# Lytle v. Arkansas (63 U.S. 193)/Opinion of the Court

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* Dissenting Opinion McLean
United States Supreme Court
63 U.S. 193
Lytle v. Arkansas
In this case, the decision was against an authority exercised by the register and receiver, subordinates of the Secretary of the Treasury, but under the same authority.
The jurisdiction exists wherever the laws of Congress and the acts of officers executing them in perfecting titles to public lands have been drawn in question and construed by the Supreme Court of a State, and the decision is against the title set up under the laws of Congress and the authority exercised under them.
19 Howard's Rep., 207, Cousin v. Blanc's Executors.
In McDonogh v. Millaudon, 19 Howard's Rep., 704, Mr. Justice CATRON said: 'Did this final judgment draw in question the construction of a treaty or statute of the United States, or of an authority exercised under the same, and was the decision against the validity of either or against the title or right set up under either? If these questions are answered in the negative, it follows that we have no jurisdiction to re-examine or reverse the judgment under the twenty-fifth section of the judiciary act.'
Hence, it must follow, necessarily, if answered affirmatively any one of them, the court would have jurisdiction. The plaintiffs in this case claim under the authority exercised under a statute of the United States, and a right set up under it, and the decision was against them.
Wynn v. Garland was similar to this in every respect, and the question was passed over without notice.
20 Howard's Rep., 7.
In order to give jurisdiction, it is sufficient, if the record shows, that it is clear from the facts stated, by just and necessary inference, that the question was made, and that the State court must, in order to have arrived at the judgment pronounced by it, have decided that question as indispensable to that judgment.
10 Peters Rep., 392, Crowell v. Randell.
1 id. Rep., 250, Wilson et al. v. the Blackbird C. M. Company.
1 Wheaton's Rep., 355, Martin v. Hunter's Lessee.
4 id. Rep., 311, Miller v. Nichols.
12 id. Rep., 117, Williams v. Norris.
The jurisdiction must be determined by reference to the record. And in doing so, the court will refer to the opinion of the State court, where it is made a part of the record by the laws of the State.
19 Howard's Rep., 207, Cousin v. Blanc's Executors.
In this case, there is no necessity, in the first instance, of looking behind the decree of the Supreme Court of Arkansas, to determine the ground of the decision; but, if need be, we may look back to the decision of the chancellor, whose decree was affirmed by the Supreme Court of Arkansas, and shall find that he overruled all the defences set up, except the invalidity of the pre-emption claim of Cloyes. (His opinion is made a part of the record-see Gould's Digest of the Laws of Arkansas, p. 242, sec. 17.) Certainly the fact that the Supreme Court decided against the right of the plaintiffs, upon the ground that it was fraudulent, cannot oust the jurisdiction. If that court had refused the relief because the proof showed that Cloyes never occupied or cultivated the land, the case would be the same; because the want of possession and cultivation, in the eyes of that court, constituted the fraud. The idea of fraud cannot be disconnected from the act of Congress. If there was any fraud, it was a fraud upon the law, and upon the United States through her land officers.
The decision being against the right, the Supreme Court has jurisdiction to re-examine the case, and determine, not whether the decision was right upon the particular ground, but whether the right was properly denied. The decree of the State court would not have been what it is, if there had not been a decision against the right set up by the plaintiffs; and this is all sufficient.
12 Howard Rep., 124, Williams v. Oliver et al.
3 Peters Rep., 292, 302.
And the decision of the State court need not be confined exclusively and especially to the construction of the treaty act of Congress, &c., in order to give jurisdiction.
12 Howard Rep., 124, Williams v. Oliver.
Points may arise, growing out of and connected with the general question, and so blended with it as not to be separated, and therefore falling equally within the decision contemplated by the twenty-fifth section. The case of Smith v. the State of Maryland, 6 Cranch, 281, and Martin v. Hunter's Lessee, 1 Wheaton, 305, 355, afford illustrations of this principle.
