Ewing, Judge,
delivered the opinion of the court.
As preliminary to the main and most material point in the case, we will notice briefly an objection to certain evidence, documentary and oral, which was admitted on the trial, and which is assigned for error. The documentary evidence consisted of official letters of the commissioner of the general land office and the first auditor of the treasury, showing the action of that department upon the-application of the ap[90]*90pellant in 1847 — a joint letter of the register and receiver, Mahan and Griffith, of February 1,1850, in reply to a communication from the commissioner of the general land office in reference to the claim of the respondent to the land in controversy, in which they state that the entry of the appellant appears to be regular, through all the records of their office, with certain exceptions, which are noted, and which consist of erasures upon the books in connection with the respondent’s entry; also two letters of Commissioner Butterfield, one of date April 19, 1850, to the register and receiver, in which he announces his decision in the case and that he had caused appellant’s certificate of purchase to be relieved from suspension, the other April 19, 1850, to the respondent Johnson, in which he gives his reasons for the decision announced in the previous letter.
We think the evidence was properly admitted. The letters of Messrs. Young and Collins, first referred to, show the action of the department upon Carman’s application, and the act of Congress by which they were governed in ordering the money to be refunded to him for the land he had erroneously .entered. The other letters are the official correspondence of the commissioner and the officers at Palmyra relating to the contested case of Carman and Johnson, which present their official action in the premises and the grounds upon which that action was predicated. These documents; with others offered and read on the trial, were part of the same transaction, and were admissible as evidence of the official acts of officers, the validity of which was the very question involved.
As to the testimony of Rush relating to the usage of the office, it is sufficient to say that, so far as it was [at] all material or relevant, it was but a statement of what is obvious upon an inspection of the law governing the land officers in such cases, and what must have been the practice of the office if the law had been complied with.
The material point to be considered is whether there was any legal application for the land in controversy pending at [91]*91tbe time the respondent applied for and entered it in June, 1847 ; in other words, whether the previous application of Carman, in May of that year, was such as the law recognized, and had the effect to withdraw or suspend the land from sale until the proceeds of the land erroneously entered by him had been refunded by the government, and to give him the right to apply them to the land in dispute.
This question must be determined by the acts of Congress on the subject of correcting erroneous entries of land and of refunding money by the government to purchasers in such cases.
The first act on this subject is that of March 3, 1819, which provides that in every case of a purchaser of public lands at private sale having entered a tract different from that intended, and being desirous of having the error corrected, he shall apply to the register of the land ofiice, and if it appear to the satisfaction of the register and receiver that an error has been made, and that the same was occasioned by original incorrect marks made by the surveyor, or by the obliteration or change of the original marks and numbers, or that it has, in any otherwise, arisen from mistake or error of the surveyor or officers of the land office, the case is to be reported to the secretary of the treasury, with the testimony and the opinion of the land officers thereon ; and the secretary of the treasury may direct that the purchaser shall be at liberty to withdraw the entry so erroneously made, and that the moneys which had been paid shall be applied in the purchase of other lands in the.same district, or credited in the payment for other lands which shall have been purchased at the same office. (3 U. S. Stat. at Large, 526.) The next act is that of May 24, 1824, which is supplementary to the the foregoing, and extends the provisions of the act of 1819 so as to embrace cases where the error was not occasioned by the acts of the officers mentioned in the latter, and to cases of entries, not intended to be made, by a mistake of the true numbers designed to be entered; and it also provides that the purchaser, under certain restrictions as to [92]*92quantity and time, may have the mistake corrected by making affidavit to the facts of the mistake, and that every reasonable precaution and exertion had been used to avoid the error. This evidence, with the opinion of the land officers, being submitted to the- commissioner of the general land office, he may, if satisfied of the truth of the facts, change the entry and transfer the payment from the land erroneously entered to that intended to have been entered, if unsold ; but if sold, to any other tract liable to entry. (4 U. S. Stat. at Large, 31.) The act of May 24, 1828, is supplementary to the act of 1819, and so extends its provisions as to embrace cases where the lands have been patented. (Ib* 301.) The act of January 12, 1825, is entitled “An act authorizing repayment for land erroneously sold by the United States,” and provides that where a purchase is void by reason of a prior sale by the United States, or for want of title thereto in the United States from any other cause, the purchaser' shall be entitled to repayment of any sum paid for any such tract of land, on making satisfactory proof to the secretary of the treasury that the same was erroneously sold in the manner aforesaid by the United States, who is authorized and required to repay such sum of money. (4 Stat. at Large, 80.) These are the several laws on the subject of erroneous entries to which we have been referred, and they are believed to be all that have any application to the question under consideration.
