Stoby, Special O. «T.
Gaines, in an action of ejectment, in the Hot Springs circuit court, recovered judgments against Hale and tenants, and Rector and tenants, for the possession of the south-west quarter of' section 33, in township 2, south of range 19 west, including-the Hot Springs, which judgments were affirmed by the Supreme Court of this State and the United States.
Hale.and Rector filed separate bills, each claiming an equitable title to the land in controversy, superior to the legal title of Gaines; prayed that their rights might be declared, their title quieted, and that a perpetual injunction issue restraining-the execution of the judgment in ejectment.
An interlocutory injunction was granted.
The chancellor decreed that TIale’s claim, to the quarter section in controversy, was good; that his title should be quieted, and that a perpetual injunction should issue restraining the enforcement of the judgment in ejectment against him. The chancellor further decreed that a certain portion of Rector’s claim, not in conflict with Hale’s, to lands outside of the southwest quarter of section 33, in township 2, south of range 19 west, had been established, and that his title to so much of his Hew Madrid claim should be quieted. Gaines and Rector both appealed from the decree, so far as it confirmed Hale’s title to the quarter section in controversy.
The rights of the claimants are before the court for settlement, and we will dispose of them in their chronological order.
Eor this purpose, we will first examine the right of John C. Hale, who represents what is proven as the Percifull pre-emption claim.
This claim is founded upon the act of April 12, 1814, section five of which act is in the following words: “That every person, and the legal representatives of every person, who has actually inhabited and cultivated a tract of land lying in that part of ihe State of Louisiana, which composed the late territory of Orleans, or in the territory of Missouri, which tract is not rightfully claimed by any other person, and who shall not have removed from said State or territory, shall be entitled to the right of pre-emption in the purchase thereof, under the same restrictions, conditions, provisions and regulations, in every respect, as is directed by the act entitled “An act giving the right, of pre-emption in the purchase of lands to certain settlers in Illinois territory,” passed, February 5, one thousand eight hundred and thirteen, (1813). U. S. St. L. vol. 3, pp. 122-3.
Several objections have been raised to the Percifull claim, which we will pass, and proceed at once to consider the question which we believe to be decisive of Hale’s right to the land in controversy, viz: Was the south-west quarter of section 33, in township 2, south of range 19 west, included in the act of April 12,1814?
At this time the Indian title to the lands south of the Arkansas river had not been extinguished.
By treaty, made August 24, 1818, between the United ■States and the Quapaw Indians, approved by the President op the fifth of January, 1819, these lands were formally ceded to the government.
For the purpose of determining this question, it may be well to consider the status or condition of the different Indian tribes in the relation they bear to the United States.
Chief Justice Marshall, in the case of the Cherokee Nation v. The State of Georgia, 5 Peters, 17, says : “Though the Indians are acknowledged to have an unquestionable and heretofore unquestioned right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government, yet it may well be doúbted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may more correctly, perhaps, be denominated domestic dependent nations. Ihey occupy a territory to which we assert a title independent of their will, which must take effect, in point of possession, when their right of possession ceases. Meanwhile they are in a state of pupilage.”
Coinciding with their status, as defined by Chief Justice Maeshall, is the language in Gaines et al. v. Nicholson et al. 9 How. 365, where the court, speaking of the effect of a reservation in an Indian treaty to a specific tract of land, say: “There is no doubt but that all persons in whose behalf reservations were made under the treaty, and who were residents upon any particular tract, and had made improvements thereon at its date, were entitled to the section, including their improvements, in preference to any other right that could have been previously acquired under the government, because the land embraced within the section was so much excepted from the cession. No previous grant of Congress could be paramount, according to the rights of occupancy which the government has always conceded to the Indian tribes within her jurisdiction.”
