, and that in default, the clerk is hereby appointed a commissioner to make said conveyance. From this decree, Gaines et al., appealed to the Supreme Court of the United States, and Justice Helson, in disposing of the case says: “On looking into the answer and proof, there does not appear any evidence of fraud or imposition, nor anything to rebut the presumption, which we must assume till the contrary is shown, that the patent was issued with a full knowledge of all the circumstances upon which the complainants rely to invalidate it. Fraud is not to be presumed, and the burden therefore lay upon the complainant to establish it; and having failed, all ground for the equitable relief failed also, and the court below should have dismissed the bill, leaving the parties to the settlement of their rights in the action at law, as in the absence of fraud or imposition, in the issuing of the patent, the question was one of conflicting title and purely a question of law.”
It strikes me that the doctrine laid down in the above case is applicable to the case before this court. As has been stated before, neither fraud, accident, mistake or imposition is charged or proven against Gaines, in procuring the certificate under which the action of ejectment was prosecuted. After patiently hearing the evidence adduced by Hale and Rector, this court, on the law and equity side, has declared that neither of them are entitled to a legal or equitable title to the land. Failing to establish an equity known to the laws of the State or United States, I am forced to the conclusion that the contest between the parties was a conflict of title, and therefore purely a question of law, arising under the pre-emption act of 1814, the Hew Madrid act of 1815, and the act of May 29, 1830, and having so failed, the conclusion, to my mind, is irresistible that this court can in no manner review, correct or revise the judgment of a law court upon this point, even if it was erroneous. In the case of Richardson v. The city of Baltimore, (8 Gill. 433,) the court held that “a court of equity has no right to interfere to arrest the proceedings of a court of law on the ground of legal error, and that it has no supervisory power over courts of lato, and that to justify the interposition of equity, there must be some inequitable advantage taken, which would render it un-conscientious in the party obtaining it, to enforce the payment.” It is not charged that any inequitable advantage was obtained by G-aines, over any of the parties in possession of the land, and if it had been charged, the majority of the court affirm that it was not inequitable. Marsh v. Edgerton, (1 Chand. Wis. 198;) Marine Ins. Co. v. Hodson, (7 Cranch, 335.) In Hendrickson v. Hincklay, (16 How. 445,) the object of the bill was to obtain relief against a judgment at law, and Justice OuRi'is, in delivering the opinion of the court, says:
“A court of equity does not interfere with a judgment at law, unless the complainant has an equitable defense, of which he could not avail himself at law, because it did not amount to a legal defense.” (7 Cranch. 33;) 5 How. 192; 14 How. 584.
This is the burthen of the bills of Rector and Hale. They assert, in order to enter a court of equity, that they could not avail themselves of their defense in the court of law, on the ground that an equitable title could not prevail against the legal, in the law court, where the trial was had. If then this court find that Hale and Rector had no equitable title, I am unable to see by what authority the majority attacks thejudgment at .law, in favor of Gaines. It seems to me that if Hale and Rector have no equities, they have no reason to complain of the judgment at law any more than any other citizen of the State.
Rector and Hale were sued in a court of law, and claim to have a legal defense, but their evidence was of such a character that it could only be made available in a court of equity. In Pollock v. Gilbert‘ (16 Georgia, 402;) in a case involving the principle just stated, it was held, that “when the jurisdiction of the court has once attached to a cause, the decision is final as to all matters within its cognizance, and operates as a bar to subsequent litigation in the same or any other tribunal, and no degree of wrong or injustice, in the determination of a case at law, will entitle the injured party to resort to equity, unless there is some special ground for its interposition.” In Hempstead et al. v. Watkins, (6 Ark. 317.) this court held, that “if a party defends at law, (and Hale and Rector did), chancery will not take cognizance of the cause, and re-hear it upon the same-state of facts upon which it was tried at law, without the addition of any equitable circumstances (and there are none in this instance) to give jurisdiction, but will respect the judgment of a court of competent jurisdiction, already pronounced upon the facts.” In Sturdy v. Jackoway, (4 Wallace, 174,) the Supreme Court of the United States held, that an action of ejectment, under the statute of Arkansas, “is a valid legal bar to a like action, subsequently instituted between the same parties for the same lands or premises, involving the same identical, title and rights to the possession of such land.” In Van Wyck v. Seward, (1 Edwards’ Chancery, 332,) Van Wyck commenced an action of ejectment against Seward. At the trial, A"an Wyck, in order to defeat the deed of Seward, attempted to establish fraud between Seward and his vendor, and in this he failed. Whereupon, he filed his bill, alleging the same facts and fraud that were presented to the court of law, and asked the interposition of a court of equity, and the chancellor said:
“I know no rule or principle by which a party can be permitted to litigate the matter over again, with the former judgment standing against him in full force, even though it should be an action of ejectment.”
