Gaines, et al. v. Hale & Rector. [DECEMBER Townsend v. Brown 4 Zabr. 80; Mayor, etc. v. Ohio and Penn. R. R. Co. 26 Penn. S. R. 355; Green's Estate, 4 Md. Chy. Decis. 349; McLeed v. Burroughs, 9. Geo. 213; Harrison v. Young, lb. 359; Hagan v. Campbell, 8 Port., 9. Continuity of possession is the vital principle of a pre-emption; and a voluntary removal will be deemed an abandonment. Jacobs v. Figans, 25 Penn. S. R. 45; Watson v. Gilday, 11 Serg. & R. 340; Farmer's Bank v. Woods, 11 Penn. S. R. 113; Goodman v. Losey, 3 Watts and S. 526; Bledsoe v. Cains, 10 Texas, 458; Simpson v McLemore, 8 Ib. 448; Clemens v. Gottshall, 4 Yeates, 330; Byron v. Sarpy, 18 Mo., 460; Page v. Scheibel, 11 Ib. 167. No reconveyance by Paxton is anywhere shown. Nothing but a reconveyance could restore the title. Strawn v. Norris, 21 Ark. 82; Simpson r. McLemore, 8 Tex. 448. In Burgess v. Gray, 16 How. 64, the Supreme Court held that the courts could not correct mere errors into which an officer of the land office had fallen, in making a decision upon a question of entry. Where any matter is adjudicated by a tribunal of peculiar and exclusive jurisdiction, such adjudication is conclusive upon all other courts, unless impeached upon the ground of fraud. Wilcox v. Jackson, 13 Pet. 511; Vorhees v. U. S. Bank, 10 Pet., 478; U. S. v. Arredondo, 6 Ib. 729; Foley v. Harrison, 15 How. 448; Bordon v. State, 11 Ark. 547; Nick's heirs v. Rector, 4 Ark. 284; 2 Laws, Instructions and Opinions, (Ed. 1868,) p. 85, No. 57; Gaines v. Hale, 16 Ark. 25; Mithchell v. Cobb, 13 Ala. 139; McGhee v. Wright, 16 Ill. 557; Lewis v. Lewis, 9 Missouri, 186. The policy of the government has been to protect the Indians, no less from their own improvidence, than from the oppression so easily exercised over them. So individals have not been allowed to acquire titles to land from them even by purchase. Gaines v. Nicholson, 9 How., 365; Cherokee Nation v. State of Georgia, 5 Pet. 17; People v. Dibble, 16 N. Y. (2 Smith,) 212; Dale v. Irish, 2 Barb. Sup. Ct. R. 641; Fellows v. Lee, 5 Denio, 628; Public Lands, Laws, Instructions and Opinions, Pt. II. p. TERM, 1870.] Gaines, et al. o. Hale & Rector. 29, No 25; Ib. p. 92, No. 59; see, also, ib. No. 54, p. 81; No. 10, p. 10: No. 11, p. 11; No. 12, p. 13; No. 23, p. 25; No. 787, p. 816; Strong v. Waterman, 11 Paige, 607. But the same territory had been formerly ceded to the government by the treaty with the Osage Indians in 1808. See 7 U. S. Stat. at Large, 107. If it had included these lands, we are not able to see how it would effect the question, since the United States afterwards acknowledged the title of the Quapaw Indians by purchase, and so is now estopped from denying it. Sherwood v. Vanderburg, 2 Hill, 307; Boone v. Porter, 17 Wend., 164; Davis v. Darrow, 12 ib., 67; Hitchcock v. Harrington, 6 Johns., 293; Collins v. Terry, 7 Ib., 279; 2 1b., 123; 19 Maine, 69; 1 Ib., 183; 12 Wend., 57; 14 Johns.. 