It appears, then, that the United States holds the fee simple of the land occupied by the Indian tribes; and while it is the policy of the government to recognize the right of occupancy until it may be extinguished by voluntary cession, the nation may, if it see fit, disregard this right, and, before a cession by the Indians, convey either an unencumbered title in fee simple, to take effect immediately, or a title -subject to the Indians7 right of possession, and to take effect only when the Indians, by voluntary cession, shall have yielded their title.
The question before us, however, is not one of power, but of intention. We think the cases of Fletcher v. Peck, 6 Cranch, 87; Lattimore v. Paleet, 14 Peters, 4: Clark et. al. v. Smith, 13 Peters, 195, clearly show that the United States may convey the land before the Indian title has been extinguished. The policy of the government, however, and one that is founded in principles of justice and humanity, has been to protect such lands from settlement, and not to convey the title until the possessory right of the Indians has been extinguished.
Such being the policy of the government, it is not to be pi’e-sumed that the United States intended that the act of April 12, 1814, (in which it expressly provided that the right of preemption should not extend to any tract which is rightfully claimed by any other person,) should extend to lands in the occupancy of the Quapaw Indians.
At the time of the passage of the act, Pereifull’s settlement was antagonistic to their claim, the justness of which claim the United States, and all persons claiming under them, are estopped, by the treaty of the 24th of Agust, 1818, from denying. We are nob without authority to sustain us in the position we have taken.
Thus, in the case of Danforth v. Wear, 6 Wheat., 675, the court say: “As to lands surveyed within the Indian boundary, this court Ras never hesitated to regard all such surveys and grants as wholly void.”
In a late case, Threadgill v. Pintard, 12 How., 37, the court, speaking of the same territory acquired from the Quapaw Indians, and of the act of April 12, 1814, say: “It must be conceded that the first settlers upon this land, the Indian title to it not having been extinguished, could claim, under the act of 1814, no pre-emption right. No laws giving to settlers a right to pre-emption, can be so construed as to embrace Indian lands. Such lands have always been protected from settlement and survey by penal enactments.” See Preston v. Browder, 1 Wheat., 115: Danforth v. Thomas, ib. 115.
We think the authorities cited, clearly show, that the act of 1814, did not apply to the land on which Percifull had “inhabited and cultivated” prior to April 12, 1814, and that, consequently he acquired no rights under the act. On the 20th of April, 1832, Congress passed an act, the third section of which provided, “that the Hot Springs, in said county, together with four sections of land, including said Springs, as near the center thereof as may be, shall be reserved for the future disposal of the United States, and shall not be entered, located or appropriated for any other purpose whatever.” 4 Stat. at L., 505.
Percifull did not claim under any act prior to the act. of 1832, reserving the Hot Springs, except the act of April 12, 1814. In fact, neither Percifull nor his representatives made any attempt to pre-empt the land until more than six years after it had been reserved from entry and sale.
In March, 1843, Congress passed an act which provided; “that every settler on land, south of the Arkansas river, should be entitled t© the same benefits accruing under the provision of the pre-emption act of 1814, as though they had resided north of said river. 5 St. at L., 603.
The counsel for Hale do not insist that Congress, by a general law, in 1843, intended to repeal a special one, the reservation act of 1832, but they declare that Percifull had an inchoate right under the act of 1814, which, by force of the act of 1843, became a vested interest and relates back to the passage of the act of 1814.
We cannot agree with counsel in this respect, for we think we have clearly shown that on the 20th day of April, 1832, Percifull had no right, inchoate or otherwise, to the land in controversy, that'could affect the power of Congress to withdraw it from entry and sale. The effect of the third section of the act of 1843, was the same as though an act had been passed, similar in its terms to the act of 1814, authorizing pre-emptions on the south bank of the Arkansas river, and rights vested under it, as against the government, only from and after its passage. The act of April 20,1832, having reserved the Hot Springs from pre-emption, and it being conceded that this reservation was not repealed by the act of 1843, it is apparent that the act of 1843, did not apply to the four sections of land including the Hot Springs as their center.
