>The plaintiff claims the land in suit as part of the swamp land grant made by Congress, September 28, 1850, and the defendants as a part of the railroad land grant made by the government, February 9, 1853.
1. Theswamp -.grant was in ¿resentí. The rule is well established that the act of 1850 made a present grant of all lands coming within the description of the act; and when they are properly designated, the conveyance relates back to the date of the grant. Hendry v. Willis, 33 Ark., 833.
By the terms of that act, it was made the duty of the Secretary of the Interior, as soon as practicable after its passage, to make out an accurate list and plat of the lands granted, and transmit the same to the Governor, and, at the request of the Governor, to issue a patent to the State. The law indicated no method by which the Secretary should ascertain and designate the lands, but a practice grew up whereby the agents of the State selected the lands and transmitted lists thereof to him, through the Commissioner of the Land Office, whereupon he certified back to the Governor a list and plat of such as he approved as coming within the description of the grant. The Secretary was designated by the act to determine what lands came within it, and his conclusion was manifested as above indicated. In the operation of the •system great delay arose in procuring his approval of the lists forwarded; and on the 3d of March, 1857* Congress passed an act providing that all selections theretofore made and reported to the Commissioner of the Land Office, in so far as the same were vacant and unappropriated, and not interfered with by any actual settlement under any existing law of the United States, should be confirmed. By that act all lands previously so selected and not appropriated or settled on, as therein indicated, were brought within the provisions of the original act, without ascertainment by the Secretary. The State’s selection of the land in suit had been made and reported to the Commissioner, and this act impressed upon it the character of swamp lands, and brought it within the operation of the granting act, unless it came within the exception as land previously appropriated or settled under some existing law. The railroad filed its selection of this land after the passage of the act of 1857, but it does not appear that it had appropriated it or settled on it before that date. The Secretary of the Interior approved its selection, but such approval was made expressly subject to conflicting claims. He never adjudged that it was appropriated or settled by the railroad prior to March 3, 1857, or that the railroad, prior to that time, or any other time, was entitled to appropriate or settle upon it against the swamp land grant. There is no adjudication by the Secretary of the Interior ; and upon the proof in this case we hold that the land did not come within the saving clause of the act of 1857. ^ may therefore be conceded that either grant would have conveyed the land if the other had been out of the way,, in which case the elder would be held to prevail. Martin v. Marks, 7 Otto, 345.
- _ The defendant contends that although the State took this land as a part of the swamp land, the plaintiff cannot recover. As a reason therefor he urges that the State was the owner until 1881, and that, by the act of March 13, 1879 (Acts 1879, p. 64), it was provided that where any lands claimed by the State and the railroad company under the acts first referred to had been sold by the State or the railroad prior to said date, the title of the purchaser should be confirmed and quieted.