Here the record shows affirmatively that the decision was against the right set up and the authority of the land officers, excluding the idea that the decision was made upon the other defence set up by the defendants, such as purchasers for a valuable consideration without notice, statutes of limitation, lapse of time, &c. And it follows, as a matter of course, that if the decision of the State court upon that point was wrong, the decree must be reversed.
The counsel for the defendant in error, Mr. Watkins, made the following point upon the question of the jurisdiction of this court in this case:
On a writ of error from a State court, where no question of law is presented, it is not the province or duty of this court to review the decision of an issue of fact merely, made by the court below, with its superior facilities for determining the fact according to the weight or credibility of testimony.
By the judiciary act of 1789, appeals were only allowed from the District to the Circuit Courts. There was no mode of bringing up any case to this court, except by writ of error.
Blain v. Ship Carter, 4 Dallas, 22.
The terms, appeal and writ of error, though used by the act, were not confounded. An appeal is a civil-law proceeding, which removes the cause entirely, and is a rehearing on the facts as well as the law.
Wischart v. Danchy, 3 Dallas, 321.
The great object of the judiciary act of 1789 was to confine the appellate jurisdiction of this court to the examination and decision of questions of law, on errors assigned and made to appear upon the record. By section nineteen, the Circuit Courts in equity were required to cause the facts, upon which they founded their decree, to appear upon the record, either by a statement of such facts by the parties, or by the court where they could not agree, being analogous to a special verdict or case stated in trials at law. This regulation appears to have been regarded with some jealousy, according to the report of the case last cited, (Wischart v. Danchy,) as conferring a power on the Circuit Courts in chancery, which might be abused by a determination of facts contrary to or not warranted by the evidence. That feeling probably led to the passage of the act of 3d March, 1803, providing for an appeal, in chancery causes, from the Circuit Courts to this court, and that on such appeal the transcript should contain all the pleadings, depositions, and documentary evidence, in the cause.
The policy of the act of 1803, as apparent from its history, was, to enable this court to review and correct any gross error of the Circuit Courts, in determining questions of fact, against or without evidence. The principle pervading the exercise of appellate jurisdiction by this court is only partially innovated upon. I apprehend that no appeal in chancery was ever decided by this court, without deference to the opinion of the Circuit Court, which tried the cause upon the facts which the evidence conduced to establish; while, on the other hand, their errors or misconstructions of law are freely examined. And considering that in theory, and usually in practice, a justice of this court presides at the circuit, he has all the opportunities afforded in equity and admiralty causes, for arriving at a just conclusion upon the facts.
In all the cases from Parsons v. Bedford, 3 Peters, 444, (where this court refused to give efficacy to the act of 26th May, 1824, as an entering wedge for the civil-law practice of Louisiana, whereby this court would be called on to re-examine facts ascertained in the court below,) to Minor v. Tillotson, 2 Howard, 392, and Fenn v. Holme, 21 Howard, 481, this court has perseveringly resisted all efforts to engraft upon the Federal Judiciary the civil-law practice, or the mongrel systems of Texas and other new States.