if we needed any assurance of the correctness of our conclusion we have it in the case of Hale v. Gaines, 22 How., 160, wherein the court, after fully considering the effect of the act of March, 1843, upon Percifull’s interest to the land in controversy, say-: “A claim is set up in defense, that John Percifull was entitled to a preference of entry, under the act of 1814, which act, it is insisted, was revived by the act of 1843. Suppose that Percifull’s right to appropriate the land in dispute was undoubted, and that the register and receiver had allowed the heirs of Belding to enter wrongfully, still the courts of Arkansas, in this action of ejectment, had no right to interfere and set up Pereifull’s rejected claim. But this is of little consequence, as, when the act of April, 1832, was passed, reserving the Hot Springs from sale, Percifull had no vested interest in the land that a court of justice could recognize.”
Hale applied to enter the section in controversy, in October, 1850, under a Cherokee pre-emption claim, founded upon the act of the 26th of May, 1824, concerning pre-emption rights in Arkansas territory, and the supplemental act of March 3, 1843. The counsel for Hale, very properly, appear to place but little reliance upon this claim, since, more than eighteen years previous to the attempt to locate the Cherokee pre-emption, the land in controversy had been reserved from entry and sale.
The next question that presents itself for our consideration is, what rights has Rector, who claims the equitable title, if any there be, that may have accrued to Langlois, or his representatives, under a New Madrid certificate, No. 467, for two hundred arpents (or 170 15/100 acres) of land.
A full history of Rector’s claim, and the grounds on which he relies, may be found in 19 Ark., 70.
His claim is based upon the act of February 7, 1815, (3 Stat. at Large, 211,) which provided that any person owning land in New Madrid county, Missouri territory, materially injured by earthquakes, should be authorized to locate the like quantity of land on any of the public lands of that Territory, “the sale of which is authorized by law.” The second section of the act provides : “That whenever it shall appear to the recorder of land titles for the Territory of Missouri, by the oath or affirmation of a competent witness or witnesses, that any person or persons, are entitled to a tract or tracts of land under the provisions of this act, it shall be the duty of said recorder to issue a certificate thereof to the claimant or claimants; and upon such certificate being issued, and the location made, on the application of the claimants, by the principal deputy surveyor for said Territory, or under his direction, whose duty it shall be to cause a survey, thereof to be made, and to return a plat of each location made to the said recorder, together with a notice in writing, designating the tract or tracts thus located, .and the name of the claimant on whose behalf the same shall be made; which notice and plat the said recorder shall cause to be recorded in his office, and shall receive from the claimant, for his services on each claim, the sum of two dollars for receiving the proof, issuing the certificate and recording the notice and plat as aforesaid.”
Section 3 provides, “ that it shall be the duty of the recorder of land titles, to transmit a report of the claims allowed and locations made, under this act, to the commissioner of the general land office, and shall deliver to the party a certificate,, stating the circumstances of the case, and that he is entitled to a patent for the tract therein designated; which certificate shall be filed with the said recorder, within twelve months after date, and the recorder shall, thereupon, issue a certificate in favor of the party, which certificate being transmitted to-the commissioner of the general land office, shall entitle the party to a patent, to be issued in like manner as is provided by law for other public lands of the United States.”
Rector prefers his claim under two surveys, one made by J. S. Conway, deputy surveyor, on the 16th of July, 1820, and the other, by John C. Hale, deputy surveyor, on the 28th of February, 1838.
The survey of 1820, was not returned to the recorder of land titles, and Rector’s claim under this survey, in the language of his counsel, is reduced to a single question: “Was it indisputably necessary that the plat and certificate of survey, made upon this Hew Madrid warrant and location, should have-been returned to the recorder’s office, in order to give the applicant an incipient right and inchoate title to the land so-located by the actual survey ?”