Premising that the application of Carman, the appellant, upon which he relies, was made to the register on 26th May, 1847, and the entry of the respondent in June thereafter, the affidavit of Carman, accompanying his application, states that he applied at the land office at Palmyra and entered a tract of land different from that in dispute (which he describes) in September, 1846, and, being since informed that said tract had been previously purchased by the Hunts, he asks to change said entry and locate in lieu thereof the land in controversy. Annexed to this is the affidavit of Griffith,, to the effect that he believed the appellant did not know the [93]*93tract bad been entered, and that he aimed to enter it in good faith. At the same time, and as a-part of his application, the appellant executed a relinquishment to the United States to this land, in which he recites the act of Congress of January 12, 1825, before referred to, as authorizing repayment for the land he had erroneously purchased. These papers are accompanied also by a joint letter of the register and receiver to R. M. Young, commissioner of'the general land office, referring to the erroneous purchase by Carman of Hunts’ land- and to the relinquishment to the government under the act of 1825.
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Ewing, Judge,
delivered the opinion of the court.
As preliminary to the main and most material point in the case, we will notice briefly an objection to certain evidence, documentary and oral, which was admitted on the trial, and which is assigned for error. The documentary evidence consisted of official letters of the commissioner of the general land office and the first auditor of the treasury, showing the action of that department upon the-application of the ap[90]*90pellant in 1847 — a joint letter of the register and receiver, Mahan and Griffith, of February 1,1850, in reply to a communication from the commissioner of the general land office in reference to the claim of the respondent to the land in controversy, in which they state that the entry of the appellant appears to be regular, through all the records of their office, with certain exceptions, which are noted, and which consist of erasures upon the books in connection with the respondent’s entry; also two letters of Commissioner Butterfield, one of date April 19, 1850, to the register and receiver, in which he announces his decision in the case and that he had caused appellant’s certificate of purchase to be relieved from suspension, the other April 19, 1850, to the respondent Johnson, in which he gives his reasons for the decision announced in the previous letter.
We think the evidence was properly admitted. The letters of Messrs. Young and Collins, first referred to, show the action of the department upon Carman’s application, and the act of Congress by which they were governed in ordering the money to be refunded to him for the land he had erroneously .entered. The other letters are the official correspondence of the commissioner and the officers at Palmyra relating to the contested case of Carman and Johnson, which present their official action in the premises and the grounds upon which that action was predicated. These documents; with others offered and read on the trial, were part of the same transaction, and were admissible as evidence of the official acts of officers, the validity of which was the very question involved.
As to the testimony of Rush relating to the usage of the office, it is sufficient to say that, so far as it was [at] all material or relevant, it was but a statement of what is obvious upon an inspection of the law governing the land officers in such cases, and what must have been the practice of the office if the law had been complied with.
The material point to be considered is whether there was any legal application for the land in controversy pending at [91]*91tbe time the respondent applied for and entered it in June, 1847 ; in other words, whether the previous application of Carman, in May of that year, was such as the law recognized, and had the effect to withdraw or suspend the land from sale until the proceeds of the land erroneously entered by him had been refunded by the government, and to give him the right to apply them to the land in dispute.
This question must be determined by the acts of Congress on the subject of correcting erroneous entries of land and of refunding money by the government to purchasers in such cases.
The first act on this subject is that of March 3, 1819, which provides that in every case of a purchaser of public lands at private sale having entered a tract different from that intended, and being desirous of having the error corrected, he shall apply to the register of the land ofiice, and if it appear to the satisfaction of the register and receiver that an error has been made, and that the same was occasioned by original incorrect marks made by the surveyor, or by the obliteration or change of the original marks and numbers, or that it has, in any otherwise, arisen from mistake or error of the surveyor or officers of the land office, the case is to be reported to the secretary of the treasury, with the testimony and the opinion of the land officers thereon ; and the secretary of the treasury may direct that the purchaser shall be at liberty to withdraw the entry so erroneously made, and that the moneys which had been paid shall be applied in the purchase of other lands in the.same district, or credited in the payment for other lands which shall have been purchased at the same office. (3 U. S. Stat. at Large, 526.) The next act is that of May 24, 1824, which is supplementary to the the foregoing, and extends the provisions of the act of 1819 so as to embrace cases where the error was not occasioned by the acts of the officers mentioned in the latter, and to cases of entries, not intended to be made, by a mistake of the true numbers designed to be entered; and it also provides that the purchaser, under certain restrictions as to [92]*92quantity and time, may have the mistake corrected by making affidavit to the facts of the mistake, and that every reasonable precaution and exertion had been used to avoid the error. This evidence, with the opinion of the land officers, being submitted to the- commissioner of the general land office, he may, if satisfied of the truth of the facts, change the entry and transfer the payment from the land erroneously entered to that intended to have been entered, if unsold ; but if sold, to any other tract liable to entry. (4 U. S. Stat. at Large, 31.) The act of May 24, 1828, is supplementary to the act of 1819, and so extends its provisions as to embrace cases where the lands have been patented. (Ib* 301.) The act of January 12, 1825, is entitled “An act authorizing repayment for land erroneously sold by the United States,” and provides that where a purchase is void by reason of a prior sale by the United States, or for want of title thereto in the United States from any other cause, the purchaser' shall be entitled to repayment of any sum paid for any such tract of land, on making satisfactory proof to the secretary of the treasury that the same was erroneously sold in the manner aforesaid by the United States, who is authorized and required to repay such sum of money. (4 Stat. at Large, 80.) These are the several laws on the subject of erroneous entries to which we have been referred, and they are believed to be all that have any application to the question under consideration.