But, in any view of it, the act of 1803 does not apply to writs of error from a State court, under the 25th section of the judiciary act. And according to the construction repeatedly given by this court, touching the distinction between an appeal and a writ of error, where those terms are used in acts of Congress, nothing is examinable on a writ of error by this court, as one of appellate jurisdiction, except questions of error in law. In view of the tendency of modern law reforms, so called, to make law equity, to assimilate pleadings in all civil causes to the chancery forms of a complaint, answer, and reply, and bring upon the record a crude mass of testimony, it seems proper for this court to consider whether such innovations shall be suffered to impair its own usefulness. The time, the learning, and ripe experience of the judges of the highest appellate court in the world belong to the country, and need not be wasted in the investigation of paltry questions of fact, which are of no concern beyond the immediate parties to the dispute. The imposition of such a duty would not only be subversive of the theory of appellate jurisdiction, but is one which an appellate court is not competent to perform. When this cause was tried in 9 Howard, the facts confessed by the demurrer lay in a nut-shell. The decision is interesting and important as an affirmance of the doctrine, that an inchoate right of pre-emption vested under law is not defeated by a subsequent act of Congress granting the land. But on this record, suppose the court here to enter upon a re-examination of facts, and after a patient and laborious collation of the testimony, and without indeed those aids attendant upon the court which tried the cause, and breathing the atmosphere of the witnesses, could instinctively appreciate their worth or credibility, should arrive at the conclusion that the claim of Cloyes was unfounded in fact, and fraudulent, the decision, settling no question of law, would not be worthy of a place in the reports. I take it, that amid all changes and fluctuations in the jurisprudence of the States, the principle governing the appellate jurisdiction of this court should remain unchanged; so that whatever mode of trial may be provided in the local tribunals, and to which the parties have resorted, the ascertainment of a fact, according to the mode provided, is to be regarded as final and conclusive of the fact.
I venture to submit, that it is only according to a technical view of the judiciary act that this court has any jurisdiction in the premises. It is true, that because the plaintiffs in error claim under a law of Congress, and the decision is against the right claimed, they come literally within the terms of the 25th section; so that the court, according to its practice, might refuse to entertain a motion to dismiss for want of jurisdiction, and out of abundant caution reserve the question until the final argument. Doubtless, if the plaintiffs in error can put their finger on any error or misconstruction of law by the chancellor in the determination of the fact, or, in other words, can show that he regarded those acts of the claimant as fraudulent, which, in the opinion of this court, and according to its construction of the law, were not so, then the decision of the court below would be examinable for that error. But, apart from the consideration of all other elements of mala fides, one essential fact, ascertained and decided by the court below, is, that Cloyes did not cultivate in 1829. While that determination stands, there never was any right, and consequently there is no jurisdiction.
Finally, if it be the pleasure of the court to go into a re-examination of the entire testimony, the defendants in error, whom I represent, confidently invite it, and are content to refer to the exposition of the evidence contained in the decisions of the chancellor and Supreme Court of Arkansas, and in the argument of Mr. Hempstead.
Mr. Justice CATRON delivered the opinion of the court.
The first question presented on the record is, whether this court has jurisdiction to examine and revise the decision of the Supreme Court of Arkansas by writ of error, under the 25th section of the judiciary act? The question arises on the following facts:
Nathan Cloyes, ancestor of the principal complainants, entered as an occupant, at a land office in Arkansas, a fractional quarter section of land, in 1834, under the pre-emption acts of 1830 and 1832. The fraction adjoined the village of Little Rock on its eastern side, and was for twenty-nine acres. The same land had been patented in 1833 by the United States to John Pope, Governor of the Territory of Arkansas, to be appropriated to the erection of public buildings for said Territory. The heirs of Cloyes claimed to have an earlier equity, by force of their pre-emption right, than that of the Governor of Arkansas.
They filed their bill in equity in the proper State court, to enforce this equity. That bill contained appropriate allegations to exhibit an equitable title in the plaintiffs, and the opposing right of the patentee, and thus to enable the courts to compare them. Some of the defendants demurred to the bill; others answered, denying the facts of the settlement and cultivation, and pleading the bona fides of their purchase and the statute of limitations.
The courts of Arkansas dismissed the bill on the demurrer; which judgment was reversed in this court, and the cause remanded for further proceedings. Lytle v. Arkansas, 9 How., 314. It was prepared for hearing a second time, and the courts of Arkansas have again dismissed the bill, and the cause is a second time before us.
The cause was fully heard on its merits below; and the claim of Cloyes rejected, on the ground that he obtained his entry by fraud in fact and fraud in law; and the question is, can we take jurisdiction, and reform this general decree? It rejected the title of Cloyes; and, in our opinion, it is not material whether the invalidity of the title was decreed in the Supreme Court of Arkansas upon a question of fact or of law. The fact that the title was rejected in that court authorizes this court to re-examine the decree. 14 Peters, 360.