This question has been repeatedly passed upon and settled in the cases of Bagnell v. Broderick, 13 Peters, 346; Barnes v. Gamble, 3 How., 51; Lessieure v. Price, 12 How., 60; Hale v. Gaines, 22 How., 146; Rector v. Ashley, 6 Wallace, 142, that claimants, under the act of 1815, acquired no rights whatever,, until the plat and certificate of survey were presented to the recorder of land titles and approved by him. The Supreme Court of the United States is the authoritative expounder of the acts of Congress, and these decisions are a sufficient answer to the learned argument, that the survey is the location, and that rights vest as soon as the survey is made, rather than from the time a return of the plat is made to the recorder and approved by him.
Counsel for Beetor have filed two briefs, of fifty-eight and sixty-eight pages respectively, in which they have insisted that the Supreme Court of the United States, commencing with the case of Bagnell v. Broderick, down to the case of Rector v. Ashley, have omitted to notice the act of April 29, 1816, and its effect upon the act of February 7, 1815.
If this were true, it would certainly be a most remarkable case of judicial oversight. A careful examination of the act, however, will show that counsel are mistaken, and that the practical effect of the act of 1816, so far as it changes or modifies the act of 1815, is simply to abolish the office of principal deputy surveyor and all other deputy surveyors’ offices that had previously been established under either the Spanish or Federal government, within the limits of the Territories of Missouri and Illinois, and provides for the office of a surveyor of said Territories, to which all the plats and papers of the different surveyors’ offices which had been abolished should be sent, and that the surveyor, so provided for, should perform the duties of the principal deputy surveyor.
The practice, after the passage of the act, was not changed. “The warrant or location certificate issued from the recorder’s office, and there it was returnable; that the plat and certificate were returned and recorded; that officer issued the patent certificate; in that office the law required all official business to be transacted, and not in the surveyor’s office.” That the notice of location, and plat and certificate, were recorded in the surveyor’s office is true, and it was proper. It was not done, however, to the end of furnishing evidence of title to the claimant, but to have evidence there to show that the land was appropriated according to the Hew Madrid act, and for the convenience of the surveyor’s department. The plain meaning of the law is as above stated, nor can its import be changed by the practice pursued in the surveyor’s office.
The mistake made by the counsel for Beetor, has arisen from their having construed the words, in the act of 1816, “any offiee heretofore established or authorized for the purpose of executing or recording surveys of land, within the limits of the-Territories of Missouri 'and Illinois,” to mean all recorder’s offices, rather than surveyor’s offices, thi’ough ignorance of the fact that the notice of location and plat and certificate were recorded in the surveyor’s office, not to the end of furnishing' evidence of title to the claimants, but to have evidence there to show that the land was appropriated according to the Hew Madrid act, and for the convenience of the suiweyor’s department. Lessieure v. Price, 12 How., 71.
The next question that presents itself is, what right did Rector ■ acquire under this second survey, made hy John 0. Hale, in February 28, 1838?
In the case of Hale v. Gaines et al. 22 How. 158, Hale, who hy agreement with Rector, has a two-fifths interest in the H.ew Madrid claim, pressed upon thé court all the legal and equitable grounds on which Rector bases his right of relief.
Justice CatROn, who announced the decision of the court, very carefully considered and passed upon the rights that had accrued under the Hew Madrid certificate. He says: “The-defendant (Hale) relied upon a survey made in June, 1838, founded upon a Hew Madrid certificate for two hundred arpents. To support this survey an application was produced,, dated 27th January, 1819, signed by S. Hammond and Elias Rector, addressed to "William Rector, surveyor of the public lands, etc., asking to have surveyed and be allowed to enter the recorder’s certificate for two hundred arpents, granted by him to Francis Langlois, or his legal representatives, and dated the 26th of November, 1818, (No. 467.) The survey to be m^de in a square tract, the lines to correspond to the cardinal points, and to include the Hot Springs in the center. In 1818 the springs were in the Indian country, to which, of course,, no public surveys extended. And, as the act of 1815, providing for the Hew Madrid sufferers, only allowed them to enter their warrants on lands, the sale of which “was authorized by law, the unsurveyed lands could not be legally appropriated, and of necessity the surveyor general disregarded the application to Rave a survey made by Langlois, and thus the claim stood from 1818 to 1838.”
