Caton, J.
This is the same case which was before us in 15th Ill. R. 572, under the title of Phelps v. Smith, and it is brought here again, as the only channel through which it may be taken to tlie supreme court of the United States, whose prerogative it is, to give a final and authoritative construction, to all acts of congress. If we have misconstrued the meaning of the words, “legal representatives,” as used in the acts of congress under consideration, it will afford us pleasme to be set right by that court, and we shall be happy to afford every facility for talcing the case to that tribunal. Although the case has again been elaborately argued, and has been carefully reviewed by this court, we have been unable to arrive at any other conclusion than that expressed, when the case was formerly before us. In expressing the views of this court on that occasion, I said, “ Nothing can be more clear to my mind than that the term ‘legal representative’ as used in this law, was designed to describe a party in interest, whose identity was uncertain, and that by that description it was intended to designate the person or party, who had succeeded to the right of the deceased, and by virtue of which right alone, the law of congress authorizes the land to be entered. It was the design of the law, that no one should be permitted to enter the land, except the party who had received the permit or had made the improvement, or one who had in some legal mode succeeded to the right of such party. If any others were allowed to enter it, it was a fraud upon the law. Such is the undoubted meaning of the act of congress, and it is equally clear, that the phrase ‘legal representative’ must receive the same construction, when used in the judgment or certificate of the commissioners, and in the patent issued thereon. It may be true, that the commissioners had the right to award the preemption to a particular person by name, as the legal representative of Guyard, and that had the patent issued to such person, by name, it would have been conclusive at least in a court of law, although another might be able to show that he was, in fact, the true legal representative. Indeed, the presumption must be, that when it was satisfactorily shown who was, in truth, the legal representative of the deceased; the certificate would be granted directly to such person. And whenever the mere descriptive term ‘legal representative’ was used, it shows that the commissioners were in doubt, as to who, in truth, held the right which had once existed in the deceased ; or at least, that they did not choose to determine that question, but rather chose to leave it open, to be determined by further investigation by courts of law. And such, indeed, was the only prudent course for the commissioners to pursue; for it was well known then, as it is manifest now, that claims were likely to be preferred and prosecuted by those, who would, apparently succeed to the rights of the deceased as the heirs, executors or administrators, in total ignorance of the fact, that the deceased had, in his lifetime, granted away to others, the very rights which they were claiming to exercise. Although the commissioners may have supposed, and Morehouse himself may have believed, that he, as administrator, was, in truth, the legal representative of Guyard, as respects this right of preemption; yet if he was, in truth, not such legal representative, such supposition or belief, could not change the fact or the law, and make him the legal representative, and enable him, in truth a stranger, to take the grant by such designation. Suppose the law had authorized it, and the certificate had been given and the patent issued to ‘the heirs at law of Guyard,’ would proof that any stranger had appeared before the commissioners and prosecuted the claim as heir, enabled him to take the grant by that designation, simply because the commissioners supposed he was the heir and as such was entitled to the right i It is the patent which grants the land, and that was the act of the government and not of the commissioners. And we cannot presume that the government had any intent in issuing the patent, beyond that which is expressed on its face. The grantee is not named, but is described in the patent, and he, and he alone, who bears and can maintain that description, can take by the grant. The grant is to the legal representatives of Eobert F. Guyard, and it would be strange indeed, if the one who is such representative should not be allowed to take the thing granted; but that it should go to one who, as a matter of law and of fact, is not the legal representative to whom the conveyance runs.”
The fact that Morehouse was the administrator of Guyard, and that he presented the claim before the commissioners, and got the preemption allowed, and subsequently made the entry and paid the~purchase money at the land office, has been urged upon the present argument with peculiar emphasis, as showing, that he alone was meant in the certificate of the commissioners, and in the patent, by the descriptive designation of “legal representatives of Robert P. Guyard.” To our comprehension, this position has been satisfactorily answered by what has been already quoted. We take it to be a matter, at this day not open to controversy, that whoever succeeded to the right of Guyard, as the original settler, either by operation of law or by grant, is his legal representative, within the meaning of the act of congress, and, consequently, within the meaning of the certificate of the commissioners and of the patent; for the expression must have the same meaning in each. Row if Phelps was the grantee of Guyard, and as such was his legal representative, the right was as absolutely vested in him, as if he had been the original settler, and there was no right left in Guyard, which could, descend to his heirs, or pass to his administrator, any more than if he had not been the original settler, but had always been a stranger to it. If his grant to Phelps divested, him of his right of preemption and conferred it upon his grantee, there was nothing left, which could go to his heirs or administrator. They could acquire no right upon his death, for he had none at that time. Rothing but the decision of the highest tribunal in the government, can convince me, that something can be made out of nothing; that a right could be acquired where none existed. To my mind it is a question which will not bear argument, that More-house was not the legal representative of Guyard as to this preemption right, but that Phelps was. Indeed, that has not been controverted during the whole course of the argument, except so far as objection was taken to the deed from Guyard to Phelps, for the want of an expressed consideration, and which we do not think is tenable. Holding that deed to be good, no right could pass to Morehouse as the legal representative of Guyard, for none existed in his intestate. Still he was not an intermeddler without right, in the claim which he presented and prosecuted before the commissioners. He was an undisputed owner in his own right of one undivided half of the preemption right, and in establishing his own right, he necessarily and unavoidably also established the right of the owner of the other undivided half, whoever he might be. His appearance before the commissioners, and prosecution of the claim, and subsequent entry of the land in the name of himself and of the legal representatives of Guyard, was perfectly consistent with his true position, and the rights of Phelps, who was that legal representative. Indeed the language of the certificate and of the patent, is inconsistant with the claim now set up by Morehouse, that he was intended as the sole preemptor and grantee. It is “ to the legal representatives,” etc., in the plural.