An examination of the case of Gaines v. Hale (16 Ark. 11), will show that Hale, in the action at law, set up :
1. That the certificate of entry relied on by Gaines is a mere nullity, and conferred no right to recover the land in question.
2. That the land was reserved by the act of April 20,1832, for the future disposal of the United States, and the action of the register and receiver, in allowing the entry, was without authority of law, as fully as though they had acted without the instruction of the secretary.
3. That the pre-emption act of May 29, 1830, remained in force but one year, and that in as much as the heirs of Beld-ing did not prove their cultivation, etc., within that year, that the certificate is no evidence of title.
It will be borne in mind that these are the precise questions, that the majority now sit in review upon, and in which they say, that not only this court has twice erred upon, but that the Supreme Court of the United States has committed the-same blunder, and this they do without having any equity alleged or evidence presented. In Smith v. McIver, (9 Wheaton, 534,) Chief Justice MARSHALL said, “If the grant be void * it is void at law; if it bo true that North Carolina had no power to issue the patents * * * a court of law is as capable of deciding on that as a court of equity * * ■*. The questions in these cases have all been decided at law, and the party can have no right to bring them on again before a court of chancery. "What, were a court of equity, in a case of concurrent jurisdiction, to try a cause already tried at law; without the addition of any equitable circumstance to give-jurisdiction, it would act as an appellate court, to affirm or reverse a judgment already rendered on the same circumstances,, by a competent tribunal.” Now, if it be true, as the majority of the court announce, that Hale and Rector have no legal or equitable title to the land, does it not necessarily follow as a conclusion of law and logic, that this court has no power to-adjudicate upon a question of law that has been passed upon in a law court ?
I have heretofore stated that I was of opinion that when this, court had declared that neither Hale or Rector had a legal or equitable title, that the rights of the parties ought to be determined by the pre-emption act of 1814, the New Madrid act of 1815, and the pre-emption act of 1830. It is hardly necessary to state that the determination of the rights of the respective parties, under these different acts, are cognizable in a court of law, especially after a court of equity has determined tnat none of the parties are entitled to relief in that court. In Reeves v. Cooper, (1 Beasly, N. J. 224,) the object of the bill was to restrain the enforcement of a judgment at law, and the ‘court, after declaring that they were of opinion that there was no equity in the bill, remarks that, “This court is asked to correct alleged error in the judgment and proceedings of the Supreme Court, on the ground that the proceedings are errone-ous and contrary to law.” And, in reply to that proposition, -and such I consider to be the nature of the jurisdiction attempted to be exercised by this court, the chancellor said: “It is ■true that a court of equity will sometimes interfere and grant -relief against a judgment obtained by fraud or imposition, and -also against a judgment of extraordinary hardship, as where the defendant, in the court at law, was ignorant of the fact upon which he relies for relief pending the suit, or it could not .have been received as a defense, or he was prevented from -availing himself of the defense by fraud or accident, or by the act of the opposite party, etc., (6 Johns. Chancy. 86, 2 Green. Ch’y. 168,) but every one of the questions, presented by this ■bill, are questions more appropriately belonging to law than • equity. The questions involved are all pure questions of law, ■ and the court has the power to give the party adequate relief, .if he is entitled to it.” And the court declined to adjudicate ■upon a question of law that had been passed upon by another court, and dissolved the injunction, and such, I conceive, is what ought to be done iu this case. I am of opinion that an injunction is a secondary process, except it be for the prevention of torts, and is only to be granted in aid of some primary equity, which must he disclosed in the same hill that prays it. (Washington v. Emery, 4 Jones Equity N. C. 29.) If there is ■ any equity in the bills of either Rector or líale, the majority ■have been unable to find it. I am aware that when the majority of the court declared that neither Hale or Rector had any rights, which, measured by the acts of Congress, have as yet matured into either a legal or equitable title to the land, that they asserted that it did not follow from that fact that they .'had no rights or privileges whatever. I am compelled to confess my obtuseness as to the distinction so finely drawn, as X. have no knowledge of rights brought before a court of justice,, that do not come under the head of legal or equitable right-All the right that Hale claims, he says he derives by virtue of the pre-emption made by Percifull, under the act of 1814, and' the Cherokee location. Rector claims no rights except such as; flow directly from the New Madrid act of 1815. Neither Hale or Rector claim any right to the possession or occupancy of the Hot Springs, under or by virtue of any other right or claim. If" any equities have arisen to either of them they must have-grown