The act of April 26,1822, validated locations of New Madrid certificates then existing, and which had been made in advance of the public surveys, but the second section of the act declared that future locations should conform to the public surveys, and that all such warrants should be located within one year after the passage of the act. As the public surveys, then existing in Missouri and Arkansas territories, were open to satisfy these claims, there was no difficulty in complying with the act of 1822.
Reliance is placed on the act of Congress of March, 1843, to maintain the survey of 1838, of the New Madrid certificate. That act provides that locations, before that time made on New Madrid warrants, on the south side of Arkansas river, if made in pursuance of the act of 1815, in other respects, shall be perfected into grants in like manner as if the Indian title to the land on the south side of the river had been completely extinguished at the time of the passage of said act of 1815.
The act of 1843 does not apply to the survey and location of Langlois, made in 1838, for several reasons :
First. The sale of the land thus surveyed was not authorized by law — the act of April 20, 1832, having reserved from location or sale the Hot Springs, and four sections of land including them, as their center.
Second. The attempted location was void, because barred by the act of 26th of April, 1822, 'which act was not repealed or modified by the act of 1843. This act referred to locations made on the south of the river Arkansas, of lands regularly surveyed and subject to sale, and which locations had been made on or before the 26th of April, 1823, when the bar was interposed.
"We are of the opinion that the New Madrid survey of 1838 was altogether invalid, and properly rejected by the State courts. Barry v. Gamble, 3 How. 51; Rector v. Ashley, 6 Wallace, 142.
We Rave not forgotten that in several of the eases cited, it was the legal title which was decided, and that in the present case, it is the equitable title we are required to pass upon; but, as was remarked in Rector v. Ashley, 6 Wallace, 151, the rights of claimants are to be measured by the acts of Congress, and not exclusively by what he may or may not be able to do; and if a sound construction of that act shows that he acquired no vested interest in the land until the officers of the government had surveyed the land, and until that survey is filed in the office of the recorder, and approved by him, then, as claimant’s rights are created by that statute, they must be governed by its provisions, whether they be hard or lenient.
If it be possible for any case to come within the rule of res adjudicata, this appears to do so.
Hale and Rector allege, in their bills, that they have made valuable improvements on that portion of the land in controversy, now in their possession; that Belding has no rights, legal or equitable, to the land in controversy, and pray the court to grant an injunction perpetually restraining the enforcement of the judgments in ejectment.
It is insisted, on the other hand, that the validity of Beld-ing’s claim is not now in question; that the plaintiffs must recover on the strength of their own title, and not on the weakness of that of the defendant; that Hale and Rector are trespassers; that they have no rights to maintain, no injuries to redress.
We concede the legal position taken by the counsel for Beld-ing to be true, but not the facts; settlers making valuable improvements on the public lands, which at the time are not reserved for the exclusive use of the government, have not been regarded as trespassers. This State, by statute, treats and protects such improvements as property, and enforces the right of possession as against all persons who have neither a legal or equitable title to the land.
In the case of Pelham, adm’r. v. Wilson, et al., 4 Ark. 289, the court say : “The interest that a person has in an improvement, on the public land, is of a peculiar kind, known only to our laws. It is a possessory right against all the world but the United States.”
In Cain v. Leslie, 15 Ark. 312, the court say: “A sale of an improvement on public land is recognized by statute, and the purchaser acquires a possessory right which the law protects, and which is good against every body but the government or its grantee.” Hughes v. Sloan, 8 Ark. 146; McFarland v. Matthias, 10 Ark. 560.
