entry at the state land office, the title to which lands is still in the United States, such persons so having purchased the same, or their assignees, in case the same shall have been sold and conveyed, shall be permitted to enter the same at the proper land office of the United States, at the price of one dollar and twenty-five cents per acre: Provided, That in all cases where entries of such lands have been permitted to be made at the proper United States land office, at one dollar and twenty-five cents per acre, by persons who had purchased the same from the state of Missouri, or their assignees, such entries or sales shall be and the same are hereby confirmed: Provided further, That nothing in this act contained shall be construed so as to interfere with the rights of third parties. VIII. SUITS BY CLAIMANTS. 3 July 1856 4 Stat. 52. institute proceed trict court of Missouri. 559. It shall and may be lawful for any person or persons, or their legal representa- 26 May 1824 ? 1. tives, claiming lands, tenements or hereditaments, (a) in that part of the late province of Louisiana which is now included within the state of Missouri, by virtue of any French Claimants may or Spanish grant, concession, warrant or order of survey, (b) legally made, granted or ings in the disissued, before the 10th day of March 1804, by the proper authorities, to any person or persons resident (c) in the province of Louisiana at the date thereof, or on or before the 10th day of March 1804; and which was protected or secured by the treaty between the United States of America and the French republic, of the 30th day of April 1803,(d) and which might have been perfected into a complete title, (e) under and in conformity to the laws, usages and customs of the government under which the same originated, (g) had not the sovereignty of the country been transferred to the United States; in each and every such case, it shall and may be lawful for such person or persons, or their Petition. legal representatives, to present a petition to the district court of the state of Missouri, setting forth, fully, plainly and substantially, (h) the nature of his, her or their claim to the lands, tenements or hereditaments, and particularly stating the date of the grant, concession, warrant or order of survey, under which they claim, [the name or names of any person or persons claiming the same, or any part thereof, by a different title from that of the petitioner, or holding possession of any part thereof, otherwise than by the lease or permission of the petitioner:] (i) and also, if the United States be interested on account of the lands within the limits of such claim, not claimed by any other person than the petitioner; also, the quantity claimed and the boundaries thereof, when the same may have been designated by boundaries; by whom issued, and whether the said claim has been submitted to the examination of either of the tribunals which have been constituted by law for the adjustment of land titles in the present limits of the state of Missouri, and by them reported on unfavorably, or recommended for confirmation; praying in said petition, that the validity of such title or claim may be inquired into and decided by the said court: and the said court is hereby authorized and required to hold Jurisdiction. and exercise jurisdiction of every petition presented in conformity with the provisions of this act, and to hear and determine the same on the petition, in case no answer or answers be filed after due notice; or on the petition, and the answer or answers of any person or persons interested in preventing any claim from being established; and the answer of the district attorney of the United States, where he may have filed an answer; according to the evidence which shall be adduced by the petitioner, by any person interested in preventing the decree of the court in favor of the title of the petitioner or petitioners, and by the United States, and in conformity with the principles of justice, and according to the laws and ordinances of the government under which the claim originated. And the copy of such petition, with a citation to any adverse possessor or Citation. claimant, shall be served on such possessor or claimant in the ordinary legal manner of (a) Lead mines are not excepted in this act. Delassus v. United States, 9 Pet. 117. (b) A claim cannot be confirmed under this act, unless some particular tract of land was severed from the mass of the domain of the crown, by an authorized survey, or by such a description in the concession, grant, warrant or order of survey, as is capable of being followed by a survey pursuant to its calls. Smith v. United States, 10 Pet. 326. Wherry v. United States, Ibid. 338. United States v. D'Auterieve, 15 How. 14. Jurisdiction to adjudicate written evidences of title was alone conferred; no decree can be founded on mere possession. United States v. Rillieux's Heirs. 14 Ibid. 190. United States v. Power's Heirs, 11 Ibid. 580. (c) The residence must be averred and proved. United States v. Castant, 12 How. 437. (d) This law was passed to enable claimants to lands within the limits of Missouri and Arkansas, to institute proceedings to try the validity of their claims to land prior to the consummation of the cession of the territory acquired by the United States, by the Louisiana treaty, United States v. Arredondo, 6 Pet. 708. It merely gave a remedy by which existing incomplete French and Spanish titles could be made complete; it did not otherwise add strength to such titles. United States v. Reynes, 9 How. 127. United States v. D'Auterive, 10 Ibid. 621. McCabe v. Worthington, 16 Ibid. 86. (e) Complete titles are not embraced by this act: they are to be tried and determined in the usual modes, by courts of law. United States v. Reynes, 9 How. 144. United States v. Philadelphia and (g) This is an express recognition of any known and established usage or custom in the Spanish provinces, in relation to the grants of land and the title thereto, which brings them within a well established rule of law-that a custom or usage saved and preserved by a statute has the force of an express statute, and shall control all affirmative statutes in opposition, though it must yield to the authority of negative ones, which forbid an act authorized by a custom or usage thus saved and protected. Mitchel v. United States, 9 Pet. 735-6. See United States v. Hughes, 13 How. 1, 4, 7. (h) This does not describe the jurisdiction of the court, but the principles according to which that jurisdiction is to be exercised; consequently, those technical averments which are required in the pleadings to show the jurisdiction of a court of limited jurisdiction are not indispensable, and it will be sufficient if the petition state a case substantially within the law. United States v. Clarke, 8 Pet. 467. United States v. Huertas, Ibid. 488. (i) See infra, 575. 26 May 1824. serving such process in the state of Missouri, at least fifteen days before the term of the district court of the United States, to which the same is made returnable, and, in like manner, on the district attorney of the United States where the government is interested Duty of district in the defence. And it shall be the duty of the United States' attorney for the district in which the suit shall be instituted, in all cases where the United States are interested on account of the public domain, to take notice of each petition filed under the provisions of this act in the said district, and to make defence on all just and proper occasions, in behalf of the public interest. attorney. Ibid. 2. practice in equity. 560. Every petition which shall be presented under the provisions of this act, shall be Proceedings to be conducted according to the rules of a court of equity, (a) (except that the answer of the disaccording to the trict attorney of the United States shall not be required to be verified by his cath) and tried without any continuance, unless for cause shown; and the said court shall have full power and authority to hear and determine all questions arising in said cause, relative to the title of the claimants, the extent, locality and boundaries of the said claim, or other matters connected therewith, fit and proper to be heard and determined; and by a final decree, to settle and determine the question of the validity of the title according to the law of nations, the stipulations of any treaty and proceedings under the same, the several acts of congress in relation thereto, and the laws and ordinances of the government from which it is alleged to have been derived ; (b) and all other questions properly arising between the claimants and the United States: (c) which decree shall, in all cases, refer to the treaty, law [or] ordinance, under which it is confirmed or decreed against; and the court may, at its discretion, order disputed facts to be found by a jury, according to the regulations and practice of the said court, when directing issues in chancery before the same court. And, in all cases, the party against whom the judg ment or decree of the said district court may be finally given, (d) shall be entitled to an appeal, within one year from the time of its rendition, (e) to the supreme court of the United States, (g) the decision of which court shall be final and conclusive between the parties; and should no appeal be taken, the judgment or decree of the said district court shall, in like manner, be final and conclusive. Decree. Appeal. Ibid. 3. What evidence to be admitted. Ibid. 4. Examination of witnesses. 561. The evidence which has been received by the different tribunals which have been constituted and appointed by law to receive such evidence, and to report the same to the secretary of [the] treasury, or to the commissioner of the general land office, upon all claims presented to them respectively, shall be received and admitted in evidence for or against the United States, in all trials under this act, when the person testifying is dead, or beyond the reach of the court's process, together with such other testimony as it may be in the power of the petitioner, the person or persons interested in the defence made against establishing any claim, or the United States' attorney, to produce, and which shall be admissible, according to the rules of evidence and the principles of law. 562. In all cases in which evidence shall be offered by the petitioner, which has not been received by either of the tribunals constituted by law for that purpose, it shall be the duty of the attorney of the United States for the district in which the suit shall be instituted, or any person interested in the defence may examine, or cause to be examined, the witnesses, whether examined in court or by commission under the authority thereof. Copies of record. And it shall be the duty of the commissioner of the general land office of the United States, or the keeper of any public records, who may have possession of the records and evidence of the different tribunals, which have been constituted by law for the adjustment of land titles in Missouri, as held by France, upon the application of any person or persons, whose claim to lands has been rejected by such tribunals, or either of them, or on the application of any person interested, or by the attorney of the United States for the district of Missouri, to furnish copies of such evidence, certified under his official signature, with the seal of office thereto annexed, if there be a seal of office.(h) 563. Any claim to lands, tenements or hereditaments, within the purview of this act, which shall not be brought by petition before the said courts, within two years passing of this act, (i) or which, after being brought before the said courts, shall, on account of the neglect or delay of the claimant, not be prosecuted to a final decision Ibid. 5. Limitation. (a) The supreme court has often decided that by these rules are meant the well-settled and established usages and principles of the court of chancery, as adopted and recognised in their decksions. United States v. Arredondo. 6 Pet. 709. It is to be under stood rather as excluding the technicalities in courts, than as vary. ing in any degree the rights of parties litigant. United States v. D'Auterive, 10 How. 621. In thus consenting to be made defendants in equity at the suit of every claimant, the United States waived all rights which the treaty could give them as purchasers for a valuable consideration without notice. Smith v. United States, 10 Pet. 330. (b) See Glenn v. United States, 13 How. 250. (c) The court cannot make an indefinite decree, in favor of the petitioner, for such quantity of land as the United States may have sold of the land adjudged to belong to him; the precise from the quantity must be ascertained by the decree. United States Moore, 12 How. 209. (d) A judgment that a demurrer to a petition be sustained, but taking no further order concerning the petition, is not final, and an appeal does not lie. De Armas's Heirs v. United States, 6 How. 103. (e) If an appeal is prayed, but not prosecuted within the year. the decree becomes final, and the parties are entitled to a patent for their land. 5 Opin. 475 (g) As there is no clause of limitation applying to the whole act, nor as to the time within which the supreme court shall exercise the appellant power conferred on it, the act, in this respect, is a perpetual one. United States v. Boisdore's Heirs, 8 How. 121. (h) See United States v. Percheman, 7 Pet. 84-5. Time for filing petitions extended, until 26 May 1825, by act 22 May 1826 2. 6 Stat. 355. And see infra, 574, 577 within three years, shall be for ever barred, both at law and equity; and no other action, 26 May 1824. at common law, or proceeding in equity, shall ever thereafter be sustained in any court whatever, in relation to said claims. Ibid. 2 6. Copy of final tified. 564. Upon the final decision of any claim prosecuted under this act, in favor of the claimant or claimants, it shall and may be lawful for such claimant to demand and receive from the clerk of the court in which such final decision is had, a copy of the decree to be cerdecree, in his, her or their favor, under the official signature of the clerk, and the seal of the court, if any seal belong to it, and deliver the same to the surveyor of public lands, for the state of Missouri; who shall, thereupon, cause the land specified in said Survey thereon. decree to be surveyed, at the expense of the party, (a) and duplicate plats and certificates of the survey, so made, to be returned into his office; one of which shall remain in said office, and the other, authenticated by the attestation and official signature of the surveyor of public lands, shall be delivered, on demand, to the party interested therein; and the same being presented to the commissioner of the general land office, in Wash- Patent. ington city, shall entitle the party interested to a patent from the president of the United States. lic lands. 565. In each and every case in which any claim, tried under the provisions of this act, Ibid. 27. shall be finally decided against the claimant, and in each and every case in which any Claims rejected or claim cognisable, under the terms of this act, shall be barred by virtue of any of the barred to be pub provisions contained therein, the land specified in such claim shall, forthwith, be held and taken as a part of the public lands of the United States, subject to the same disposition as any other public land in the same district. Ibid. 28. 566. The clerk of said court shall, and he is hereby directed, when any petition of claim is filed, under the provisions of this act, before any proceedings thereon, to require Security for costs. good and sufficient security for all costs and charges which may accrue thereon in prosecuting the same to a final decree.