# Rector v. Ashley/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
73 U.S. 142
Rector v. Ashley
The first question presented grows out of a denial of the jurisdiction of this court by defendants in error.
It is conceded that one of the points decided in the Supreme Court of that State against the plaintiff in error would be a sufficient ground for the jurisdiction, if it were the only one on which that court decided the case; but it is claimed that the decree is also based on another and distinct ground, over which this court has no jurisdiction, and that, therefore, we cannot examine the first point. If there is this second ground on which the decree may still be supported, although the first were decided in favor of the plaintiff in error, it would be a useless labor to inquire into the correctness of the point which is of Federal cognizance; because, as the ruling of the State court must be assumed to be correct on the other proposition, no reversal could follow if that proposition was sufficiently broad to sustain the decree.
It is claimed that the statute of limitations of the State of Arkansas in made by the Supreme Court a distinct ground for dismissing the cross-bill of Rector. If this be found by the record to be true, it is undoubtedly sufficient in itself to sustain the decree, and is beyond the revisory power of this court. But a careful examination of the pleadings in the case has not enabled us to discover that any of the parties, in whose favor the decree was rendered, have distinctly set up the bar of that statute, as a defence to the relief claimed by Rector. It is true that there is a casual reference in the original bill of Ashley's executrix and Beebe, to their actual and constructive possession, but it seems used rather argumentatively in favor of their title than as setting forth a distinct ground of relief; and in their answer, and in all the other answers to Rector's cross-bill-the bill which sets up the main title in controversy-nothing is said of the possession of defendants.
We cannot see, then, either from the pleadings or from any decree in the case, that this question was raised or considered by the court.
But the opinion of the Supreme Court of Arkansas is produced, and in that it is stated that the defendants are protected by the statute, and this is given as one of the reasons for the decree rendered.
We have of late been frequently urged, in this class of cases, to look into the opinions delivered in the State courts, to ascertain on what grounds their judgments were based; and the point has been one of some controversy. It is not, however, an open question. More than forty years ago the same question arose in the case of Williams v. Norris, reported in 12 Wheaton. The proposition was pressed upon the court for the same reason that it is in this case, namely, that by the statute of the State the opinions of the court are required to be filed in writing among the papers of the case. Marshall, C. J., speaking for the court, held that, notwithstanding this act, the opinion of the State court constituted no part of the record, and could not be looked to as the foundation on which this court would take or refuse jurisdiction.
Leaving out the opinion of the State court, there is nothing in the record before us to show that its decree decided any other controverted proposition than the validity of the title set up by complainant, Rector. This title was dependent upon the act of Congress of February 17th, 1815, for the relief of the inhabitants of New Madrid, who had suffered by earthquakes, and the decision was against the claim set up by him under that statute. It is, therefore, a proper case for a writ of error under the twenty-fifth section of the Judiciary Act.
2. As respects then the claim of Rector, who seeks to have his title quieted by the cross-bill which he has filed. The validity of this claim is the point to be decided by this court.
[His honor here stated the facts and proceedings on which the claim of Rector rested, as already given, and proceeded:]
The questions to be considered on these facts are, did these proceedings establish a right in the parties who represent Cockerham, to the land covered by the survey, which would withdraw it from the category of unappropriated lands on which the Arkansas grant could be located? And if they did, at what point in the proceeding did this right become fixed?
It seems to us that this court has already settled these questions in a manner which leaves nothing more to be said, unless we overrule its decisions.
In the case of Bagnell v. Broderick, which raised a question concerning a title derived under the New Madrid act, the court, after describing the proceeding necessary to secure its benefit, says: 'The United States never deemed the land appropriated until the survey was returned' (to the recorder of land titles), 'for the reason that there were many titles and claims, perfect and incipient, emanating from the provincial governments of France and Spain, and others from the United States, in the land district where the New Madrid claims were subject to be located. So there were lead mines and salt springs excluded from entry.' Again, speaking of an act of the legislature of Missouri, which authorized an action of ejectment on a New Madrid location, it is further said: 'Our opinion is, first, that the location referred to in the act, is the plat and certificate of survey returned to the recorder of land titles, because by the laws of the United States this is deemed the first appropriation of the land, and the legislature of Missouri had no power, had it made the attempt, to declare the notice of location filed with the surveyor-general, an appropriation contrary to the laws of the United States.'