225; Threadgill, v. Pintard, ubi. sup. A conveyance by a pre-emptor, before the issuance of a patent, is absolutely void. Glenn v. Thistle, 23 Miss., (1 Cush.,) 42; Craig v. Tappin, 2 Sandf, Chy., 78; Moore v. Jordon, 14 La. An., 414; Terison v. Martin, 13 Ala., 29; Forbis v Bowen, 1 A. K. Marsh., 407. It becomes plain that if Percifull had no rights to his preemption, then he was not injured by the establishment of Belding's pre-emption. Graham v. Roark, 23 Ark., 19; Cunningham v. Ashley, 12 Ark., 303, 320; Jones v. Reyburn, 11 lb., 389; 1 Sto. Eq. Jur., sec. 203; Halls r. Thompson, Smedes & M., 489; Young v. Bumpass, Freeman's Chy. R., 250; Juzan v. Toulmine, 9 Ala., 684; Conrod v. Nicholl, 4 Pet, 296, 310; U. S. v. Arredondo, 6 Ib., 716; Meux v. Anthony, 11 Ark. 418; Edmundson v. Hildreth, 16 Ill. 215; Wynn v. Morris, 16 Ark. 43.4. The tenant may deny the landlord's title after the end of the time, and he may show that the landlord's title has expired. Smith's Landlord and Ten., 81; Co. Litt., 476; 57 Eng. Common Law, 400; 2 Smith's L. C., 660; 1 Vermont, 302. The relationship of landlord and tenant cannot affect the question. Pelham v. Wilson, 4 Ark. 289; Mc Farland v. Mathis, 10 Ark. 560; Floyd v. Ricks, 14 Ark., 290; Graham v. Roark, Gaines, et al. v. Hale & Rector. [DECEMBER 23 Ark. 23; 2 Land Laws, Instructions and Opin., 367, 542; 3 ib., 129, 182, 188; Jennings v. De Cordova, 20 Texas, 508; Kennedy v. Wiggins, 5 Humph., 127; Reese v. (David) Crockett, 8 Yerg., 133; Loftus v. Mitchell, 3 A. K. Marsh., 594; Davis v. Gray, 3 Littell, 450. In the case of Rector v. Ashley, 6 Wallace, 143, the court held that: "in perfecting a title to land located under the act of February 17, 1815, for the benefit of the inhabitants of New Madrid, no vested interest in the land, nor any appropriation of it binding on the United States, was affected until after the survey was made and returned into the office of the recorder of land titles." Bagnell v. Broderick, 13 Pet., 436; Barry v. Gamble, 3 How., 51; Lessieur v. Price, 12 ib., 60; Rector v. Ashley, 6 Wallace, 142; Rector v. Ashley, 6 Wall., 151; Rector v. Gaines, 19 Ark., 84. Such claims, by the act of 1815, could only be located on lands which were public, and the sale of which was authorized by law. Hale v. Gaines, 22 How. 158. By an act of April 26, 1822, the time for making locations of New Madrid claims was limited to one gear from that date, at which period they were to become void, if not before located. And the Supreme Court expressly held that this identical claim of Langlois did become void on that day, and that it was not revived by the act of 1843. Hales v. Gaines, 22 How. 159. The land had already been reserved from sale by the act of April 20, 1832. Because Belding had acquired the land by pre-emption under the act of May 29, 1830, this pre-emption would neces-sarily prevent the location of a New Madrid certificate on the land, as Rector had acquired no vested interest in the land at that time. Lytle v. State, 9. How. 334; McAfee v. Keirr, 6 Sm. & M. 789; Taylor v. Brown, 5 Cranch. 234; McArthur v. Browder, 4 Wheat. 488; Fenley v. Williams, 9 Cranch, 164; Isaacs v. Steele, 3 Scam. 79; Benner v. Manlove, Ib. 439; Gaines v. Hale 16 Ark. 9; Winn v. Morris, 1b. 434. BELDINGS' CLAIM.