The Federal government, while it punishes those who are purely trespassers, and commit depredations on the public lands, has uniformly rewarded those who, in good faith, have made valuable improvements. If the legal representatives of Belding have any rights here, they have sprung from just such trespasses, and it is difficult to perceive why the same act in Belding should be rewarded, and in Hale and Rector treated as an offense.
It appears that Hale and Rector have made improvements worth fifty, thousand dollars, and a court of equity that would permit a third party, without right, through a voidable and inequitable judgment, to take possession of this property, would sadly fail in executing the object for which it was established. Though neither Hale nor Rector have any rights which, measured by the acts of Congress, have as yet matured into a title to the land, it does not. follow that they have no privileges or immunities whatever. They are tenants, at sufferance, of whoever may have the legal title, by the laws of this State, entitled to the possession of their improvements, and cannot be ousted except by some one who has a superior right of possession.
We [shall therefore proceed to examine what rights may have accrued to Gaines and others, as the legal representatives of Belding; and if we find that they have no legal or equitable claim, as against Hale or Rector, to the lands in their possession, that the judgment at law is irregular and voidable, as it is alleged to be, the prayer for a perpetual injunction will be granted.
The judgments at law in the Beldings’ favor, were based upon a certificate of entry, which, on the 7th of June, 1860, by order of the secretary of the Interior to the commissioner of the general land office, was cancelled.
The act of March 3, 1849, gives to the secretary of the Interior the power of supervision and appeal in all matters relating to the general land office, co-extensive with the authority of the commissioner, to adjudge, and it is well settled that either the commissioner of the general land office or the secretary of the interior may cancel a certifica^ of entry, or a patent, whenever the same has been improperly issued. The land officers perform a ministerial duty, and, though it may be conceded that when rights have vested, such cancellation would not affect or divest those rights, yet, if erroneously issued, the error should be corrected, in order that parties who have no legal or equitable title to the land, may not, by means of a worthless paper, oust those who have rights which are protected either by Federal or State laws. Maguire v. Tyler, 1 Block, 195; Dozwell v. De LaLauza et al., 20 How. 29; Belle v. Hearne et al. 19 How. 252.
It is therefore proper for us to inquire whether the action of the secretary of the Interior, in cancelling the certificate of entry, was correct, and the effect o£ such cancellation.
Belding’s pre-emption is claimed under the act of 29th May, 1830, which provides “that every settler or occupant of the public lands, prior to the passage of this act, who is now in possession, and cultivated any part thereof in the year 1829, shall be, and he is hereby authorized to enter with the register of the land office, for the district in which lands may lie, by legal subdivisions, any number of acres, not more than one hundred and sixty, or to a quarter section, to include his improvements, upon paying to the United States the minimum price of said land.”
Section 3 provided “that prior to any entries being made, under the privileges of this act, proof of settlement or improvement shall be made to the satisfaction of the register and receiver.”
It is admitted that Belding failed to make the proof, required by the act, until after the passage of the reservation act of' April 20, 1832. The question then presents itself, when does, a claimant, under the act of May 29,1830, acquire a vested interest in the land?
We think there can be no doubt that Congress did not intend' that the gratuity should vest in the claimant until after he had made proof of settlement or improvement to the satisfaction of' the register and receiver, which, by the terms of the act, is a condition precedent to the right of entry.'
The fourth section expressly provides that the provisions of' the act shall not be available to any person who shall fail to make the proof and payment required, before the day appointed for the commencement of the sale of lands, including the tract on which the right of pre-emption is claimed; and the fifth section limits the operation of the law to one year.
If the claimants’ rights grew out of the settlement and vested on the passage of the law, these sections are mere nullities; for, the right having vested, the commencement of the land sales, or the lapse of a year, would not destroy it. Tho passage of the act gave to settlers who had cultivated in 1829, and w^ere still in possession, the privilege of pre-empting, if they saw fit so to do, but they were required to exercise this privilege within one year, and before the commencement of' the land sales. On making proof to the satisfaction of the* register and the receiver, the right to an entry vested, but failing to make this proof within one year, and beftne the commencement of the land sales, the privilege of a pre-emption was at an end.
