delivered the opinion of the court.
This is an appeal from the decree of the Circuit Court, for the District of Arkansas.
Under the act of the 12th of April, 1814, Jane Mathers claimed a right of preemption, by virtue of occupancy and cultivation, to the southeast quarter of section one, township eighteen south, range one west, containing one hundred and sixty-eight acres and ninety-six hundredths, lying south of the Arkansas River. She assigned her right to Thomas T. Tunstall, who entered and paid for the land at the Land-Office at Little Rock, the 24th of July, 1834, and obtained a patent certificate. On the 24th of February, 1838, this purchase was annulled by the Commissioner of *37the Land-Office, on the ground that the Indian title to the land had not been extinguished when the settlement was made. The Indian title was relinquished to the United States by the Qua-paw treaty, the 24th of August, 1818.
This tract was purchased of Tunstall by Pintard, in the spring of 1833, who took immediate possession, and made improve^ ments on it. In the autumn of the same year he removed his family to the land, constructed cabins* stables, and other fixtures, and in the spring of 1834 he cultivated seventy-five or eighty acres in com and cotton.
On the 23d of March, 1835, Pintard sold the above quarter section, and a part of the southwest quarter of section six, so as to make a tract of two hundred acres, at forty dollars per acre, to William Rhodes, who gave two notes of four thousand dollars each, payable in’ one and two years, with interest at ten per cent, per annum. The two hundred acres were sold by Rhodes to Goodloe on the 3d of March, 1837, for sixty-five dollars per acre. As a part of the consideration for this purchase, Goodloe agreed to pay Pintard the amount of. his claim so soon as a regular title for the premises should be obtained.
Goodloe, on the 15th of February,1839, proved a preemption in his own name, under the act of June 22d, 1838, to the quarter section, and paying the purchase-money into the Land-Office, he obtained a patent in his own name. Prior to this, on his contract with Rhodes, he paid to Pintard nineteen hundred sixty-three dollars and eighty-two cents. But having obtained the title to the land in his own name, he refused to make any further payments to Pintard on the ground that his claim was void.' To enforce the payment of the sum due him on the sale to Rhodes, Pintard filed the bill now before us, with a prayer that the land-might be sold, or so much of it as should be necessary to discharge the balance due to him.
It must be conceded that the first settler upon this land, the Indian title to it not having been' extinguished, could claim under the act of 1814, no preemptive right. No laws giving to settlers a right of preemption, can be so construed as to embrace Indian lands. Such lands have always been protected from settlement and survey by penal enactments. But, it appears that the Indian claim to this land was relinquished to the United States by treaty, in 1818 ; after which it was embraced by all general acts giving to settlers a right of preemption.
By the act of the 26th of May, 1824, preemption fights were given north of the Arkansas River, to all jvho- were entitled to such rights, under the act of 1814, and by the third section of the act of the 1st of March, 1843, every 'settler on the public lands south of the Arkansas River was entitled to the same bene*38fits under the provisions of the act of 1814} as though he had resided north of said river. By these acts a right of preemption was given in virtue of the first settlement upon the land.
But there was another and prior act which gave to the occupant of this tract a right of preemption. By the act of the 19th of June, 1834, every settler upon the public lands prior to the passage of that act, who was in possession of a quarter section and cultivated a part of it in 1833, was entitled to a preemption. In 1833, Pintard was in possession of the quarter section and cultivated a part of it, and he continued to occupy and improve it until the spring of 1835, when he sold his right to Rhodes.
By his purchase Goodloe entered into the possession of a valuable property, and if he desired to rescind the contract it was incumbent on him to relinquish the possession of the quarter section, arid claim the cancelment of the contract. He cannot avail himself of the benefit of the contract and resist a performance of it on his part.
But Pintard, when he sold to Rhodes, was entitled to the preemption of the quarter section. His claim was not only a valid one, but it was sold on reasonable terms, as Rhodes in two years sold the same to Goodloe at an advance of twenty-five dollars per acre. The attempt, under such circumstances, of Goodloe to avoid the payment of the consideration, by procuring the title in his own name, is fraudulent. A title thus procured would have enured to the benefit of the vendor, even if the preemptive right had not been vested in him.
A doubt is suggested in the argument whether^Goodloe, having purchased from. Rhodes, can be made responsible to Pintard. In his contract of purchase, as a part of the consideration, Goodloe bound himself to pay the amount due to Pintard from Rhodes on the previous purchase. It has been held that, under such circumstances, an action at law may be maintained in the name of the person to whom payment is to be made. But this is-a case in chancery, and no one has doubted, that in equity, such a contract may be enforced.
Has Pintard a lien upon the land for the balance of the purchase-money ? We think he has. Goodloe not only had notice of this claim, but he bound himself to pay it.
It is alleged that there is a mistake in the computation of the amount due, as decreed in the Circuit Court. If there be an error in the calculation, it is in favor of Goodloe, and of which he has no right to complain.
In their decree the Circuit Court gave the defendant a credit for the money paid to Pintard, and also a loan to, him of two hundred dollars, and a liberal allowance for the expense of procuring the title. A proper deduction was also made for the deficiency in the number of aeres sold-
*39There , appears to be no error in the decree; it is therefore affirmed, with .costs.
Order.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Arkansas, and was argued by counsel. On consideration wh ereof, it is now here ordered and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs.