tribution among different States and Territories, has not been considered as in any manner affecting such power. The power of the President, therefore, to direct the survey of the public lands within the whole of that district of country which formed the Territory of Orleans, at any time after the passage of the act of the 3d March, 1805, and after possession, that he might deem proper, has been considered as in full force and unimpaired. By an act passed on the 3d of March, 1819, the reports of the commissioners appointed under the act of April, 1812, were confirmed; land offices were authorized to be established, and further time given for filing private claims. The 11th section of this act authorizes the appointment of a principal deputy surveyor, and defines his duties and limits his powers to the survey of private claims, the only description of surveys authorized by that act. On the passage of the above act, the letter marked B was addressed to Colonel Freeman, the surveyor south of Tennessee, who appointed Mr. S. Dinsmore the principal deputy surveyor. The paper marked C is an extract from his instructions, and they are in strict conformity with the provisions of the 11th section of the act above referred to. Colonel Freeman having, however, subsequently received from this office the letters marked D and E, he directed the surveys of the public land to be made in the districts south of the 31st degree of latitude, and which had formed part of the Territory of Orleans. By an act passed the 28th of February, 1824, the powers of the surveyor of the public lands in the State of Alabama, were extended to that part of the above-mentioned district which lies in that State : this act, however, was not considered as affecting the duties of the principal deputy surveyor. The returns of the township plats for the lands thus attached to Alabama, that have been made by General Coffee, the surveyor of that district, have been duly approved and certified by himself. A reference to the acts appointing principal deputy surveyors in the Territories of Louisiana and Orleans, (L. U. S. vol. 4, pp. 6 and 53,) will show that the powers of these officers are very different from those given to the principal deputy surveyor by the 11th section of the act of the 3d March, 1819. The principal deputy for the western district of Orleans is the only one of the deputies appointed under the first-mentioned acts, who has made return of township plats, and his approval of them has been deemed sufficient to give authenticity to them, he being "authorized to perform, in his district, the duties imposed by law on the Surveyor." Mr. Davis, so far as I understand him, admits that the principal deputy appointed under the act of the 3d of March, 1819, is not authorized by that act to survey the public lands: his certificate, therefore, in relation to the public lands, can be of no effect; but he further contends, that the President is not authorized to direct the public lands south of the 31st degree of latitude, and which formed a part of the Territory of Orleans, to be surveyed or sold; and, therefore, and because he deems it inexpedient for various other reasons, he has positively refused to approve the township plats of lands in that district, so as to give them authenticity. The question of expediency is not now for consideration; and whether the President has or has not authority to offer these lands for sale, is a subject which I have not particularly investigated, and is one with which Mr. Davis has no concern. The real questions are First. Has the President authority to direct the survey of the public lands lying south of the 31st degree of latitude, and which formed a part of the Territory of Orleans? Second. Is the surveyor south of Tennessee, and the surveyor for the State of Alabama, respectively, or the principal deputy surveyor appointed under the act of the 3d of March, 1819, the proper officer to approve and certify the township plats containing public lands which are directed to be returned to the land offices and to the Treasury, (L. U. S. vol. 2, p. 534,) in that district of country lying south of the 31st degree of latitude, and which formed a part of the Territory of Orleans, so as to give authenticity to them? OFFICE OF THE ATTORNEY GENERAL U. S., September 13, 1827. SIR: I have examined the statement of the Commissioner of the General Land Office, relative to Mr. Davis, the surveyor of the public lands south of Tennessee, together with the several documents presented with that statement, and the acts of Congress referred to by the Commissioner; and on the two questions presented by the Commissioner for my opinion, have the honor to state- 1. That I entertain no doubt of the authority of the President to order a survey of the public lands lying south of the 31st degree of latitude, and which formed a part of the Territory of Orleans. 2. Although there is more ground for doubt on this question, I am of opinion that the surveyor south of Tennessee and the surveyor for the State of Alabama, respectively, are the proper officers to approve and certify the township plats of public lands which are directed to be returned to the land officers, and to the Treasury Department, in that district of country lying south of the 31st degree of latitude, and which formed a part of the Territory of Orleans, so as to give authenticity to them. I have, &c. The SECRETARY of the Treasury. WM. WIRT. No. 30.-(Ops. Aty. Gen.; G. L. O. p. 40.) No patent should issue for lands inadvertently sold. Sales of land excepted from sale by act of Congress are void for want of authority. The subsequent decision of a court as to the invalidity of the claim, causing the exception, will not correct the original error. A purchaser of a tract, as to part of which there was authority to sell, and as to the other part no authority, has the option to avoid the entire contract or to receive a patent for such part as could be sold.* OFFICE OF THE ATTORNEY GENERAL U. S., October 22, 1828. SIR: On the case stated from the General Land Office, under date of the 6th instant, it is my opinion that no patent ought to issue for lands which have been inadvertently sold without any legal authority to sell them; the mistake having been brought to the knowledge of the Commissioner of the General Land Office before the emanation of the patent. Lands excepted from sale by acts of Congress ought not to be sold, and if they have been inadvertently sold, the sale is void for want of authority. To issue a patent for lands which the Government had no power to sell, is a measure which I cannot advise. No subsequent decision of a court, as to the invalidity of the confirmed claims, whose pendency led Congress to except these lands from public sale, can correct the original error. For, after such a decision, the result will still be that these lands have never yet been sold. They have not been sold, because there was no power to sell them; the sale was void in its inception, and such lands remain among the unsold lands of the United States, and must be offered again for sale, when there shall be power to offer them. It will be far better to undo, or to consider as already absolutely undone, what has been done without authority. Those sales are now, in legal contemplation, mere nullities. And with the discovery and full knowledge of this fact before us, why should we persist in the error, and affect to clothe with the solemnity of a patent, an act which we know to be utterly null and void? My opinion and advice is, that the purchasers for the United States be informed of these mistakes; and that, in so far as their purchases have included lands inadvertently sold, without authority, they are void. Cases may arise in which the same purchase has included lands which there was authority to sell, with other lands which there was no author Note by the Solicitor of the General Land Office.-The cases stated for this opinion may be found in vol. 20, pages 63 and 64. They were, in substance, as follows: Sundry tracts had been sold at public sale and private entry, in ignorance that they were claimed by virtue of either a Spanish or French unconfirmed title, and caveats had been filed. The 11th section of the act of 26th May, 1824, entitled "An act enabling the claimants to lands within the State of Missouri and Territory of Arkansas to institute proceedings to try the validity of their claims," provided that if any of the lands decreed to the claimants under that act had been sold or otherwise disposed of, the party might select the like quantity on any of the public lands. Mr. Graham stated that, owing to the peculiar provisions of this section, he doubted whether the claimants could establish a legal title, and whether patents ought not to issue in all such cases, notwithM. B. standing the provisions of the 10th section of the act of 15th February, 1811. ity to sell; and the purchaser may have been induced to make the entire purchase by the value which he attached to the lands which there was no authority to sell. In such a case, the contract being one and entire, and founded in mistake, it ought to be considered wholly void, at the option of the purchaser; or, if he preferred it, he might receive his patent for the land which there was authority to sell, excluding from it that which there was no authority to sell. I have, &c. The SECRETARY of the Treasury. WM. WIRT. No. 31. (Ops. Aty. Gen.; G. L. O. p. 41.) An appeal under act of 26th May, 1824, must be taken within twelve months; but as an attempt for redress is to be made before Supreme Court of the United States, patents are to be suspended. Office of the ATTORNEY GENERAL U. S., October 27, 1828. SIR In answer to your letter of the 27th ultimo, I