out of some act of Congress, and as the majority have-not pointed out the particular act under which these rights,, which are neither legal or equitable, are derived, and which, in their opinion, require protection to s.atisfy the conscience of a court when the relief granted is not asked. I may be pardoned for expressing an opinion, that these extraordinary rights are-confined to the lex non serif ta of this particular case. I do-not profess to be even conversant with the principles of chancery law, but it appears to me that the object of the bills of both Hale and Rector, was to quiet their title to the Hot Springs, and if I am correct in this respect, then it appears tome that the principle of law laid down in the case of Nicoll v. The Trustees of Huntington (1 Johns. Chancery 166,) is applicable to the ease now before the court. Nicoll, in the case just cited, claimed the lands in controversy by virtue of a patent issued in 1688, and asserted that owing to great changes that had taken place in the beach, between the bay and the ocean, since the patent was issued, that certain guts or inlets, then well known, cannot now be located without the testimony of aged witnesses, and prayed that this title might be established by a decree of the court, and that the trustees of Huntington be enjoined from entering on the lands and taking the profits, etc.
The trustees of Huntington admitted the granting of the patent to Nicoll, but insisted that the lands in controversy were not included therein. Nicoll had maintained several actions of trespass against parties entering upon- the lands in •question, upon his continued possession of over one hundred years; but, inasmuch as the lands had become valuable, and inasmuch as the trustees of Huntington persisted in their claim, and were encouraging others to enter upon and carry ■away grass, etc., in despite of his title, he would he compelled to abandon his rights, or be led into a multiplicity of suits and great expense; therefore, he insisted that he had a right to demand the interposition of a court of equity, on account of the -difficulties attending a remedy at law. lie further claimed, that if it be found that the trustees had no title, that he, having shown a long and continuous possession, must prevail; •and asked that an issue be so framed as to inquire into the title •of the trustees, as well as that of himself, and that if neither party had a title, the property was in the State, as if the title was in the State, it would have weight in awarding the costs.
In 1811, a feigned issue was made up, and a verdict was found against the title of Mcoll, and the judge certified that he was of the opinion, and so declared to the jury at the trial, that neither Mcoll or the trustees had any title to the premises. A petition for a re-hearing was filed; and among other reasons, that the feigned issue, 'as directed, had only brought the title of Mooli in question, without, at the same time, inquiring into the title of the trustees. There-hearing was granted, and it is upon the disposition of the questions thus presented, ■that I find principles of law that are applicable to this case.
The chancellor, in disposing of the case, says: “ The foundation of the bill is the legal right of the plaintiff (Mcoll) to the lands in dispute, and his claim to the assistance of this court, arises from the peculiar state of the property and the oppressive nature of the litigation which it involves. The case states a proper ground of equity jurisdiction, and if the title, Mcoll sets up, was sufficiently established at law, before he mme here, or was since established to the satisfaction of the court, either upon its own view of the testimony, or by verdict upon one or more issues to be awarded at its discretion, it would then be the duty of the court to declare that right by decree, ,and protect it by injunction. But, on the other hand, if the title of Nicoll fails on investigation, it would then be useless -to put the parties to the expense of another feigned issue.”
After reviewing the evidence and claim of title of Nicoll, the chancellor arrives at the conclusion that the land in controversy was not included within the patent upon which Nicoll based his claim to possession and title, and after having thus found, says: “The result is, that possession must be adjudged to belong to, and to be in the party who has the right; and, as Nicoll has no title, he has no lawful possession, and the equity -of his bill has totally failed.”
In disposing of the proposition to have the court pass upon the title of the trustees of Huntington, and in the event it should be found that they had ho title, that the previous possession of Nicoll ought to prevail as to possession, the chancellor said: “It cannot be material whether the title set up by the trustees be good or not, as to the point of the dismissal of the bill. If the trustees have no title, yet the bill must be .dismissed, because Nicoll has no title, and, consequently, no ■equity to support his case.’1
It will be borne in mind that in the case now before the court, Gaines had established a legal title to the ITot Springs before the only forum authorized to pass upon titles of a legal character. I now submit that Hale and Rector, having come into a court of equity, and it having found against them, that they now stand in the position of a stranger, and are not entitled to any relief, by reason of their present possession, as It is not accompanied by any legal or lawful right.
