MATTHEWS v. ZANE'S LESSEE

MATTHEWS v. ZANE’S LESSEE The lands in. eluded within the 'Zañeville district by the yet of the 3d Jvlarch, 1803, fcoulrf not, after that date, be sold at the Marietta landofHcc. ÉRROR to the supreme court of the state of Ohio for the county of Muskingum, in an action of ejectment brought by Zane’s Lessee against Matthews, in which both parties claimed title under the laws of the United States. The question of jurisdiction in this case was settled at last term. (Ante, vol. 4. p. 382.) • The remaining question was, whether the plaintiff in error, or the defendant, had me title to the west fraction of section No. 15. in township No. 12. in range No. 13. in the state of Ohio. This question arose upon a special verdict, which Stated the following facts. On the 7th of Februaryj 1804,- the office of refceiver of public moneys at Marietta then being vacant, Matthews applied to the register of the land-office at Marietta, for the purchase of that fraction, who received the application, and gave Matthews a certificate thereof. On the 26th-of March, 1804, a register and receiver were appointed for the Zaneville district, and also-a receiver of public moneys for the Marietta district, who commenced the duties of his office on the first of May, in that year. After the 12th of Máy*. in the same year, Matthews purchased the land at the Marietta land-office, by making such páyments, and receiving such certififcates, as are prescribed by law. On the 21st of May, 1804, the land-office was first opened at Zaneville, and the sales of land commenced ■ therein. On the 17th of the same May, a schedule was forwarded from the súrveyor-generál, purporting to bé a complete list of the lands lying within the Zane-ville district, which had been before sold at the Marietta land-office, and in which the land in controversy was not included. Subsequent to the passage of the law for the erection of the Zaneville district, and prior to the time when the office of receiver of public moneys for the ■Marietta district became vacant, two entries were made in the Marietta land-office, of land lying within the Zanevdle district, which entries and sales were acknowledged as good and valid by the government of the United States, who considered Matthews’s entry as void, and the secretary of the treasury has directed his purchase-money to be repaid tó him. 1 he two tracts, the sales of which were confirmed by the government of the United States, were in the surveyor-general’s schedule returned as sold at Marietta; but the land in controversy was not included in that schedule, becaixse register of the land-office at Marietta had not made his return, as by law.directed, to the surveyor-general, who had no guide by which to make out the schedule;' but the .returns of the register. The officers of the Zanevillé land-office were directed by the, secretary of the treasury to receive the-schedule as the only evidence of what land had been sold at Marietta. On the 26th of May, 1804, Zane purchased, at the Zaneville land-office the land in controversy, by making such, payments, and receiving such a certificate, as by law aré prescribed, at which time Matthews produced his' certificate from the register of the Marietta land-office, and gayé notice of his having purchased the same land. Zane’s purchase, was confirmed by the secretary of the treasury. P. B. Key, for the plaintiff in error, contended. 1. That the purchase made by Matthews'was legal and valid! And, 2. That the defendant in error was not entitled to recover. That .this subject, may be distinctly understood, it may be necessary concisely to state the land sys-: • tém of the United States. In 1784?, the old congress passeu an ordinance for the survey and sale of public lands in the north-west- ' eyn territory. Seven ranges of townships were.laid off, ahd sales made 'at Néw-Tork;, to a considerable extent. The Indian wars that soon followed, closed the sales. But after General Wayne’s treaty at Gre^neville, in 1795, congress took úp thé subject again, and in May'-, 1796, passed aft act for appointing asurveyor-general,'and directing surveys and sales. Pol. 3. p. 2£>3. These surveys could not be completed-till the end of the year 1799. ' The act of the 10th of May, Í800, vol. S. p. 174. established the present system, by which four land-offices were. to be opened, viz. at Cincinnati, G'hilicothe, Marietta, . and Steubenville. That at Marietta was for the lands lying east o'f the sixteenth range of townships, south of the military lands,, and south of a line drawn due west from the north-west corner of the first township of the second range to the military lands. A register of the land-office, and a receiver of public moneys, was to be appointed for each of the offices. A person wishing to purchase any of the lands was to pay to the treasurer of the United States, or the receiver of public moneys, one twentieth part of the purchase-money besides certain. fees, atid take his receipt-therefor, which he was to carry to the register, who was to enter his application in a book,, stating the date, of the application, the date of the receipt, áñd the number, of the section, or half section, township and range applied for. 'No lands were to be sold at.less than,two dollars an acre, one fourth, including the one twentieth, in forty-days, one- fourth in two .years, one fourth in three years, and the residue in four years, with interest. A discount of 8per cent.per annum.was to be allowed for prompt payment. Upon payment of the whole purchase-money a patent was tobe issued by the president of the United States. Thus stood the land system, and the mode of purchasing and acquiring title until congress, desirous of bringing more lands into the market, passed an act on the 3d of March, 1803, v.oL 6. p, 29Í. by ' the 6th section of which, a new district was created called'the Zaneville district, which covered, part of the lands in Marietta district, and, among others, the lands in controversy^, and certain lands inv the. military tract which had not been surveyed: This act did not prescribe the time when the land-office-should be opened at Zaneville,'nor when the officers should be appointed. Thé first question which presents itself under this law .is, did it prevent a continuance of sales at Marietta, of the lands which had been surveyed in that district, and now included in the- Zaneville district ? We contend it did not. All these laws are to be construed together as forming' one system. The two great principles of the system are, Settlement of the western frontier, and révenye to be derived from the sales of the landg. The im portance of the first, and the policy of settling the western frontier, are too obvious for illustration. It has been an. object of anxiety at all times from the first , organisation of the union. As an object of revenue it has been the incessant subject of attention, and ofCprimary Importance. The proceeds of the sales were in 1790 assigned to the sinking fund. With a view- to facilitate sales, the lands have been divided.into sections and half sections. Discounts, and aba.tement-of interest, have ■ been allowed on .prompt payment.. The sale of the western lands, .therefore, being a leading object of patianal policy, it is to -be presumed that they.