(b) And the district attorney, clerk, marshal, attending Fees. witnesses and jurors, shall severally be allowed such fees for their services and attendance as may be allowed by law for the like services and attendance in the district court of the state of Missouri; to be paid by the party calling for such service or attendance, except where the petitioner or petitioners fail to prosecute his, her or their suit or claim, to a final decree, or to obtain a final decree in his, her or their favor, or where any such title or claim may have been presented to the commissioner or the register and receiver, When petitioners to pay costs. acting as commissioners for the examination of titles and claims to land in said district, and by them has been reported unfavorably on; in all of which cases, all costs, charges and expenses of such prosecutions, shall be paid by the petitioner or petitioners. The clerk of the court, in which the final decree shall be had, shall be allowed one dollar and fifty cents for the official copy of such final decree; the surveyor of public lands shall be allowed one dollar for each of the official certificates required of him; and the keeper of the records and evidence, taken under former acts of congress, for the adjustment of land titles, shall be allowed at the rate of ten cents for every hundred words contained in any such written evidence of their claim, to be paid by the party applying therefor. Ibid. 29. attorney-general. 507. It shall be the duty of the attorney of the United States for the district in which the suits authorized by this act shall be instituted, in every case where the decision is when decision to against the United States, and the claim exceeds one thousand acres, to make out and be reported to the transmit, to the attorney-general of the United States, a statement containing the facts of the case, and the points of law on which the same was decided ; (c) and if the attorney- His duties. general shall be of opinion that the decision of the district court was erroneous, it shall be his duty to direct an appeal to be made to the supreme court of the United States, and to appear for, and prosecute, the said appeal in that court; and that it shall be the further duty of the district attorney to observe the instruction given to him by the attorney-general in that respect. (d) Ibid. 10. 568. It shall be the duty of the marshal of the state of Missouri, by himself or deputy, to attend the said court while in session, and to execute all process to him directed by Duties of marthe court, under this act. 569. If, in any case, it should so happen, that the lands, tenements, or hereditaments, decreed to any claimant, under the provisions of this act, shall have been sold by the United States, or otherwise disposed of, (e) or if the same shall not have been heretofore (a) This section applies to confirmations where there is no interfering claim, so that nothing remains to be done by the court below; but where the case comes under the 11th section, (infra, 569) then the surveyor, and the court below must both act; the one to ascertain what portion of either of the confirmed surveys comes within its provisions; and the other to decide, on the return of the surveyor, how much land, if any, is to be entered at the proper land office. Sibbald v. United States, 12 Pet. 494-5. (b) By act 24 May 1828 2, (infra, 575) the costs are to abide the event of the suit. (c) The act requires a statement of the facts and points of law shal. Ibid. 11. on which the decisions were made; a copy of the record is not enough. 2 Opin. 64. (d) It is sufficient if the district attorney claim an appeal, and it is sanctioned in the supreme court by the attorney-general. United States v. Curry, 6 How, 106. (e) There can be no doubt of the right of congress to give a preference to an intervening title acquired during the existence of the law. Barry v. Gamble, 3 How. 56. McCabe v. Worthington, 16 Ibid. 86. The location of a New Madrid certificate is not such a sale or disposition of the lands as is contemplated by the act. 3 Opin. 354. If lands have been sold, the successful claim to enter other lands. 26 May 1824. located, in each and every such case, it shall and may be lawful for the party interested to enter, after the same shall have been offered at public sale, the like quantity of land, in parcels, conformable to sectional divisions and subdivisions, in any land office in the ant to be entitled state of Missouri;(a) and, if it should so happen, that, in making such entries, there should remain in the hands of the enterer a fractional excess of acres, of less number than the smallest sectional divisions authorized by law to be sold, it shall and may be lawful for the party interested to enter, in virtue of such fractional excess, the quantity of one half-quarter-section, upon paying one dollar and twenty-five cents for each acre contained in such half-quarter-section, over and above the fractional excess to which he may be entitled by such confirmation. Ibid. 12. Se-sious of the district court. Ibid. 13. 