The act appealed to was entitled, “An act to authorize' the Commissioner of State Lands to settle by compromise the conflicts of title between the State and railroad companies to selected and unapproved swamp and overflowed lands.” It provided that in all cases where lands had been selected by the State and a railroad company, and, because of such conflict, had not been approved or patented to either the State or the company, the Commissioner of State Lands should be authorized and empowered to compromise such conflict with the company, and agree which of the lands should go to the State, and which to the company; and if any legal point should arise upon which the Commissioner and the company could not agree, the Commissioner should be authorized with the company to make an agreed state of facts and submit the same to the chancery court to decide the legal,points arising thereon, with the proviso that in all cases where such lands had been sold by the State or the-company, the title of the purchaser should not be disturbed, but should be confirmed and quieted. The plaintiff contends that the land in controversy does not come within the provisions of this act, because this land had been approved to the State by the act of Congress of March 3, 1857, and the State act applied only to lands selected but not approved or patented. The defendant replies that the act of March 3d did not approve lands selected; but, in so far as they had not been appropriated or settled upon under existing laws, confirmed them, and expressly provided that they should be approved and patented according to the original act as soon as it might be practicable; and that the Secretary of the Interior had never approved or patented them to the State, as was thus provided, and had failed to do so because of the railroad’s claim that it had previously appropriated them. Why the Secretary failed to certify the list and plat of this land to the Governor and to make a patent for it, is not disclosed by the record; but the fact of such failure appears. It is not necessary to determine the matter of difference stated, for in our opinion the act relied on is inapplicable for another reason. As its title and context clearly discloses, the act treated alone of the authorized proceeding between the Commissioner and the railroads to compromise conflicting claims. In the first place it authorizes the Commissioner to make a compromise on behalf of the State; it then provides that he may submit any difference of law between himself and the railroad for the decision of the chancery court, clearly intending any difference that might arise in the course of a compromise and that the court shall decide the legal questions submitted. Then follows the proviso that the title of all persons who had purchased either from the State or the railroad should be quieted. The legislature did not intend by that act to confirm and quiet titles of purchasers from the State to lands belonging to the railroad, for that was beyond its power. It cannot be thought to have intended to relinquish absolutely the State’s claim to its lands that had been sold by the railroads, for that would be a bestowal of a bounty out of public lands upon the purchasers of another with no compensating returns. The proviso was intended to indicate and limit the Commissioner’s authority in compromising the conflicting claims, and to prescribe a rule of decision to govern the chancery court in determining matters submitted to it. It prescribed terms upon which such claims might be submitted to compromise; and if the railroads agreed to a submission, they accepted these terms. If, in the course of the compromise, it should be ascertained that the State had sold lands belonging to the railroad, or that the lailroad had sold lands belonging to the State, it was fixed by the terms of submission that the title of purchasers from each should be confirmed. The State thus gave up its lands sold by the railroad, in return for a relinquishment by the railroad of its right to its lands sold by the State. It may well have been considered that the losses on each side would be compensated in concessions by the other. But there is no proof that the railroad ever submitted to the conditions of the act, and therefore its purchasers can claim no benefits dependent on such submission.
3. Remedy for fraudulen t !atentement It is next contended for the defendant that the plaintiff recover because, at the time of the latter’s purchase from the State, the former was, and the latter was not, entitled to purchase the land; that the plaintiff obtained his patent by means of a false affidavit, and thereby deprived the defendant of his right to obtain a patent. This, it is insisted, was a fraud on the defendant, and entitled him to demand a conveyance from the plaintiff.
A stranger or occupant without right cannot assail a patent for fraud practiced against the State ; but an ocfcupant with a right to purchase may attack a patent issued in fraud of his rights, and upon equitable terms may demand a conveyance from the patentee. Lee v. Johnson, 116 U. S., 48; Paty v. Harrell, 24 Ark., 40; McIver v. Williams, 24 Ark., 33; Sparks v. Pierce, 115 U. S., 408; Bohall v. Dilla, 114 U. S., 47; Smelting Co. v. Kemp, 104 U. S., 636; Frisbie v. Whitney, 9 Wall., 187 ; Garland v. Wynn, 20 How. (U. S.), 6.
The plaintiff obtained his patent by means of a false affidavit in which he alleged that he was in possession of the land, when in fact he was not but the defendant was in possession. The evidence shows that the defendant’s grantors entered upon the land as early as 1871, held actual possession and made improvements; that the defendant purchased in 1880, went into possession, and made further improvements. The plaintiff purchased the land from the commissioner in 1881 as unconfirmed swamp lands, and brought this suit nearly seven years later. Did the defendant have a superior right to purchase it? If he did, he was deprived of it by the fraud of the plaintiff.