In March, of 1850, the alcalde of San Francisco made a grant of the lots in controversy, and in December, of the same year, the Supreme Court of that State held, in Woodworth v. Fulton, 4 Cal., that all such grants were void for want of authority, and were not evidence of title. By an act of Congress, of March, 1853, town sites were authorized on public lands, to be entered in the land office, for the use and benefit of the occupants thereof. Treadwell purchased, in July, 1858, of one McHenry, who had entered the same at the land office. In October, 1858, the same question was submitted to the Supreme Court of that State, and by some improper means, Payne ascertained that the opinion of the court had been prepared in the case of Cotas v. Rasin, 3 Cal., wherein the former ruling of the court, as to the validity of the alcalde’s titles, was overruled.
With this knowledge in his possession, and before the rendition of the decision of the court, Payne purchased the title held by the grantee of the alcade, for a nominal sum. At the time of- this purchase, Treadwell was improving the lots in question, and Payne had full knowledge that such improvements were being made. At the hearing, Treadwell attempted to set up that the unlawful discovery of the forthcoming decision was not only a fraud as to the person from whom Payne purchased, but a fraud upon his (Treadwell’s) rights as a citizen to have the law pronounced by the court for all at the same time. The court said, in reply to that proposition, that the title was either in Payne or Payne’s vendor; and that so far as Treadwell was concerned, it was a matter of little consequence to him, whether Payne or Paynes vendor held the title, and that so long as the vendor did not complain of the fraud, that a stranger to the title could not avail himself of a. fraud. And this I say of the cancellation of the certificate by the secretary of the Interior: That so long as the government does not complain, it is a matter of little consequence, to Hale and Rector, whether the certificate is cancelled or not, if they had no right that would be advanced thereby, and this, court has declared they had none.
If Hale and Rector have made valuable improvements upon the land in controversy, I cannot see that this alters the equity of this case. Hale made his improvements under the belief, that the pre-emption of Percifull under the 'act of 1814, or his-. Cherokee location, would protect him in doing so. Rector made his improvement under the belief that his Hew Madrid location would protect him in doing so. Gaines made his improvement under the belief that the pre-emption act of 3830, would protect him; and I cannot conceive that because Hale and Rector were mistaken as to their rights, that them mistake can be construed into an equity, as against one holding an adjudicated legal title. It may be said, that this legal title is cancelled, and in fact the majority of the court do say that, “the action of the secretary of the Interior, in ordering the certificate cancelled, was proper, and the judgment at law based upon it must fall.” It is barely possible that a cancellation of a patent or certificate, by the mere order of the secretary of the Interior, would destroy the force and effect of a judgment at law, but I have been unable to find an instance in which this doctrine has ever been recognized by any of the courts of the Union. In my opinion, the power of that officer to cancel certificates or patents, must he exercised within the scope of his authority, and any citizen, whose interests are affected thereby, has the right to have the courts adjudicate as to whether the cancellation was a lawful or unlawful exercise of power : and until this has been done, I apprehend no court, professing to exercise an equity jurisdiction, would accept the action of the secretary of the Interior, in this respect, as forever settling the rights of parties, dealing with the government, and as Gaines, as yet, has not been allowed to enter a forum for that purpose, nor can he until some attempt ¿ball be made by the government or some one holding a legal title therefrom, to interfere with his possession and occupation. In Hale v. Gaines, (22 How., 160,) Justice Catron says: “It has been earnestly pressed on our consideration that the entry of Belding”s heirs is void, because the land it covers was not subject to entry by an occupying claimant or any one else, after the act of April 20, 1832, had reserved it from sale.” In reply to this proposition he says : “The plaintiff, in error, (Hale) is not in a condition to draw in question the validity of Belding’s entry * * * being a trespasser, without title in himself, he cannot be heard to set up an outstanding title in the gov-eminent to defeat the action. If Hale and Rector would not be heard by the Supreme Court of the United States, to set up a title in the government, does it not also follow, that the same parties should not be allowed to plead the cancellation of the certificate, by the secretary of the Interior? What is this but another way of pleading title in the government ? If Hale and Rector have no title from the government, and the majority say they have not, what difference does it make to them, or what equity arises in their favor, even if the certificate of purchase, given the Belding heirs, was legally cancelled? Does