The decision in the Supreme Court of Arkansas drew in question an authority exercised under the United States, to wit: that of admitting Cloyes to make his entry; and the decision was against its validity, and overthrew his title, and is therefore subject to be re-examined, and reversed or affirmed in this court, on all the pleadings and proofs which immediately respect the question of the proper exercise of authority by the officers administering the sale of the public lands on the part of the United States.
In the case of Martin against Hunter's Lessee, (1 Whea., 352,) the foregoing construction of the 25th section of the judiciary act of 1789 was recognised, and has been followed since, in the cases of Choteau against Eckhart, (2 How., 372,) Cunningham against Ashley, (14 How., 377,) Garland against Wynn, (20 How., 6,) and other cases.
Another preliminary question is presented on this record, namely: whether the adjudication of the register and receiver, which authorized Cloyes's heirs to enter the land, is subject to revision in the courts of justice, on proof, showing that the entry was obtained by fraud and the imposition of false testimony on those officers, as to settlement and cultivation. We deem this question too well settled in the affirmative for discussion. It was so treated in the case of Cunningham against Ashley, (14 How., 377;) again, in Bernard against Ashley, (18 How., 43;) and conclusively, in the case of Garland against Wynn, (20 How., 8.)
The next question is, how far we can re-examine the proceedings in the State courts.
In their answers, the respondents rely on the act of limitations of the State of Arkansas for protection. As this is a defence having no connection with the title of Cloyes, this court cannot revise the decree below in this respect, under the 25th section of the judiciary act.
Many of the defendants also relied in their answers on the fact that they were bona fide purchasers of the lots of land they are sued for, and therefore no decree can be made here to oust them of their possessions. The State courts found that a number of the respondents were purchasers without notice of Cloyes's claim, and entitled to protection as bona fide purchasers, according to the rules acted on by courts of equity. With this portion of the decree we have no power to interfere, as the defence set up is within the restriction found in the concluding part of the 25th section, which declares 'that no other error shall be assigned or regarded by this court as a ground of reversal, than such as immediately respects the before-mentioned questions of validity or construction of the Constitution, treaties, statutes, commissions, or authorities, in dispute.' Mr. Justice Story comments on the foregoing restraining clause, in the case of Martin v. Hunter's Lessee, (1 Whea., 358,) which construction we need not repeat.
Whether Cloyes imposed on the register and receiver by false affidavits, when he made proof of cultivation in 1829, and residence on the land in dispute on the 29th of May, 1830, is the remaining question to be examined. He made oath (23d April, 1831) that he did live on said tract of land in the year 1829, and had done so since the year 1826. Being interrogated by the register, he stated: I had a vegetable garden, perhaps to the extent of an acre, and raised vegetables of different kinds, and corn for roasting-ears; and I lived in a comfortable dwelling, east of the Quapaw line on the before-mentioned fraction. Being asked, did you continue to reside, and cultivate your garden aforesaid, on the before-named fraction, until the 29th of May, 1830? he answers: 'I did; and have continued to do so until this time.'
John Saylor deposed on behalf of Cloyes in effect to the same facts, but in general terms. Nathan W. Maynor and Elliott Bursey swore that the affidavit of Saylor was true. On the truth or falsehood of these depositions the cause depends.
In opposition to these affidavits, it is proved, beyond dispute, that Cloyes and his family resided at a house, for a part of the year 1828, occupied afterwards by Doctor Liser. In the latter part of 1828, they removed from that place to some log cabins, situate on the lots afterwards occupied by John Hutt, and where the Governor of Arkansas resided in 1851, when the witnesses deposed. Both places were west of the Quapaw line-the cabins standing probably one hundred yards west of the line, and which line was the western boundary of the fractional quarter section in dispute. Cloyes resided at these cabins when he swore at Batesville, before the register; and continued to reside there till the time of his death, which occurred shortly after his return from Batesville, say in May or June, 1831, and his widow and children continued to reside at the same cabins for several years after his death.
