dissenting.
Hunter brought an action of ejectment against Allison in the circuit court of Pike county. Upon the trial, Hunter produced in evidence a receipt from the receiver of the land office at Palmyra, for the purchase money of the land in controversy, and proved the defendant Hunter in possession of the land.
The defendant then offered evidence, both oral and documentary, to prove:
1. That the land was reserved from sale.
2. That at the time of the.plaintiff’s entry, the land in controversy had never been offered at public sale, and consequently was not liable to private entry.
3. That the land in controversy was within the limits of the claim of Antoine Dubreuil, confirmed by act of Congress of 4th July, 1836, and that defendant derived title from Dubreuil.
4. That one Elihu Watson had a pre-emption right on the land, under the act of 29th May, 1830, and that said right had been conveyed by deed to said defendant; and
5. That said entry was fraudulent and illegal.
This proof was all rejected by the circuit court, but from the documents, and testimony of witnesses preserved by the bill of exceptions, the facts appear to have been as follows:
*753On the 11th of July, 1831, Hunter, the plaintiff, entered the east half of the S. E. qr. of S- 8, town. 58, R. 1. The register of the land office was absent at the time, but had left blank applications, wito his si nature to them, in charge of the receiver, so as to enable the business of the office to be transacted in his absence. The register was a witness on the trial, and testified that Hunter, or his agent, had applied to him to enter the land, but that he had informed him it could not be entered, because of a private claim indicated on the maps in his office by feint pencil marks. The register states that, had he been present, he v/ould not have permitted the entry; but he had gone to St. Louis on business, and was absent some ten days.
Elihu Watson had settled on this land in 1823. In December, 1830, he applied to the land officers for permission to prove up his pre-emption, under the act of May 29, 1830, hut was refused, beeause of its being within the claim of Dubreuil, and consequently not subject to pre-emption. In September, 1832, the commissioner of the general land office, directed the register and receiver to take the proof of Watson’s pre-emption, nunc pro tunc, and it was accordingly done, but not left on the files of the office. Watson, in 1835, sold his pre-emption right to the defendant AIJison, and subsequently left the State. There was no proof offered of any title to Watson, either by certificate or patent, emanating from the United States.
On the 4th July, 1836, the claim of Antoine Dubreuil was confirmed by act of Congress. The 2d section of that act provided, “that if it shall be found that any tract or tracts confirmed as aforesaid, or any part thereof, had previously been located by any other person or persons under any law of the United States, or had been surveyed and sold by the United States, this act shall confer no title in opposition to the rights acquired by such location or purchase.”
The defendant also claimed to have a derived title from Dubreuil.
It did not appear from the proof actually offered on the trial, whether this claim of Dubreuil was one of those which had been duly filed with the recorder, so as to be within the reservation of the act of Congress of 1811. But I assume that it was so filed, from the fact that the claim was acted on by the first board of commissioners.
There are three principal points arising in this case, all of which have been fully discussed at the bar,, and each of which I propose to notice very briefly, to-wit:
First. The claim of Dubreuil,
Second. The pre-emption right of Watson, and
Third. The title of Hunter b\¡ his entry of Hth July, 1831.
*7541. On the 18th January, 1834, the commissioner of the general land office communicated to Congress the reports of the boards of commissioners, made under the act of 9th July, 1832, and the act of 2d March, 1833, and the action of Congress on these reports resulted in the act of July 4, 1836, confirming most of the claims, in favor of which the commissioners had reported.
In the report of the board, made on the 27th Nov., 1833,(Ex. Doc. 24th Cong.,vol. 3, doc. 50,) the following statement and suggestions are made by the commissioners:
“Upon the subject of conflicting claims, we have been unable to ascertain to what extent they exist, &c., &c. We are of opinion, however, that they exist to a considerable degree. There are numerous cases of lands lying within these French and Spanish claims, belonging to individuals whose right or claim originated under the government of the United States; some depend upon purchases; some upon the law allowing pre-emption ; some others upon New Madrid locations; and some again upon settlement rights which have been confirmed. Most of these persons have been for a long time settled on their lands. Their claims being of a bona fide character, derived from the government of the United States ; they went on to improve their lands, making for themselves and families comfortable homes, without any belief that they ever would be interrupted in their possessions. Should the claims reported by the board be confirmed by Congress, in whole or in part, Congress will, in their wisdom, no doubt, notice the suggestion here made, and carve out such a course as will quiet the uneasiness and anxiety which are felt, by doing everything which even the most scrupulous demands of justice could require.”
It was, doubtless, in conformity to these suggestions that the second section of the act of July 4, 1836, was framed, by which the rights of those who had located or purchased the confirmed claims, or any part thereof, by virtue of any law of the United States, were left unaffected by the act.