the cancellation of that certificate confer any right of possession on Rector or Hale ? I think not. In Groom v. Hill (9 Mo. 322), the question arose: whether the commissioner of the general land office had the power to cancel a certificate, in a case where fraud or mistake was not alleged, and the court said: “It is probably the duty of the commissioner to revise the proceedings of the register and receiver and vacate entries which may have been illegally made, and thereby arrest the completion of a title, originating in fraud, mistake or violation of law, but until his action assumes a shape recognized bylaw, it cannot effect the previous sale; that “the sale stands for what it is worth, at the time it was made, and cannot be vitiated or annulled by any subsequent ex parte proceedings of officers, provided, it was legal and valid at the time it was made, (now mark what the court says,) and of its legality and validity, the courts must necessarily he the judge.” Neither fraud or mistake is alleged in this case, and as to the entry and certificate being in “violation of law,” Justice Catron, (22 How. 160,) says, that, “Hale is not in a condition to draw in question the validity of Belding’s entry, being a trespasser, without title in himself.” If Hale and Rector cannot draw in question the validity of Belding’s entry, the cancellation of the certificate cuts a very small figure in this case. The pleading this cancellation by the secretary of the Interior is but another mode of pleading title in the government, and this, the Supreme Court of the United States say, cannot be done, and it is upon authority of this character, that I am compelled to differ with the majority on this point. Whether Gaines has any title, as against the government, is a question that, in my opinion, is not before the court at this time, and for this reason, I express no opinion upon that subject. Nor am I aware of any law, under which State courts obtain or acquire authority or jurisdiction to pass upon the title, as between the United States •and one of its citizens, in a proceeding in which such a finding is not necessary to the determination of the rights of the complainants, and I am clearly of opinion, that all such findings are mere gratuities, that can never amount to the force and effect of a judgment.
The majority of the court are of opinion that they are authorized to grant a perpetual injunction, under the prayer for general relief, in the absence of a prayer for specific relief. I am compelled to dissent from their conclusion in this respect, and am of opinion, that, to entitle a complainant to relief, under the general prayer, different from that specifically prayed, the allegations relied upon must not only be such as to afford ground for the relief sought, but they must have been introduced, into the bill, for the purpose of showing a claim to the relief, and not for the mere purpose of corroboratiny the complainant’s right to the specific, relief prayed., and that in all cases when it is doubtful with the complainant, or those who advise him, whether he is entitled to the specific relief prayed, that the bill ought to be so framed, that if one species of relief sought is denied, another may be granted. The prayer for specific relief in Hale’s bill is, that Rector and Gaines may be enjoined from enforcing any and all writs of possession, until the determination of this suit, and such other relief as may be consistent with his rights, upon the adj indication of his title. It will-be observed that the prayer of Hale is, that the injunction may continue until the determination of this suit, and that he may receive such relief as may be consistent with his rights, upon the adjudication of his title. He asks for no protection, «ave such as may be due him upon .the adjudication of his title. His title has been adjudicated, and the majority say he has none; now what relief is he entitled to ? The specific prayer of Rector’s bill is, that G-aines may be enjoined from enforcing his judgment in ejectment, and that the certificate held by Belding’s heirs be declared null and void ; that the pre-emption claim of Percifull, and the Cherokee certificate* held by Hale, declared void ; that Gaines and Hale be enjoined from setting up any right or title to said Springs, and that, by a decree, all clouds may be removed from his‘title to the said Hot Springs, and such other relief as may be consistent with the nature of his ease. What relief would be consistent with the nature of a case that has no standing in a court of law or equity ? To the special relief prayed for, by either Hale or Rector, the majority say, Hale and Rector are not entitled to it, upon the ground presented to the court. But they say that, “settlers making valuable improvements on public lands have not been regarded as trespassers; that this State, by statute, treats and protects such improvements as property.” The protection afforded by the State to this class of improvements, to which the court alludes, is found under the title of ejectment, which says: “The action of ejectment may also be maintained, where the plaintiff claims possession. of the premises, under or by virtue of:
“ First, An entry made with the register and receiver of the proper land office of the United States.
Second, A pre-emption right under the laws of the United States.