In Barry v. Gamble, the court says: 'By the certificate of the recorder of land titles at St. Louis, Lafleur was entitled to 640 acres of land in compensation for lands of his injured by the earthquake in New Madrid County. On this t e survey of 1815 is founded. Its return by the surveyor, with a notice of location, to the office of the recorder, was the first appropriation of the land.'
The case of Lessieur v. Price, is not distinguishable from the one before us. In that case, as in this, plaintiff claimed under a New Madrid certificate, and the defendant under an act granting to Missouri four sections of land to aid in erecting public buildings, as the defendant in this case claims under a similar act for the benefit of the State of Arkansas. The case there, as it does here, turned upon the question which party first made a valid appropriation of the land in dispute. The court there declares that, for this purpose, the location under the New Madrid act must be an appropriation of the land, and its acquisition by the locator, with corresponding right to possess and enjoy it as against the United States; and the inquiry arose, what acts were required on the part of the locator to devest the United States of title? After reciting the language of the act on which this question is declared to depend, the court proceeds: 'The notice of location in this instance was delivered to the surveyor-general, June 2d, 1821, for the land in dispute, and is claimed as the inception of title, and location in fact, within the meaning of the State law authorizing ejectments on New Madrid locations. That it was the mere act of the party, not having the assent of the government, must be admitted. The act of Congress provides 'that in every case where such location shall be made according to the provisions of this act, the title of the person or persons to the land injured shall revert to and become absolutely vested in the United States.' A concurrent vestiture of title must have occurred. The injured land must have vested in the United States at the same time that the title was taken by the new location. It was intended to be an exchange between the parties, and the question arises, when did the United States take title?' After further consideration of the relative duties of the recorder of land titles, and of the surveyor, under the act of 1815, the court again rules that the return of the survey to the office of the recorder is essential to the appropriation of the land.
We are much pressed in the present case with the argument that the title here spoken of by the court, is the legal and not the equitable title; and that inasmuch as the applicant has done all that he can do, to make good his claim to the land, when he has deposited with the surveyor his certificate of loss, with a description of the land desired in exchange, he has thus acquired an equitable interest in the land so described, which the United States cannot devest by giving it to another.
But the rights of claimant are to be measured by the act 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 acquires no vested interest in the land until the officers of the government have 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. It seems to us clear, from the foregoing cases, that the court intended to decide, that until this was done the claimant acquired no vested right to the land; no title, legal or equitable. It is evident that in the case of Lessieur v. Price, the court is not speaking of the legal title. The statute of 1815 required a patent to be issued on the return of the survey to the recorder's office. The strict legal title remained in the United States until the patent issued; and the court could not have referred to that.
On the contrary, it is obvious that the court was endeavoring to fix the point in the proceedings, when the right of the claimant became vested, when his equity became a fixed fact, when the land he sought was appropriated to him, and when his injured land became the property of the United States; and by each of the three decisions we have cited this is held to be when the survey is returned to the office of the recorder of land titles. The legal title conveyed by the patent may not issue for years afterward, but by the act of the legislature of Missouri, an action of ejectment could be maintained on the equitable title thus acquired. In the Federal courts, however, according to repeated decisions, this could not be done for want of the legal title.
These views must dispose of the present case. The title of Ashley became a full vested legal title on the 8th day of June, 1838.
The earliest evidence we have of the return of the survey, under Cockerham's certificate, to the recorder of land titles, is the certificate of that officer of the 16th of June, 1838. The land, therefore, was unappropriated within the meaning of the act for the benefit of the State of Arkansas, when Ashley acquired title according to its provisions.
It is said that the Congressional surveys had been extended over the land in dispute when they were claimed by O'Hara, and described in his application to the surveyor, and that, therefore, no other survey was necessary. It is not important to decide here whether this would obviate the necessity of a survey, or of some equivalent return to the recorder's office, to show what land was intended to be appropriated under the certificate of loss, which emanated from that officer; for the description of O'Hara, while it refers to certain legal subdivisions of the public lands, refes also to other claims located in the same subdivisions, in such a manner that it can be ascertained only by a survey, how much and what parts of these legal subdivisions are necessary to make up his six hundred and forty acres. Such seems to have been his own opinion, when he prayed for an order of survey. It was undoubtedly necessary to an identification of the land.
The decree of the Supreme Court of Arkansas, having been made in conformity to these principles, is
AFFIRMED.

## Notes

* ↑ Page 117.
* ↑ 13 Peters, 436.
* ↑ 3 Howard, 32.
* ↑ 12 Id. 60.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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