570. For the purpose of carrying into effect the provisions of this act, the judge of the district court for the state of Missouri, shall hold his sessions at the following places, viz.: at the town of St. Louis, in the county of St. Louis, on the third Monday of September next; at the town of St. Genevieve, in the county of St. Genevieve, on the third Monday of December next; and at the town of Jackson, in the county of Cape Girardeau, on the third Monday of April next; he shall appoint his own clerks; and after the first and each of the said sessions, he shall thereafter sit, upon his own adjournments, at the places aforesaid, until all the business before him shall be completed, or the time limited by this act shall have expired; of which said adjournments, and the time of holding the special sessions aforesaid, public notice shall be given at each of the places aforesaid, and at such other places, in the state of Missouri, as he shall direct: Provided, That at either of the places aforesaid, the court may take cognisance and jurisdiction of any claim within the limits of the state: Provided moreover, That, if there should be any person defending against the confirmation of such claim, in such case the trial, in case he shall request the same, shall be had at that place nearest the residence of such person defending against such confirmation. 571. The district judge for the state of Missouri shall, while in the discharge of the Compensation of duties imposed by this act, be allowed at the rate of eight hundred dollars per annum, in addition to his salary as district judge for the state of Missouri; which shall be in full for his services.(b) district judge. Ibid. 14. Provisions extended to Arkausas. Ibid. 15. 24 May 1828 4 Stat. 298. 1. 572. All the provisions of this act shall extend to, and be applicable to, the territory of Arkansas; (c) and for the purpose of finally settling and adjusting the titles and claims to lands derived from the French and Spanish governments, respectively, the superior court for the territory of Arkansas, shall have, hold, and exercise jurisdiction in all cases, in the same manner, and under the same restrictions and regulations, in all respects, as by this act is given to the district court for the state of Missouri. And the judges of the superior court, clerk of said court, marshal, and district attorney of the United States, for the said territory, shall, severally, perform the same duties, and have the same powers in relation to the claims to land presented and prosecuted in said court, in the territory of Arkansas, as is herein provided with regard to the titles and claims to land presented and prosecuted in the district court for the state of Missouri; and the judges of said superior court, the clerk, marshal, and district attorney, shall, each, severally, receive the same fees, emoluments, and compensation for their services, as is in this act provided, in regard to the district judge, clerk, marshal, and district attorney in the state of Missouri. And the said court shall commence its first session on the first Monday in October next, at Little Rock, in the territory of Arkansas; and, afterwards, shall sit, upon its own adjournments, at the place aforesaid, until all the business before it shall be completed, or the time limited by this act shall have expired; of which public notice shall be given, as is provided in this act, in relation to the district court of the state of Missouri: Provided, That in all cases of a decree against the United States, for a greater quantity of land than five hundred acres, in the superior court of Arkansas, it shall be the duty of the attorney of the United States, to transmit to the attorney-general of the United States, so soon as may be, a like statement of the facts and points of law in the case, as is required of the district attorney of Missouri; and the same right of appeal from the decision of the court in Arkansas, shall be allowed to each party, that are prescribed in relation to decisions in the district court of Missouri. 573. None of the provisions of the fourteenth section shall extend to claims of a larger amount than one league square. 574. The act approved the 26th of May 1824, entitled "An act to enable claimants to lands within the limits of the state of Missouri and territory of Arkansas, to institute (a) To justify a decree for entering other lands, the fact of the sale or disposal of the lands by the United States must be averred and proved. United States v. Castant, 12 How. 442. (b) Additional compensation repealed by act 3 March 1847. 9 Stat. 161. (c) See act 8 May 1830, for further extending the powers of the judges of the superior court of the territory of Arkansas, under the act of 26 May 1824. 4 Stat. 399. By this, the act of 1824 was continued in force until 1 July 1831, to enable the courts of Arkansas, by bill of review, to revise decrees founded on frauds, &c. The act 2 March 1831, extended these provisions until 8 May 1832. 