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Caton, J.
This is the same case which was before us in 15th Ill. R. 572, under the title of Phelps v. Smith, and it is brought here again, as the only channel through which it may be taken to tlie supreme court of the United States, whose prerogative it is, to give a final and authoritative construction, to all acts of congress. If we have misconstrued the meaning of the words, “legal representatives,” as used in the acts of congress under consideration, it will afford us pleasme to be set right by that court, and we shall be happy to afford every facility for talcing the case to that tribunal. Although the case has again been elaborately argued, and has been carefully reviewed by this court, we have been unable to arrive at any other conclusion than that expressed, when the case was formerly before us. In expressing the views of this court on that occasion, I said, “ Nothing can be more clear to my mind than that the term ‘legal representative’ as used in this law, was designed to describe a party in interest, whose identity was uncertain, and that by that description it was intended to designate the person or party, who had succeeded to the right of the deceased, and by virtue of which right alone, the law of congress authorizes the land to be entered. It was the design of the law, that no one should be permitted to enter the land, except the party who had received the permit or had made the improvement, or one who had in some legal mode succeeded to the right of such party. If any others were allowed to enter it, it was a fraud upon the law. Such is the undoubted meaning of the act of congress, and it is equally clear, that the phrase ‘legal representative’ must receive the same construction, when used in the judgment or certificate of the commissioners, and in the patent issued thereon. It may be true, that the commissioners had the right to award the preemption to a particular person by name, as the legal representative of Guyard, and that had the patent issued to such person, by name, it would have been conclusive at least in a court of law, although another might be able to show that he was, in fact, the true legal representative. Indeed, the presumption must be, that when it was satisfactorily shown who was, in truth, the legal representative of the deceased; the certificate would be granted directly to such person. And whenever the mere descriptive term ‘legal representative’ was used, it shows that the commissioners were in doubt, as to who, in truth, held the right which had once existed in the deceased ; or at least, that they did not choose to determine that question, but rather chose to leave it open, to be determined by further investigation by courts of law. And such, indeed, was the only prudent course for the commissioners to pursue; for it was well known then, as it is manifest now, that claims were likely to be preferred and prosecuted by those, who would, apparently succeed to the rights of the deceased as the heirs, executors or administrators, in total ignorance of the fact, that the deceased had, in his lifetime, granted away to others, the very rights which they were claiming to exercise. Although the commissioners may have supposed, and Morehouse himself may have believed, that he, as administrator, was, in truth, the legal representative of Guyard, as respects this right of preemption; yet if he was, in truth, not such legal representative, such supposition or belief, could not change the fact or the law, and make him the legal representative, and enable him, in truth a stranger, to take the grant by such designation. Suppose the law had authorized it, and the certificate had been given and the patent issued to ‘the heirs at law of Guyard,’ would proof that any stranger had appeared before the commissioners and prosecuted the claim as heir, enabled him to take the grant by that designation, simply because the commissioners supposed he was the heir and as such was entitled to the right i It is the patent which grants the land, and that was the act of the government and not of the commissioners. And we cannot presume that the government had any intent in issuing the patent, beyond that which is expressed on its face. The grantee is not named, but is described in the patent, and he, and he alone, who bears and can maintain that description, can take by the grant. The grant is to the legal representatives of Eobert F. Guyard, and it would be strange indeed, if the one who is such representative should not be allowed to take the thing granted; but that it should go to one who, as a matter of law and of fact, is not the legal representative to whom the conveyance runs.”