Premising that the application of Carman, the appellant, upon which he relies, was made to the register on 26th May, 1847, and the entry of the respondent in June thereafter, the affidavit of Carman, accompanying his application, states that he applied at the land office at Palmyra and entered a tract of land different from that in dispute (which he describes) in September, 1846, and, being since informed that said tract had been previously purchased by the Hunts, he asks to change said entry and locate in lieu thereof the land in controversy. Annexed to this is the affidavit of Griffith,, to the effect that he believed the appellant did not know the [93]*93tract bad been entered, and that he aimed to enter it in good faith. At the same time, and as a-part of his application, the appellant executed a relinquishment to the United States to this land, in which he recites the act of Congress of January 12, 1825, before referred to, as authorizing repayment for the land he had erroneously purchased. These papers are accompanied also by a joint letter of the register and receiver to R. M. Young, commissioner of'the general land office, referring to the erroneous purchase by Carman of Hunts’ land- and to the relinquishment to the government under the act of 1825.
Whether there was any legal or valid application by the appellant for the land in controversy depends upon the fact whether the land erroneously purchased previously was or was not the property of the United States at that time; if not, this fact, irrespective of the mere form of the application or what it may set forth, would seem to be decisive of the question. If his entry was void for this reason, he could only ask to have the money refunded by the government. He could not ask to withdraw the entry and have his money transferred to any other land. The.act of 1825 is not supplementary or amendatory of any-previous act, but is substantive and independent, and provides for a class of cases not embraced by any other law. The case of the appellant falls within the provisions of that act, because his purchase was void for want of title in the United States. This was the view of the subject taken by Commissioner Young and the officers of the treasury department, as is evident from their action on the application of the appellant in directing his money to be refunded, and in which reference is expressly had to the act of 1825. The money was refunded, and the land not actually entered until the ,4th February, 1848.
It is manifest that there is no authority under the act of 1819 for refunding purchase money, for land erroneously entered, because, if there was, there would have been no necessity for the act of 1825, which expressly authorizes this to be done. Instead of being refunded under the former act, it [94]*94provides tliat the purchaser may withdraw the entry erroneously made, and the moneys which had been paid shall be applied in the purchase of other lands in the same district, or credited on other lands previously purchased at the same office. What distinguishes this act from the subsequent ones is that the errors must be such as originate with the surveyor or land officers; and that, if the purchaser wishes the mistake corrected, he may have it done on condition that the.purchase money shall be applied to other lands. The distinguishing feature of the act of 1824 is that it provides for errors not occasioned by any act of the surveyor or land officers, and does not therefore embrace this case. Another distinction between this and other acts referred to is, that, upon the correction of the erroneous entry being made, the payment is to be transferred to the tract intended to have been entered, so that, under this act, if an erroneous entry has been made without any agency of the officers, the purchaser, if he wishes it corrected, may have it done by transferring the payment as before stated, but is not entitled to have the money refunded. It is very obvious that there is nothing in any of the acts on the subject that authorizes a change of the entry of one tract to another, unless the party has made a mistake in his numbers at the time of entering, and establishes satisfactorily to the land department that he intended to enter the tract to which he desires the change to be made. The application of the appellant shows nothing of this kind.
In this view of the acts of Congress and of the application of Carman, it follows that the land in. controversy was subject to entry on the 21st June, 184T; and the respondent having paid his money and obtained a certificate of purchase, he acquired rights which could not be divested by the acts of the land officers or of the appellant. The application and entry of the latter was a nullity and gave him no legal or equitable right. The land, in contemplation of law, was in the same condition, when the respondent applied for it, as though the appellant had made no application or made no [95]*95attempt to become the purchaser, and the sale to him was ■unauthorized and improvidently made.
Upon an issue submitted to the jury on the trial of the cause, they found that the appellant had notice of the prior right of the respondent, and that the patent under which he claims title was obtained by fraud. Under such circumstances, the entry of the respondent will prevail over the patent granted to Carman, and is of course unaffected by any acts of the land officers at Palmyra or the commissioner of the general land office, which, as we have seen, were without authority of law.
Judge Scott concurring,
the judgment will be affirmed.