It is objected to this ruling that, as the lands were not surveyed at this time, and that Eelding, therefore could not comply with so much of the act as required proof of settlement or improvement before the 29th day of May, 1831, and as he had done all that it was in his power to do, his right vested without making such proof. But as we have before held, the rights of claimants must be measured by the acts of Congress, and must be governed by its provisions, whether they be hard or lenient.
We have not overlooked the fact that Judge "Walkeu, in delivering the opinion in the case of Gaines et al. v. Hale, 16 Ark. 21, very strongly intimated that the reservation act of 1832, did not affect Belding’s right to a pre-emption, and that his interest vested from the passage of the act of 1829. He relies on the case of Lytle et. al. v. The State of Arkansas et. al. 9 How., 314, to sustain him in this opinion.
We think a careful examination will show a material difference in the two cases.
In the latter case, Cloye’s heirs, in addition to their having cultivated the land in 1829, and being in possession in 1830, proved settlement to the satisfaction of the register and receiver, and made payment. It differs also in this, that Governor Pope did not attempt to loeate, under the act of the 15th of June, 1832, until after the passage and during the life of the act of 14th of July, 1832, which extended the time for one year from the date of the act, in which to make proof of settlement or improvement to the satisfaction of the register and receiver.
Justices CatRON, Nelson and GRIER, dissented from the opinion, and insisted that Cloye’s heirs had no vested right in the land at the time the act of June 15, 1832, was passed.
The basis on which Judge Walkeu founds his opinion, we think, sustains our decision. ■ Quoting from the case of Lytle v. The State of Arkansas, he says: “The claim of a pre-emption is not that shadowy right which, by some, it is considered to be. Until sanctioned by law it has no existence as a substantial right. But when covered by the law, it becomes a legal right subject to be defeated only by a failure to perform the conditions annexed to it.”
Belding failed to perform the conditions annexed ; that is, to make proof of settlement or improvement, to the satisfaction of the register and receiver, and, therefore, had no rights after the time allowed by the act to perform the conditions annexed had passed.
Belding, therefore, acquired no vested interest in the land prior to the 20th day of April, 1832, at which time Congress withdrew the land from entry or sale. No act passed after the act of April, 1832, could vest an interest in the four sections of land, including the Hot Springs as their center, without repealing that act.
No subsequent act did repeal the act of April, 1832.
It then follows, that, as the land in controversy had been withdrawn by act of Congress from entry or location, and appropriated for the future disposal of the United States, the action of the register and receiver, in undertaking to grant preemption in land in which the law says they shall not be granted, though made under the direction of the commissioner of the general land office, was erroneous and void, and the action of the secretary of the Interior, in cancelling the certificate of entry, was proper.
The certificate of entry having been properly cancelled, the judgment at law based upon it must fall.
By the laws of this State, the certificate was evidence, which could not be attacked in a court of law, of an inchoate right, which might mature into a perfect title, sufficient to maintain the action of ejectment.
It is well settled that any fact which clearly proves it to be against conscience to execute a judgment at law, and of which the injured party could not have availed himself in a court of law, or of which he might have availed himself, but was prevented by fraud or accident, unmixed with any fault or neglect in himself or his agents, will authorize a court of equity to interfere by injunction. Maine Insurance Company v. Hodgson, 7 Cranch, 332; Adams’ Eq., 5, Am. ed. 391; and cases cited.
It is, therefore, the duty of this court to declare the rights' ■of the parties as though this erroneous certificate of entry had not been made.