The fact that Morehouse was the administrator of Guyard, and that he presented the claim before the commissioners, and got the preemption allowed, and subsequently made the entry and paid the~purchase money at the land office, has been urged upon the present argument with peculiar emphasis, as showing, that he alone was meant in the certificate of the commissioners, and in the patent, by the descriptive designation of “legal representatives of Robert P. Guyard.” To our comprehension, this position has been satisfactorily answered by what has been already quoted. We take it to be a matter, at this day not open to controversy, that whoever succeeded to the right of Guyard, as the original settler, either by operation of law or by grant, is his legal representative, within the meaning of the act of congress, and, consequently, within the meaning of the certificate of the commissioners and of the patent; for the expression must have the same meaning in each. Row if Phelps was the grantee of Guyard, and as such was his legal representative, the right was as absolutely vested in him, as if he had been the original settler, and there was no right left in Guyard, which could, descend to his heirs, or pass to his administrator, any more than if he had not been the original settler, but had always been a stranger to it. If his grant to Phelps divested, him of his right of preemption and conferred it upon his grantee, there was nothing left, which could go to his heirs or administrator. They could acquire no right upon his death, for he had none at that time. Rothing but the decision of the highest tribunal in the government, can convince me, that something can be made out of nothing; that a right could be acquired where none existed. To my mind it is a question which will not bear argument, that More-house was not the legal representative of Guyard as to this preemption right, but that Phelps was. Indeed, that has not been controverted during the whole course of the argument, except so far as objection was taken to the deed from Guyard to Phelps, for the want of an expressed consideration, and which we do not think is tenable. Holding that deed to be good, no right could pass to Morehouse as the legal representative of Guyard, for none existed in his intestate. Still he was not an intermeddler without right, in the claim which he presented and prosecuted before the commissioners. He was an undisputed owner in his own right of one undivided half of the preemption right, and in establishing his own right, he necessarily and unavoidably also established the right of the owner of the other undivided half, whoever he might be. His appearance before the commissioners, and prosecution of the claim, and subsequent entry of the land in the name of himself and of the legal representatives of Guyard, was perfectly consistent with his true position, and the rights of Phelps, who was that legal representative. Indeed the language of the certificate and of the patent, is inconsistant with the claim now set up by Morehouse, that he was intended as the sole preemptor and grantee. It is “ to the legal representatives,” etc., in the plural. Had it been the intention of the commissioners to award the right and of the government to grant this half of the land to him, as the sole representative of Guyard, he would have been described in the singular and not in the plural number, as was done in both cases. We must understand that he appeared and acted only in that capacity which was consistent with the integrity of his position, and not presume that he intended to perpetrate a fraud upon the government, by obtaining a preemption and grant to himself, if he was not entitled to it, and upon the true representative of Guyard, if he did not himself occupy that relation. Although himself and the commissioners and the government, may all have supposed, or thought it probable, that he was the true representative, and by the description of the grantee adopted as such, would take under the grant, yet as that was not certainly known to be the case, the only prudent and just course was so to word the grant that the true representative should take, though he might be another than Morehouse. The position contended for, that the individual, whoever he might be, who appeared before the commissioners and claimed to be the legal representative must be held to be the grantee, by that designation, would require us to give the land to any stranger who might, in fraud of the government and of the true owner of the right, appear and by false pretenses impose himself upon the commissioners and the government as such, and it would frustrate the manifest and prudential object of both, in awarding the right and in granting the land to the party or parties by designation instead of by name, a course capable of preventing, and undoubtedly clesigned to prevent, the possibility of imposition or mistake.
Had Phelps appeared before the commissioners as the representative of Guyard, and proved his deed under which he claims the right, and the certificate and patent had been issued in the precise terms which were employed, then by the very terms of the argument now attempted to be answered, he would have taken; under the descriptive terms used, to designate the grantee. In that case, he would have been no more the legal representative of Guyard than he now is, and would no more have answered the description expressed in the patent. It is the conveyance by Guyard to him of the right, which gives him the character of representative. What, are courts to recognize the mere claim of right, in preference to the actual existence of a right, established by legal proofs ? I trust it will be long before such a principle meets a sanction in a court of justice; long before so wide a door shall be thrown open to invite the entrance of fraud and imposition, glaring fraud upon the rights of absent parties, and gross imposition upon the just intentions of the government. This case must establish a principle, the consequences and operation of which must reach far beyond itself. We find no error in the decisions of the circuit court. I have intentionally abstained from discussing several minor questions which the affirmance of the judgment must necessarily decide against théK appellant; preferring to confine the opinion to the construction of the act of congress, and the language used in the patent issued under it, that our judgment may be reviewed unembarrassed by any question of jurisdiction.
The judgment of the circuit court must be affirmed.
Judgment affirmed.