In the ease of Stoddard vs. Chambers, 2 Howard 284, the Supreme Court of the United States, have held New Madrid locations not to be within the protection of the second section, unless located or patented during the interval in 1830 and ’31, when the reservation by the act of 1811, did not operate. This opinion was based upon the principle that New Madrid locations placed upon lands reserved by act of Congress, were mere nullities — not voidable, but absolutely void. This court in the case of Sarpy vs. Papin, gave a different construction to that portion of the second section which relates to sales, relying on the be*755lief that the act was not designed to give any title, in opposition to actual bo?ia fide sales by the government, or its officers, whether those sales were authorized by law or not. When we consider the fact that these Spanish claims had been repeatedly rejected by the various boards of commissioners and public officers to whom they had been re-feared by the government from 1805 up to 1882, as utterly destitute of any merit; that they had been barred from time to time by various acts of Congress until revived by the act of 1824, and afterwards by the acts of 1832 and 1833; that the action of the officers of government in relation to these claims, had been exceedingly contradictory and inconsistent; at times allowing locations and sales; at other times refusing them, according to the caprice of the officer, or of the department to which he belonged; and that in point of fact, hundreds of sales and locations had been made within the limits of these claims, the purchase money of which was in the coffers of the government; and that these innocent purchasers, unsuspicious of danger, and lulled into security by the action of the government, had settled on the lands so purchased, i-.. (,ood faith, and made extensive and valuable improvements. When wé look at these facts, notorious here, and communicated by the commissioners to Congress, is it unreasonable to suppose that Congress, in passing the second section of the act of 1836, designed something more than a mere mockery of protection ? It the sales and locations were made in accordance with law, the purchasers needed no protection. Congress could not deprive them of title. What motive could have operated on Congress to protect those purchasers who happened to make their entries, or get their patents, between the 26th May, 1830, and the 9th July, 1832, and leave those who had located or purchased from 1818 up to 1836, unprotected ? There was no particular merit in the entries and locations made at this interval, except that it so happened, probably without the knowledge of the officers or purchasers, that the reservation of the act of 1811, was at this period inoperative.
The decision of the Supreme Court of the Ui.bed States in terms extends only to New Madrid locations ; whcthei the same doctrine will be applied to entries at the land offices, does not appear. The entry of Hunter was made on the 11th July, 1831. At this time the land was not reserved from sale, and therefore the rule in Stoddard vs. Chambers, protects this entry from any title acquired by virtue of the act of 4th July, 1836. So far, then, as the Dubreuil claim is concerned, I see no ground of objection to its exclusion by the circuit court.
2. The pre-emption right of Watson, it it had been proved and allowed in time, I should consider a sufficient title for the defence of this *756action. It may be further admitted that if the officers had permitted the proof of this pre-emption to have been taken subsequently to the expiration of the act of 1830, and the pre-emption right had assumed a tangible shape, either by entry or patent, it would have avoided the entry of blunter. But an entry of land subject to pre-emption, is not void; it is merely voidable. The pre-emptor may never claim his preemption, and in that event the title of the purchaser has never been questioned. This was the uniform construction given by the land department to the pre-emption law of 1830. The government has not allowed Watson’s pre-emption; it has not permitted him to enter the land or given him any evidence of title. It does not appear that his rights ever will be recognized; they have, in fact, been forfeited by reason of the sale to Allison.
In an action of ejectment, such a title resting on an abandoned and forfeited equity, constitutes no solid foundation upon which to base a defence.
8. The defendant offered to show the illegality of Hunter’s entry, first, by proving that the land had never been offered at public sale, and therefore was not subject to private entry; and second, by showing fraud.
Whether the register and receiver at Palmyra, ever complied with their duty in offering this land at public sale, before they permitted it to be purchased by private entries, is, in my opinion, a matter of no consequence whatever. It is a regulation of the department, and, unquestionably, a very wise and salutary one, conducing to the interest of the purchasers, as well as of the proprietor, that reserved lands when brought into market shall first be offered at public sale, before private entries are permitted. But even if this were a regulation by act of congress, and not resting on the mere usage of the agents of government, it would be only directory, and the validity of a sale would not be questioned, though made in contravention of the regulation. It would'produce a fearful instabilify in the land titles of this State, if the customary evidences of such title, the certilicate of entry or the patent,, could be successfully defeated, by showing that the agents of government who superintend these sales, have neglected to perform all the duties which the law prescribes. Had it been contemplated that a compliance with this regulation should be considered as an essential prerequisite to the emanation of a valid title, it is remarkable that congress has not provided any means by which the fact can be ascertained. There isnothingin the records of the register’s office, nothing in the records of the department at Washington, by which the fact can be as*757certained whether this land had ever been put up at public sale or not. Indeed we have on the record a voluminous correspondence between the heads of department and subordinate officers, from which an unsuccessful inquiry seems to have been instituted to ascertain this fact. It does appear, however, from a statement filed in the surveyor general’s office, that entries upon this land, which is said to have been reserved and never offered for sale, were in fact made during nearly every year from the year 1818 up to the year 1844, amounting in all to fifty-eight entries. Twenty of these entries have been patented. Jfine. of them were made in the year 1831, one of which was on the 4th July of that year, and another on the 1st day of August, and a third and fourth on the 24th and 29th June. In short, entries were made in the months of April, May, June, July, August and December, 1831, and the entries made in the months of April and June are marked patented. Yet it is said that this land never was offered for sale, and the register, who was a witness in the case, is unable to give any satisfactory information on this subject, but says that had he been at the office on the 11th July, 1831, Hunter should not have been permitted to make his entry. Entries were permitted on the 24th, 25th and 29th June, and the 4th July and 1st August, 1831. The register might have refused to-permit Hunter’s entry on the ground of Watson’s pre-emption, and very properly; but I see no reason for the refusal arising from the reservation of the land, or the failure to make public advertisement, which would not apply to all the other entries which appear to have been permitted during that year.
The defendant also offered to prove that Hunter’s entry was fraudulent. That fraud vitiates the most solemn contracts, has become a maxim of the law; but it is difficult to conceive of any fraud which could affect the character of this transaction. If the sale was legal, it matters not how fraudulent may have been the motives or conduct of either the officers or purchaser. The fraud attempted to be proved in this case, was that Hunter took advantage of the register’s absence, who had previously rejected his application, to make the entry. If the rights of any one else had been affected by this transaction, the person prejudiced might complain, but the pre-emptor, Watson, it seems, had met with the same fate as Hunter, and never succeeded in getting any title. His interests,.if he has any now, are not in a shape to be available in his action.
The judment of the circuit court was, in my opinion, correct.