Cloyes was by trade a tinner, and in December, 1826, rented of William Russell a small house, constructed of slabs set upright, in which he carried on his business of a tin-plate worker. He covenanted to keep and retain possession for Russell of this shop against all persons, and not to leave the house unoccupied, and to pay Russell two dollars per month rent, and surrender the house to Russell or his authorized agent at any time required by the lessor.
Under this lease, Cloyes occupied the house until the 19th day of June, 1828, when he took a lease from Chester Ashley for the same, and also for a garden. He covenanted to pay Ashley one dollar per month rent; to put and keep the building in repair; to keep and retain possession of the same, until delivered back to said Ashley by mutual consent, either party having a right to terminate the lease on one month's notice. The house and garden were rented by the month.
Under this lease, Cloyes occupied the house, as a tin-shop, to the time of his death. Both the leases state that the shop was east of the Quapaw line, and on the public lands.
This slab tenement was built by Moses Austin, about 1820. On leaving Little Rock, he sold it to Doctor Mathew Cunningham; it passed through several hands, till it was finally owned by Col. Ashley. Buildings and cultivated portions of the public lands were protected by the local laws of the Arkansas Territory; either ejectment or trespass could have been maintained by Ashley against Cloyes to recover the premises, nor could an objection be raised by any one, except the United States, to these transfers of possession-neither could Cloyes be heard to disavow his landlord's title. He held possession for Ashley, and was subject to be turned out on a month's notice to quit.
Cunningham and other witnesses depose that the shop rented to Cloyes stood west of the Quapaw line. It however appears, from actual survey, that it was on the section line, which ran through the house, taking its southeast corner on the east side, but leaving the greater part of the shop west of the line.
Another pertinent circumstance is, that when Cloyes heard the pre-emption law of 1830 was about to pass, or had passed, (it is uncertain which, from the evidence,) he removed his wife and children, with some articles of necessary furniture, to the tinner's shop, from his residence at the Hutt place, and kept his family at the shop for a few months, and then they returned to their established home. This contrivance was probably resorted to at the instance of Benjamin Desha, who had agreed with Cloyes to pay into the land office the purchase money, and all incidental expenses, to obtain a title from the Government for an interest of one-half of the land. These evasions were mere attempts to defraud the law, and to furnish some foundation for the necessary affidavits to support his pre-emption claim at the land office.
On this aspect of the case, the question arises, whether Cloyes's possession as lessee and tenant of Ashley, occupying a shop as a mechanic, the corner of which accidentally obtruded over the section line, upon the public land, and who was subject to removal by his landlord each month, was 'a settlement' on the public lands, within the true intent and meaning of the act of May, 1830?
That Cloyes never contemplated seeking a home on the public lands as a cultivator of the soil, is manifest from the proof; he worked at his trade, when he worked at all, (say the witnesses,) and followed no other avocation. Our opinion is, that the affidavits, on which the occupant entry was founded, were untrue in fact, and a fraud on the register and receiver; and that Cloyes had no bona fide possession as tenant of the tinner's shop, within the true meaning of the act of 1830.
We are also of opinion, that the affidavits are disproved, as respects the fact of cultivation in 1829. There was no garden cultivated in that year, adjoining or near to the shop. To say the least, it is quite doubtful whether there was such cultivation east of the Quapaw line; and the State courts, having found that there was none, it is our duty to abide by their finding, unless we could ascertain, from the proof, that they were mistaken, which we cannot do; our impressions being to the contrary.
The question of cultivation in May, 1830, depended on parol evidence of witnesses. The judges below knew them; they decided on the spot, with all the localities before them; and as the evidence is contradictory, it would be contrary to precedent for this court to overrule the finding of a mere fact by the courts below.
On the several grounds stated, we order that the decree of the Supreme Court of Arkansas be affirmed, with costs.

## Notes

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