-The plaintiffs have asserted the validity TERM, 1870.] Gaines, et al. v. Hale & Rector. of their titles, and they must sustain them, or their bills must be dismissed. Rice v. Harrell, 24 Ark. 402. The act under which Percifull claimed, of April 12, 1814, required inhabitancy and cultivation, but the act of May 29, 1830, required no more than previous cultivation and settlement, or occupancy. Wynn v. Morris, 16 Ark. 426; Gaines v. Hale, 16 Ark. 19. If Belding was entitled to a pre-emption, his interest vested immediately on the passage of the act. Brown v. Clements, S How. 666. No reservation of land can be made after a citizen has acquired a right to it under a pre-emption law. U. S. v. Fitzgerald, 15 Pet. 407; Brown v. Clements, 3 How. 666, Lytle v. State, 9 How. 333; Marks v. Dickinson, 20 How. 501; Stephens v. McCargo, 9 Wheat, 502; Doe v. Stephenson, 9 Tanner, (Ind.) 148; Lytle v. State, 17 Ark. 644; Wynn v. Morris, 16 Ark. 414; Rector v. Gaines, 19 Ark. 80; Lytle v. State, 9 How. 314; Lytle v. State, 17 Ark. 608. In Evans v. St. Louis Public Schools, 32 Missouri, 27, it was properly held that plaintiff's title having been held by the Supreme Court of the United States to be void, he could not file a bill to hold the defendant a trustee for his use. And these decisions, made on this same subject, are final, conclusive, irrevocable and unimpeachable; so much so, that even if this court should now conclude them to be wrong, it could not change them. They are as matters adjudicated and forever at rest. Story v. Livingston, 13 Pet. 367; Nelson v. Hubbard, 13 Ark. 256: Fortenbury v. Frazier, 5 lb. 202; Porter v. Hanley, 10 b. 191; Walker v. Walker, 7 ib. 556; Pulaski county v. Lincoln, 13 ib. 104; Rector v. Danley, 14 ib. 307; Story ex parte, 12 Pet. 339; Sibbald v. United States, ib. 492; Wirt v. Brasheok, 14 ib. 54; Boyle v. Grundy, 8 ib. 190. Gaines, et al. v. Hale & Rector. [DECEMBER English, Gantt & English, Clark & Williams and H. Flanagin, for Hale. The several claims to the tract of land in controversy may be classed and discussed in the following order: 1. THE PERCIFUL PRE-EMPTION CLAIM, represented by John C. Hale, the successful claimant in the court below. 2. THE BELDING PRE-EMPTION CLAIM, represented by William H. Gaines, and others, heirs of Belding. 3. THE NEW MADRID CLAIM, represented by Henry M. Rector, which covers part of the tract and goes over on the adjoining tract. 1. THE PERCIFULL PRE-EMPTION CLAIM.-This claim is founded upon the pre-emption act of 12th of April, 1814, and at the time of the passage of this act, the land on which the Hot Springs are situated, was part of the territory of Missouri. U. S. St. L. vol. 3, pp. 122–3; Bright. Dig. p. 511; 2 St. L. 283; 2 St. L. 743; Geyer's Dig. 30; Geyer's Dig. Laws of Mo. sec. 7, p. 133; 3 Stat. L. 493. The tract in controversy was never surveyed until 1838. We submit that the evidence clearly shows that Percifull, under whom Hale claims, cultivated and inhabited the land in controversy, prior to the 12th of April, 1814, and continued to occupy and possess the same, either by himself or tenants, from about the year 1809, up to 1836, when he died. That after the land was surveyed, in 1838, and before it was offered at public sale, (and it never was), the proof of the pre-emption right of John Percifull, under act of 12th April, 1814, was filed with the register and receiver of the land office at Washington, Arkansas, by Sarah Percifull, widow, and David Percifull, son and only heir of John Percifull. See Folio Trans. p. 61 to 71. The application was rejected on the ground that part of the land claimed had been previously located by New Madrid certificate, No. 467, in the name of Francis Langlois, or his legal representatives—and not for the want of proof of cultivation or inhabitancy by Percifull. It will be observed that |