# Rector v. Ashley

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United States Supreme Court
73 U.S. 142
Rector v. Ashley
ERROR to the Supreme Court of Arkansas; the question in the court below being the validity of a title set up by Ashley's executors on bill to a piece of land in that State, south of the Arkansas River, near Little Rock, as against a title set up on the other hand by Rector on cross-bill, each party seeking to have his title quieted as against the other.
The title of the respective parties was thus:
Ashley claimed under a certain act of Congress of June 23d, 1836, granting to the State of Arkansas, for the purpose of completing the public buildings at Little Rock, a quantity of land, not exceeding five sections, to be located under the authority of the General Assembly of that State, on any of the unappropriated lands of the United in Arkansas. Such proceedings were had under this act, that on the 8th day of June, 1838, the legal title to the land in controversy became vested in Ashley, unless it had been previously appropriated by virtue of the proceedings under a certain act of Congress of February 17th, 1815, through which Rector set up a prior equitable ownership of the same land. This last-mentioned act provided that any person owning lands in the county of New Madrid, in Missouri (then recently visited by earthquakes), and whose lands had been materially injured by them, should be authorized to locate the like quantity of land on any of the public lands of the said territory, the sale of which was authorized by law, not exceeding six hundred and forty acres.
The material facts relating to the title of Rector thus set up, as far as they were disclosed by the record, were these: On the 30th November, 1815, there was issued to Henry Cockerham, by Frederick Bates, recorder of land titles at St. Louis, a certificate of the loss of six hundred and forty acres of land by the earthquake, entitling him to locate the same quantity on any of the public lands of the Territory of Missour , the sale of which was authorized by law. Next in order was a paper signed by William O'Hara, directed to the surveyor of the lands of the United States for the States of Illinois and Missouri, and the Territory of Arkansas, referring to this certificate, and stating that the said O'Hara, as the legal representative of Cockerham, located the said six hundred and forty acres on the south side of the Arkansas River, near Little Rock; describing the location so as to enable the surveyor to identify it, and praying an order of survey. This paper was dated St. Louis, October 30th, 1820, but no evidence was given that it was ever filed in the surveyor's office, nor any to show from whence it was produced; though for the purpose of the opinion given by it, this court considered that it might be conceded that it was regularly filed in the surveyor's office at the time it bore date, and that O'Hara had authority to act as the representative of Cockerham in the matter.
Then followed in the record, a survey purporting to be made under Cockerham's certificate, dated May 30th, 1838, and this was certified on the 16th day of June, 1838, to be then on file in his office, by F. R. Conway, recorder of land titles at St. Louis; and he further certified that by virtue thereof, the said Cockerham, or his legal representative, was entitled to a patent for the tract so surveyed, amounting to six hundred and forty acres of land. This appeared to be a transcript from the records of the General Land Office. There was also, in another part of the record, a survey dated May 2d, 1839, purporting to be made under the same certificate, apparently not identical with the former survey, and which was certified to be copy from the records of the surveyor of public lands for the district of Arkansas. There was nothing to show whether this survey was ever filed in the office of the recorder of land titles or not. It was understood that the description in the order of O'Hara to the surveyor, and the first of these surveys, and probably the second also, covered the land in dispute.
It was this title thus set up under the act of 1815 which Rector sought to have quieted and confirmed by his cross-bill. In the pleadings the titles were rested on the two acts of Congress respectively; though in the original bill in support of Ashley's title, filed by his executrix and one Beebe, it was averred, after a full statement of the title derived under the act of 1836-which title alone was set forth as the substantive ground of Ashley's bill-that Rector had 'never had anything more than temporary actual possession or occupation' of any part of the said lands 'alleged to have been located by virtue of the said pretended New Madrid location, except,' &c.; while it was stated on the other hand that Ashley and his representatives 'have continuously had actual and constructive possession of the same.' Beyond this the pleadings showed no reference to possession and lapse of time as an element of title.
The Supreme Court of Arkansas decided the case in favor of Ashley, giving a learned opinion (which was now in print before this court, but forming no part of the record sent up), to the effect that the land had not been 'appropriated' until after Ashley's title was fixed, and going also into an argument to show that under the statute of limitations of the State of Arkansas, Rector was barred by lapse of time. By a statute of Arkansas the opinions of the court are required to be filed among the papers of the case. Judgment was accordingly given in favor of Ashley's executors, and the case was now here under the twenty-fifth section of the Judiciary Act, which declares that a final decree of the highest court of a State, where is drawn in question the construction of any statute of the United States, and the decision is against the title, right or privilege so set up, may be reviewed here.
The two questions here were, 1st, jurisdiction; 2d, the validity of the claim of Rector.
Messrs. Martin, Rose, and Wal ins, for Ashley's heirs, the defendants in error, contended—
1. That this court could not entertain the case under the 25th section, and that it ought in fact be dismissed for want of jurisdiction, since it was plain that the question of title under the statute of limitations was passed on by the court below, whose opinion the statutes of Arkansas required to be filed among the papers of the case, and which was so made, the counsel argued, part of the record; and was in fact, also, presented sufficiently even by the record proper, in which reliance was had on continuous 'actual and constructive possession;' and that this court, therefore, was not competent under the section named to review a decision on the State statute, which decision was to be taken as certainly correct.
2. As regarded the claim of Rector, that on the facts of the case, it appeared that the land had been appropriated to Ashley on the 8th June, 1838, before any pretence of title appeared in Roctor; which at earliest was 16th of the same month. Among other cases, Lessieur v. Price in this court was in point. There the court held that a return of the survey to the office of the recorder was necessary to make an appropriation, and to give the title.
Messrs. Reverdy Johnson, Bradley, Sr., and A. H. Garland, for Rector, plaintiff in error, contra, argued—
1. That the court could look to the record alone, where no title was set up by limitations, and where, notwithstanding a few words in the bill by Ashley's executors about possession, it could not be said that such a defence was even adumbrated.
2. That in Lessieur v. Price, cited on the other side, the title spoken of by the court was the legal title, not the equitable one; that here Rector had obtained an equitable title which the United States could not devest; that Congressional surveys had been extended over the land when it was claimed by O'Hara, and so further survey was necessary.
Mr. Justice MILLER delivered the opinion of the court.

## Notes

* ↑ 5 Stat. at Large, 58.
* ↑ 12 Howard, 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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