have to observe, that in consequence of the misapprehension of the district attorney of Arkansas, in relation to the 9th section of the act of 26th May, 1824, the statement required by that section was not forwarded to me in the case of Sylvanus Phillips, until after 12 months from the time of the rendition of the decree in his case; and by a communication from that office, received since my return, I learn that his motion for appeals, in that and other cases, made at the last term of the superior court of the Territory, was rejected on the ground of its not having been made in time. It is my purpose to try whether the Supreme Court can apply a remedy to the case, of which I entertain very great doubts; but in the mean time it may be as well to suspend the patents. GEO. GRAHAM, Esq. I have, &c. General Land Office. WM. WIRT. No. 32.-(Ops. Aty. Gen.; G. L. O. p. 42.) The act of 6th January, 1829, is confined to the settlers dislodged by the Cherokee treaty of May, 1828. OFFICE OF THE ATTORNEY GENERAL U. S., January 17, 1829. SIR My opinion on the case stated from the Land Office is, that the act of the 6th instant, "respecting the location of certain land claims in the Territory of Arkansas, and for other purposes," is confined to the same class of settlers embraced by the act of the 24th May, 1828, to wit, to the settlers dislodged by the treaty with the Cherokees of May, 1828. I have, &c. Hon. R. RUSH, WM. WIRT. No. 33.-(Ops. Aty. Gen.; G. L. O. p. 42.) A Spanish grant made upon false suggestion would have been cancelled by the Spanish sovereign, and an American court of equity should not lend its aid to enforce such grant. A grant made December 2, 1820, was in violation of the 8th article of the treaty of cession. The settled policy of Spain was to parcel out her colonial domain with reference to the single object of population, and grants for the purpose of speculation were not tolerated. It is competent for the sovereign making the grant only to release the condition on which it was made. Matters in excuse of non-compliance are not the subject of judicial inquiry. APRIL 1, 1829. SIR: Owing to professional engagements contracted by Mr. Berrien before his appointment as Attorney General, the case of Arredondo, among others, has been placed by the President under my direction, and I proceed, at his desire, to answer your letter of the 4th February, which, with the accompanying documents, has been handed over to me for this purpose. Your answer is so full and so judiciously drawn, that it leaves very little for me to suggest in the way of amendment. There are a few points, however, to which I should be glad to call your attention, and which you will please to consider not as substitutes for any ground taken in your answers, but as additional and supplemental thereto. i. It is left questionable by the recitals in the supposed grants whether Arredondo did not represent himself and family as settled on the lands in question before the grant; it is possible that the meaning of the recital is, that he was settled with his family in East Florida, merely, and not on the land. If, however, the representation was, that he was settled with his family on the land, and the fact were not so, it ought to be directly denied, and relied on as a misrepresentation which should avoid the grant. 2. It is very clear from the recitals in the grant that the land was represented to the Spanish intendant as vacant, having been abandoned by the Indians who had formerly occupied it, and that it was upon this representation that he declared the lands to be Crown lands, and granted them to Arredondo and son, if, indeed, the grant be a genuine one; whereas I am told they were not vacant, nor abandoned by the Indians, but on the contrary that they had constantly been and still were occupied by the Indians at the date of the alleged grant. General Call, who is here, and is also engaged in this case, supposes that the Surveyor Pintado could never have gone actually upon the land, so as to qualify himself to support this representation of this petition, which led to the grant; but, whether he did or not, he, General Call, understands this representation to have been false in point of fact. If so, I should deem it advisable that the answer should recite this misrepresentation, and take the ground distinctly, that if the grant did proceed from competent Spanish authority, (which you will still deny,) it was fraudulently and surreptitiously obtained, by imposing on the Spanish authorities a false representation of facts; and as it would have been cancelled by the Spanish sovereign on that ground, so it may be cancelled by the sovereign authority of the United States; and that a court of equity cannot, consistently with the principles which govern that tribunal, lend its aid to give effect to a grant obtained by fraud and misrepresentation. 6 |