4 Stat. 473. For the construction of these acts, see United States v. Samperyac, Hemp. 118. Sampeyreac v. United States, 7 Pet. 222. ed. proceedings to try the validity of their claims," shall be and the same hereby is con- 24 May 1828. tinued in force, that is to say, for the purpose of filing petitions in the manner pre- Time for filing scribed by that act, to and until the 26th day of May in the year 1829; and for the purpose petitions extend of enabling the claimants to obtain a final decision on the validity of their claims in the courts of Missouri and Arkansas, respectively, (the said claims having been exhibited within the time above specified) the said act shall be continued in force to, and until the 26th day of May, in the year 1830, and no longer. And the courts having cognisance of said claims shall decide upon and confirm such as would have been confirmed under the laws, usages and customs of the Spanish government, for two years, from and after the 26th day of May 1828; and all the claims authorized by that act, to be heard and decided, shall be ratified and confirmed to the same extent that the same would be valid if the country in which they lie had remained under the dominion of the sovereignty in which said claims originated. Ibid. 2. ants need not be 575. So much of the said act as subjects the claimants to the payment of costs in any case where the decision may be in favor of their claims, be and the same is hereby Costs to abide the repealed, and the costs shall abide the decision of the cause as in ordinary causes before event. the said court; and so much of the said act as requires the claimants to make adverse Adverse claimclaimants parties to their suits, or to show the court what adverse claimants there may made parties. be to the land claimed of the United States, be also hereby repealed. And the confirma- Effect of confirtions had by virtue of said act, and the patents issued thereon, shall operate only as a relinquishment of title on the part of the United States, and shall, in no wise, affect the right or title, either in law or equity, of adverse claimants of the same land. mation. Ibid. 23. rejected, to have 576. Where any claim, founded on concession, warrant or order of survey, shall be adjudged against and rejected, the claimant or his legal representatives, by descent or Actual settlers purchase, being actual inhabitants and cultivators of the soil, the claim to which shall whose claims are have been rejected, shall have the right of pre-emption, at the minimum price of the pre-emption public lands, so soon as the land shall be surveyed and subdivided by the United States, right. of the quarter-section on which the improvement shall be situate, and so much of every other quarter-section which contains any part of the improvement, as shall be within the limits of the rejected claim. 5 Stat. 676. vived and ex 577. So much of the expired act of the 26th of May 1824, entitled "An act to enable 17 June 1844 § 1. claimants to land within the state of Missouri and territory of Arkansas, to institute proceedings to try the validity of their claims," as related to the state of Missouri, Act of 1821 re(excluding all such portions of said act as referred to the territory of Arkansas), be tended. and is hereby revived and re-enacted, (a) and continued in force for the term of five years, and no longer; (b) and the provisions of that part of the aforesaid act hereby revived and re-enacted shall be and hereby are extended to the states of Louisiana and Arkansas, and to so much of the states of Mississippi and Alabama as is included in the district of country south of the thirty-first degree of north latitude, and between the Mississippi and Perdido rivers, in the same way and with the same rights, powers and jurisdictions, to every extent they can be rendered applicable, as if these states had been enumerated in the original act hereby revived, and the enactments expressly applied to them as to the state of Missouri. And the district court, and the judges thereof, in each of these states, shall have and exercise the like jurisdiction over the land claims, in their respective states and districts, originating with either the Spanish, French or British authorities, as by said act was given to the court, and the judge thereof, in the state of Missouri. I. LANDS IN FLORIDA. I. LAND CLAIMS. 3 Stat. 717. sented to com 578. Every person, or the heirs or representatives of such persons, claiming title to 8 May 1822 lands under any patent, grant, concession or order of survey, dated previous to the 24th day of January 1818, which were valid under the Spanish government, or by the law of Claims to be pre nations, and which were not rejected by the treaty ceding the territory of East and West missioners. Florida to the United States, shall file, before the commissioners, (c) his, her, or their claim, setting forth, particularly, its situation and boundaries, if to be ascertained, with the deraignment of title, (d) where they are not the grantees, or original claimants; which shall be recorded by the secretary, and who, for his services, shall be entitled to demand And recorded. from the claimants ten cents for each hundred words contained in said papers so recorded; he shall be also entitled to twenty-five cents for each subpoena issued: Pro (a) This did not revive and re-enact the supplementary acts of 1826 and 1828; and consequently, petitions must be presented within two years after its passage. United States v. Porche, 12 How. 426. And adverse claimants must be made parties. United States v. Moore, Ibid. 209. (b) See act 27 January 1851, to grant the right of pre-emption to certain purchasers and settlers on the Maison Rouge grant, in the event of the final adjudication of the title in favor of the United States. 9 Stat. 565. And act 3 March 1851, for the settle |