Third, Where an improvement has been made by him on any other public lands of the United States, whether the same has been surveyed or not, and where any other person, other than those to whom the right of action is given by the preceding clauses of this section, is in possession of such improvement.”
This section of our statute does not protect the improvement» of either Hale or Rector, because it expressly provides that the claim of improvement cannot be set up against “an entry made with the register and receiver of the proper land office, or a pre-emption right under the laws of the United States.” The Belding heirs claim under and by virtue of a judgment in ejectment, based on a “certificate of entry with the register .and receiver of the proper land office,” which certificate is based upon a “pre-emption right under the law of the United ■States.”
This case then comes within the rule laid down in the case of Groom v. Hill, (9 Mo. 322,) where the court declared, under a state of circumstances precisely similar to those in this case, that, “the sale must stand for what it is worth at the time it was made, and cannot he vitiated and annulled by any subsequent ex paite proceedings of officers, provided it was legal and valid at the time it -was made; and of its legality and validity, the court must necessarily be the judge.” It is hardly necessary for me to state, that neither Hale nor Rector can raise the question of the legality and validity of the entry, after the court had declared that neither of them have “any rights which, measured by the acts of Congress, have matured into a legal or equitable title.” In the case of Frisbie v. Whitney, (9 Wal. 187), the Supreme Court of the United States held, “under the pre-emption laws of the United States, the pre-emptor acquires no vested rights, until the money has been paid, and the receipt of the proper land officer given to the purchaser.” The Belding heirs have paid the money, and obtained the receipt of the proper land officer. This, the Supreme Court •of the United States, in the latest decision on the question says, constitutes a vested right. Has the court any authority to declare that this vested right can be adjudged a nullity in a proceeding in which the United States are not a party, and at the instance of men, the majority of this court say, who have no legal or equitable rights ? I am disposed to doubt it. The bill no where alludes to any right of the parties under this statute, nor "was this suit commenced to retain possession under the statute just quoted, nor can an action under that statute be brought in a court of equity.
There is no prayer for an injunction, that in the event the court should find the title is in the United States, as was the case in Nicoll v. The Trustees of Huntington, and if there had been, I could not have consented to grant it on the motion of a party that the court declares have neither a legal or equitable title to the land. It is a rule of courts of justice to disregard the right of a party, under a statute of limitation, unless the party desiring to avail himself of its benefit, shall plead the statute. Courts of equity, ought never to grope around among the statutes, to find a statutory right for the benefit of a party that waived all rights he might have had under it, in the court below. If Hale or Rector were entitled to any benefit or right by virtue of this provision of the statute, (a thing I do not concede) they ought to have plead it as fully as they would have pleaded a statute of limitations. The only excuse or authority that the majority of the court pretend to give, for invading the judgment at law, is, that the certificate has been cancelled, upon which the judgment was obtained. How this court is advised that the judgment at law was based upon this certificate alone, they do not state in their opinion.
Our statute allowed the action of ejectment to be maintained, upon an entry with the register and receiver of the land office, and also upon a pre-emption made under the laws of the United States. How the evidence of pre-emption, as well as that of the certificate of the register and receiver of the land office, seems to have been submitted to the law court.
The register and receiver, in their report to the commissioner of the general land office, both agree that Belding was in possession of the Hot Springs, and had a portion of the land in controversy in cultivation, as required by the act of 1830, and the only question of difference between them was as to whether Belding was- in possession in his own right, or the right of another. The presumption of the law is, that the judgment was authorized by the evidence, and how this court can determine whether the judgment was rendered upon the certificate, or the evidence of pre-emption, is more than I am able to determine.
It will be borne in mind that Gaines only submits his evidence of title in response to the bills of Hale and Rector. I admit that they were entitled to a discovery of the title of Gaines, so far as was necessary to establish the superiority of their own, but when this discovery had been made, and the complainants had failed to show, either a legal or equitable title to the land in dispute, I deny their right, or of this court, to inquire into the title of a defendant, disclosed under such circumstances, (4 Bouv. Inst., 111).
If the complainants are entitled to any relief, it is upon such equities as they may have acquired under the different acts of Congress, and not under the law of this State, regulating the action of ejectment. They have pleaded no rights under the statute; they have relied on the acts of Congress for possession and title, and by these acts they must stand or fall.
Upon the findings, in relation to the title of Hale and Hector by the majority, I am of the opinion that the injunction ought to be dissolved, and the bill dismissed. I am also of the opinion that the decree as to costs is palpably erroneous.