-were pot to cease unless by positive Jaw. There is nothing in the act creating the Zanev\lh district to prevent a sale at Marietta, before the ' <Zaneville office -should be Opened. There is nothing repugnant to such a construction. Both acts may . so far, stand together, and be consistent with each other and with the general policy pf the United-States. The 5th and 6th sections of the act of 1803, taken tpgether, show that a previous survey was to be made of the unappropriated military lands which were to form a part of the Zaneville district, before the sales could commence there. The 4th section of the act of 1800, gave full powers to the 'Marietta land-office to sell all the lands within that district. This power exists until destroyed, and cannot be repealed by doubtful, implication against the great national policy and the scope of the laws., It was well understood that the Zaneville land-office could not be opened until a survey should be made.. Officers were to .be appointed; and none were appointed until a year after, because they could not act until the surveys should be completed, and the lands ready for sale; This shows what construction the executive gave to the law. The surveyor-general also returned a list of sales made at Marietta, up to the 17th of May, 1804. All the sales upon that list have been confirmed by the treasury. In the course of the year 1803 a survey was made, and congress, by the act of the 26tfi.of March, 1804, voL7- p- 106. $ 12. opened the Zaneville land-office on the 21st of May, 1804, and directed the sales to commence there on that day. Is it a reasonable construction to contend that .700,000 acres should be locked up from market for a whole year, when every act of the government de- . monstrated their anxiety to m;ike sales. The act ot 1803 described limits withyi which an office was erected for future sales, but the opening of that office and proceeding to sei! was to he settled by a future law. This Was done, and the office directed to go into operation on the 21st of May, 1804. Until that period the office at Marietta might proceed to sell. This construction derives weight from an analogous cáse, a case also of revenue. Suppose a district, for the collection of duties, divided,.apd a new port of entry established; and a collector.- tó be appointed, would this put a stop to the entry and. collection at the first port until' the sefcond office was open for business? . If Matthews’s, purchase hád been inserted in the surveyor-general’s-schedule, it would have’been confirmed by the .treasury for the same .reason that the. two ocher similar sales were confirmed.' The reason ydiy it- was not upon that schedule was the négléfct. of the register. Shall the neglect or omission, of his duty by an officer of the United States^ prejudice the claim of an innocent purchaser ?’• The schedule of the surveyor-general was not the Only admissible evidence of sales, at the Marietta Office. There was no-statute, nor any principle of law, which made it such. It was á matter in pais, which might be proved by afly kind of legal evidence.. The'1 register’s certificate which' Matthews produced attheZanevilleoffice at. the time and place of sale to :Zane, was the very best evidence which-could theii.be required; and it ought, to have, been respected. Zarie purchased with a lull knowledge of Matthews Vtitle. .. Harper, contra, contended that the authority to sell at Zaneville. was .inconsistent with the authority to-sell at. Marietta; and thatxonseqüently the latter was revoked by the former. When the act of March a, 1803, directed that these lands should be' offered, for sale at Zaneville, they could no longer be sold elsewhere. The act. provides for the appointment of officers to sell: Congress had only to; create the office. The^president' was to appoint the officers,1 Under the general authority-given to him by the constitution. • If the president did not appoint, that did not prevent the effect of the act. The president eannot«dispense With the law, nor suspend its operation. The adt of the 26th of March, 1804, voL7. pf 106. directs positively- that the lands shall be offered for sale, at Zanéville on the third Monday of May. No quarter sections or fractions of sections of this land could -be sold elsewhere. This act of the 26th Of March, 1804, first gave the-power to sell the fractions of sections separately. It could not be doné at Marietta until the 14th of May, 1804, yet Matthews’s purchase was on the . 12th, so that'even if this land could have been sold at Marietta at all, it. could not, on. the 12th of May, have been sold separately from a section; nor could have been sold until it had first been offered at public auction. P. É. Key, in reply. The purchase of this fraction was with a whole. Section, and therefore -the fact does not support the argunient on the other side. The only .questions are whether the, authority to sell the§e lands at the Marietta office ceased before the Zaneville office was opened,- . and whether the neglect of the register to make a return of this sale to the surveyor-general shall prejudice the claim of the plaintiff in error. [MAJORITY — Marshall, Ch. J.] ■February 16. Marshall, Ch. J. stated the opinion of the court to be that the decision of the court below, was correct; that the erection of the Zaneville district suspended thé power of sale in the Marietta district: Judgment affirmed.