delivered the opinion of the court.
The plaintiff asserts title to a lot of ground, containing one hundred and twenty-six acres and 3-100 of an acre, being in township 3, South Range 3, East of the Basis Meridian oil South of latitude 31, which he complains has been táken possession of by Martin Woods, the defendant to his damage, and he prays, that the title may be decreed to be in him.
The defendant, after denying generally the allegations in the plaintiff’s petition, alleges, that he, the respondent, long since in person settled on, inhabited and cultivated the lot of land sued fox. That he was an actual settler on said land, and head of a family, and above twenty-one years of age, and a housekeeper on the 22d day of June, 1838, and for four months preceding, commencing on the 22d February, 1838. That by reason of the premises, the title to said land vested in him by virtue of an act of Congress, approved on the 22d June of that year, entitled an act to grant pre-emption rights to settlers on the public lands. That he fully proved all the foregoing facts before the Register and Receiver at Opelousas, but that those officers, in violation of law and in disregard of the positive instructions of the Commissioner of the General Land Office permitted the entry of said land by virtue of a floating right. That the plaintiff never produced his written consent to the entry of said land. That the defendant has appealed from the decision of the Register and Receiver to the commissioner of the general land office, and the object of this action is to defeat that appeal,
There was judgment for the defendant as in the case of non-suit, and the plaintiff appealed. The appellant has not favored us with any arguments either written or oral, and relies, we *338presume, upon -tie evidence of his title in the record. The appejpe6j answer to the appeal, prays, that the judgment may be amended and rendered final in his favor, instead of one of non-suit.
of purchase gister and Receiver . is not final evidence of title out of the government, when it ¡s andWn purchase alR-imF-'°peiái-thoug-h generally such eertifi-cates are con-vient evidence the government1 basis of°a npet¡e tory action.It is shown conclusively, that the purchase or entry by the .plaintiff has been upon opposition or appeal, annulled and declared void by the commissioner of the general land office, and that decision approved by the secretary of the treasury. This decision is founded upon several grounds, one of which is, that a township plat, duly approved of the township in which the land is situated, did not exist in the office at the time of the purchase ; and another, that the float of the plaintiff was not located at the same time, that he availed himself of his principal pre-emption right as an actual settler, according to the construction put upon the act of Congress by the land department. This decision was communicated to the Register and Receiver at Opelousas, and the commissioner in a subsequent communication, remarks: “This office having upon a reference of the case of Hypolite Guidry and Celeste de Lafosse •decided, that the floats of either of those individuals could be located on T.3, S. R. 3, E. and in a letter of the 17th November, communicating to you that decision, and having, notwithstanding permitted the floats of those individuals to be located in said’township, and one thereof on lot 72, T. 3, S. 3, E., a^ove mentioned, this office on the 18th of December last, for those xeasons and others mentioned in that communication, cancelled certificates 1917 and 1918. Said tract therefore, . . being public land, no reason is seen, why the claim of Martin Woods should not have received some action at your hands ; an(^ i*- *s accordingly returned for your examination and deci-sjon.”
It is clear, that the mere certificates of purchase, such as arc exhibited in this case, are not final evidence of title out of the government; although this court has generally considered suiEcient evidence of a sale from the government, as to fee the basis of a petitory action. Such certificates are liable *339to be cancelled by the land department, when they are shown-not to have been fairly and legally obtained. The decision of the Register' and Receiver, in the absence of fraud, would be conclusive as to the facts, that the applicant for the land was then in possession, and of his cultivation of the land within the . , , . ,. , . previous year; because these questions are directly submitted to those officers. Yet if they undertake to grant pre-emptions to land, on which the law declares they shall not be granted, then they are acting upon a subject matter clearly not within their jurisdiction ; as much so as a court, whose ... . , , . , ,, was declared not to extend beyond a certain sum, should attempt to take cognizance of a case beyond that sum. 13 Peters, 498.
The Register and Receiver are to decide on appHc°aiithiibrha fn^possession the previous year; hut if they under-pre-emptio^to }and> the law declares shall not he Gjr&ntecl Ihcy are acting on a clearly notvvith-juris" . TJle commissioner of the general land of-supervision of ?e secretory- of the treasury,lias the power to declare whta lands according to law try or location rj^iltV^r^oats" thecStíficat^of the Register and Receiver m this respect.The evidence further shows, that the certificate was not granted or the entry made untillong after the act of Congress of 1834, under which it purports to have been given, had expired by its own .limitation. The purchase appears to have been made in virtue of a pre-emption float, under the act of Congress of the 19th June, 1834, and the certificate of purchase bears date May 3d, 1838. The construction put upon that law at the department has always been, and the instructions to the Registers and Receivers conformable to it, that these floating rights, as they are called, to eighty acres, under the act, must be entered and located at the time of entry of the tracts, on, which such floating rights accrued, and that these floats are liable to the same disabilities, as the original pre-emptions, under which they accrued, and which the law requires to be located before the commencement of the public sales, which shall include such original pre-emption tracts. II. Opinions and instructions, 633 et seq. Public Lands, Part 1
We do not doubt the authority of the commissioner of the general land office, under the supervision of the secretary of the treasury, to decide upon questions such as that presented by the case of Guidry, relating to the true construction of the act of Congress, and declaring void a certificate of purchase of r lands, which the law forbids to be sold or dispose^ of; although *340the Register and Receiver alone have jurisdiction to decide who is entitled to a pre-emption, that is to say, as to the sufficiency of proof of settlement and cultivation under those acts. 4 La. Rep. 549; 6 Idem, 12.
The evidence and deposition of the land commissioner, of cancelling1 the Receiver’s cei^ tificate of entry and purchase of land, not liable solder entered righw'eórToats” proof1”?^these facts. In a petitory action, when the bitsn<the 6hest entitled6 to yfcS mereljr one of 'But even if the land department had decided otherwise, we held in the case of Jourdan et al. vs. Barrett et al., 13 La.Rep. 41, that the decision of the secretary of the treasury, under the hack-concession or pre-emption laws, approving the operations of the surveyor general, in making the apportionment among different claimants, was not conclusive upon the legal rights of the parties, under the act of Congress. The same principles apply to other officers, who do' not act judicially. The present case can hardly he distinguished from that of Marsh & Miller vs. Gonsoulin, so far as concerns the right of the defendant. 16 La. Rep. 84.
The court, in our opinion, erred in rejecting the written evidence of the cancelling of the plaintiff s certificates, and .. .. , , the depositions of the commissioner of the general land OÍI1C0.
The certificates having been declared null by competent authority, and being evidently void under the act of ConJ ° ... gress, which, forbids the disposition of the public lands, until a township plat duly approved shall be returned to the officer, and on other legal grounds, it is clear, the P^^iff exhibited no subsisting title to the locus in quo.
The. defendant insists upon his right to a final judgment, , instead of one of non-suit. Although this court disclaims any right to decide upon the question, whether the evidence of occupancy and cultivation be sufficient to entitle the defend-t0 Purc^ase as a pre-emptioner, yet we do not see, why there should not be final judgment against the plaintiff, and the defendant be protected in his possession against any future action upon the same pretended title. Without deciding therefore, that the defendant has a valid title against the government or any other person, we think his title better than that exhibited-by the plaintiff.
*341It is therefore adjudged, and decreed, that the judgment of the district court he reversed and annulled, and ours is, that there he final judgment against the plaintiff, and that he pay the costs of hoth courts.