The rights of parties in the public lands are set forth by the laws of this State, under the title of ejectment, the second section of which provides, that: “The action of ejectment may •also he maintained in all cases where the plaintiff claims possession of the premises under or by virtue of, first, an entry añade with the register and receiver of the proper land office of ■the United States ; second, a pre-emption right under the laws of the United States; third, toilere an improvement has been made by him, on any of the public lands of the United States, whether the lands have been surveyed or not, and where any ■other person, than those to whom the right has been given by ’the predeeding claims of this section, is in the possession of such improvements.”
"We have just decided that none of the parties to this suit, so far as the record shows, are entitled to the possession of the Hot Springs and four sections of land including them as their center, by virtue of an entry made with the register and receiver of the proper land office of the United States, (the Belding certificate of entry having been cancelled,) nor by ■virtue of a pre-emption right under the laws of the United •'States.
The record abundantly shows, however, that all of the parties have made improvements upon different portions of the land, and, under the laws of this State, have a peculiar title, protected by the courts, and are entitled to the possession of their improvements until ousted by the Federal government.
It is urged that the plaintiffs in the suits at law, cannot be inhibited from enforcing their judgment, for the want of a special prayer for a perpetual injunction, but an examination of the record will show that Hale, on page-of his bill, prays as follows: “May it please your honor to grant unto your orator, the State’s most gracious writ of injunction, issuing out of and under the seal of this honorable court, commanding)''the said William H. Gaines, and Maria, his wife, Albert Belding, Henry Belding and George Belding, heirs of Budovicus Belding, and Henry M. Rector, their counsellors, attorneys, solicitors and agents, commanding them, and each of them, absolutely to desist and refrain from proceeding to have any writs of restitution or writs of possession, or mandate of any kind, of and concerning the possession of the land aforesaid, issued or in any manner executed against your orator, until the final termination of this suit in equity, and that they be 'perpetually enjoinedand Rector, on page 55, of his bill, prays, “that the said judgment obtained in the said action of ejectment be perpetually enjoined; and such plaintiffs, their agents and attorneys, be enjoined from issuing out process to obtain, or obtaining possession of the premises named in the suit.”
We think these prayers may well be held to be sufficiently specific, as prayers for a perpetual injunction, and, even if not so construed, we think there would be no good reason for not declaring the judgments to be void, and thereby prevent their enforcement.
A writ of injunction may be described to be a judicial process, whereby a party is required to do, or refrain from doing, a particular thing, and the most common sort, is that which operates as a restraint upon the party in the exercise of his real or supposed rights, and this is sometimes called the “remedial writ of injunction.” The other kirid, commanding an act to be done, is sometimes called the judicial writ, because it issues after a decree, and is in the nature of an execution to enforce the same.
It appears to be the settled practice, not to grant the remedial writ, unless it is specially prayed; because it has been said, the defendant might make a different case by his answer against the general words of the bill, from what he would have done against the. specific prayer for an injunction; but this is not true of the judicial writ, which is used for the purpose of enforcing the decree of the court, and it may be issued under the general prayer for relief.
The entire frame and. prayer of Hale’s, as well as Rector’s hill, is to have the judgments at law, and all the claims of title set up by other parties, declared to be void, to have his title defined and enforced, and the judicial writ, which is simply a decretal qrder enforcing the rights of the complainants,, is granted as a necessary consequence of the decree.
It is, therefore, considered that the decree of the Hot Spring circuit court be, and the same is hereby set aside ; that the judgments at law, and all claims of title made by parties to this suit, except as hereinafter specified, be declared to be void; that each and all of the parties to this‘suit, be and are decreed to have a possessory right and title to the respective impi’ove-ments made by them, as against each other; that each party pay his own costs, and that all necessary orders be made to enforce this decree.
It is, therefore, considered that the decree of the Hot Spring circuit court be, and the same is hereby set aside.
And, it is further ordered, that each and all of the parties-to this suit, be decreed to have title to the respective improvements made by them, as against all parties but the United States, and that all parties be and are inhibited from enforcing the judgments at law, and that each party pay his own costs.