4. Settler’s preemption. He insists that he had a right of pre-emption, and relies upon the act of March 18th, 1879, being section 4227 of Mansfield’s Digest. It is as follows : “ Pre-emptors and settlers ■on the selected and unconfirmed swamp lands of the State, and their legal representatives or assigns, shall have a preference right to purchase such lands by making satisfactory proof to the Commissioner of State Lands of their rights as such pre-emptors and settlers.” To guard the preference right thereby conferred, the statute further provides that any person not a pre-emptor or settler, who shall apply to purchase any of such lands, shall make and file with the Commissioner an affidavit stating that the land applied for has no improvement on it, and that no person is residing upon it or claims it by virtue of any pre-emption certificate. A more jealous care of the interests of the settler could not have been manifested.
But does the defendant come within the provisions of the act? It relates to settlers on selected and unconfirmed lands only; and it may be insisted that this is not unconfirmed lands, but that it is confirmed land. It therefore becomes necessary to determine what the legislature meant by the term “ unconfirmed lands.” If the meaning is to be gathered from the significance of the same term in the act -of Congress of March 3, 1857, it must be construed against the defendant; for, as already stated, it is provided by that act that the title to this land be confirmed.
The word “ confirmed ” was employed in the earliest State legislation with reference to swamp lands. Gould’s Dig., p. 717, sec. 3 ; ib., p. 719, sec. 7. In the earlier acts the authority of the State’s officers to make sales was confined to the confirmed lands, while the right of settlement and pre-emption was provided for the unconfirmed lands. So at one time the Governor was authorized to issue a patent only upon being satisfied that the lands were confirmed. And in the case of Hendry v. Willis, 33 Ark., 833, a patent issued by- the Governor was attacked on the ground that the lands were not confirmed when it issued. In determining when the lands were confirmed within the meaning of that act, the court said: “ The selections have been, in fact, made by the agents of the State, sent to the Secretary of the Interior, through the Commissioner of the General Land Office, approved and returned to the Governor. * * * When those lists so approved have been transmitted to the Governor, they have been treated in our legislative and official acts as confirmed, and so we must understand the word.” That such is the accepted significance of the word in the land department of the State, is evidenced by the fact that the land in suit was carried on the Commissioner’s books as unconfirmed, and so sold and described in plaintiff’s patent, although the State’s-selection of it was on file with the Commissioner of the General Land Office on the 3d of March, 1857, and it was, within the meaning of the act of Congress of that day, then confirmed to the State. Then, in interpreting its meaning in the act relied on, shall we give it its meaning in the act of Congress, or its meaning as understood in the State land office, as used in prior acts of the legislature, and as accepted by this court ? In which sense did the legislature intend it? It seems the more reasonable to conclude that it intended it in the sense in which it was then understood in legislative and official acts in this State, rather than that it intended to ignore this settled acceptation and adopt the signification of the word in an act of Congress, a signification which for twenty-two years had not been adopted in the administration of kindred acts embodying the same word. The special provisions with reference to unconfirmed lands were prompted by the recognized uncertainty as to the State’s claim, and the insecurity that purchasers would feel as to lands of which the State did not have the ordinary proofs and muniments of title; and it may well be presumed that such special provisions were intended to apply so long as the Secretary of the Interior failed to do anything that he ordinarily did to assure the State’s right to such lands; for until he did that, the State’s land office could not exhibit to applicants or furnish to purchasers the usual ■evidence of a title. This' construction of the acts seems more reasonable also because it tends better to subserve the State’s general policy of protecting settlers on this class of lands. It secures the State in its right to be paid for its land, and protects the settler in the enjoyment of the fruits of years of his toil, labor and outlay; and where a stranger obtains the patent without right, it corrects the wrong without imposing a penalty on him.
The judgment dismissing the complaint was erroneous, and must be reversed. The judgment should have been for the defendant on his cross-complaint; and if, within a reasonable time to be fixed by the court, he should pay the plaintiff the amount paid by the latter for the State’s patent, with interest from date of payment at 6 per cent, per annum, the legal title to the land should be vested in defendant. As the defendant disputed the plaintiff’s right to recover anything and asserted title in himself, the costs of the lower court should be divided between them. The cause will be remanded, with directions to enter a decree as above indicated.