Gaines, et al. v. Hale & Rector. [DECEMBER executing or recording surveys of land, within the limits of the Territories of Missouri and Illinois," to mean all recorder's offices, rather than surveyor's offices, through ignorance of the fact that the notice of location and plat and certificate were recorded in the surveyor's office, not to the end of furnishing evidence of title to the claimants, but to have evidence there to show that the land was appropriated according to the New Madrid act, and for the convenience of the surveyor's department. Lessieure v. Price, 12 How., 71. The next question that presents itself is, what right did Rector acquire under this second survey, made by John C. Hale, in February 28, 1838? In the case of Hale v. Gaines et al. 22 How. 158, Hale, who by agreement with Rector, has a two-fifths interest in the New Madrid claim, pressed upon the court all the legal and equitable grounds on which Rector bases his right of relief. Justice CATRON, who announced the decision of the court, very carefully considered and passed upon the rights that had accrued under the New Madrid certificate. He says: "The defendant (Hale) relied upon a survey made in June, 1838, founded upon a New Madrid certificate for two hundred arpents. To support this survey an application was produced, dated 27th January, 1819, signed by S. Hammond and Elias Rector, addressed to William Rector, surveyor of the public lands, etc., asking to have surveyed and be allowed to enter the recorder's certificate for two hundred arpents, granted by him to Francis Langlois, or his legal representatives, and dated the 26th of November, 1818, (No. 467.) The survey to be made in a square tract, the lines to correspond to the cardinal points, and to include the Hot Springs in the center. In 1818 the springs were in the Indian country, to which, of course, no public surveys extended. And, as the act of 1815, providing for the New Madrid sufferers, only allowed them to enter their warrants on lands, the sale of which "was authorized by law, the unsurveyed lands could not be legally appropriated, and of necessity the surveyor general disregarded the applica TERM, 1870.] Gaines, et al. v. Hale & Rector. tion to have a survey made by Langlois, and thus the claim stood from 1818 to 1838." The act of April 26, 1822, validated locations of New Madrid certificates then existing, and which had been made in advance of the public surveys, but the second section of the act declared that future locations should conform to the public surveys, and that all such warrants should be located within one year after the passage of the act. of the act. As the public surveys, then existing in Missouri and Arkansas territories, were open to satisfy these claims, there was no difficulty in complying with the act of 1822. Reliance is placed on the act of Congress of March, 1843, to maintain the survey of 1838, of the New Madrid certificate. That act provides that locations, before that time made on New Madrid warrants, on the south side of Arkansas river, if made in pursuance of the act of 1815, in other respects, shall be perfected into grants in like manner as if the Indian title to the land on the south side of the river had been completely extinguished at the time of the passage of said act of 1815. The act of 1843 does not apply to the survey and location of Langlois, made in 1838, for several reasons : First. The sale of the land thus surveyed was not authorized by law-the act of April 20, 1832, having reserved from location or sale the Hot Springs, and four sections of land including them, as their center. Second. The attempted location was void, because barred by the act of 26th of April, 1822, which act was not repealed or modified by the act of 1843. This act referred to locations made on the south of the river Arkansas, of lands regularly surveyed and subject to sale, and which locations had been made on or before the 26th of April, 1823, when the bar was interposed. We are of the opinion that the New Madrid survey of 1838 was altogether invalid, and properly rejected by the State courts. Barry v. Gamble, 3 How. 51; Rector v. Ashley, 6 Wallace, 142. Gaines, et al. v. Hale & Rector. [DECEMBER We have not forgotten that in several of the cases cited, it was the legal title which was decided, and that in the present case, it is the equitable title we are required to pass upon; but, as was remarked in Rector v. Ashley, 6 Wallace, 151, the rights of claimants are to be measured by the acts of Congress, and not exclusively by what he may or may not be able to do; and if a sound construction of that act shows that he acquired no vested interest in the land until the officers of the government had surveyed the land, and until that survey is filed in the office of the recorder, and approved by him, then, as claimant's rights are created by that statute, they must be governed by its provisions, whether they be hard or lenient. If it be possible for any case to come within the rule of res adjudicata, this appears to do so. Hale and Rector allege, in their bills, that they have made valuable improvements on that portion of the land in controversy, now in their possession; that Belding has no rights, legal or equitable, to the land in controversy, and pray the court to grant an injunction perpetually restraining the enforcement of the judgments in ejectment. It is insisted, on the other hand, that the validity of Belding's claim is not now in question; that the plaintiffs must recover on the strength of their own title, and not on the weakness of that of the defendant; that Hale and Rector are trespassers; that they have no rights to maintain, no injuries to redress. We concede the legal position taken by the counsel for Belding to be true, but not the facts; settlers making valuable improvements on the public lands, which at the time are not reserved for the exclusive use of the government, have not been regarded as trespassers. This State, by statute, treats and protects such improvements as property, and enforces the right i of possession as against all persons who have neither a legal or equitable title to the land. In the case of Pelham, adm'r. v. Wilson, et al., 4 Ark. 289, the court say: "The interest that a person has in an improvement, TERM, 1870.] Gaines, et al. v. Hale & Rector. on the public land, is of a peculiar kind, known only to our laws. It is a possessory right against all the world but the United States." In Cain v. Leslie, 15 Ark. 312, the court say: "A sale of an improvement on public land is recognized by statute, and the purchaser acquires a possessory right which the law protects, and which is good against every body but the government or its grantee." Hughes v. Sloan, 8 Ark. 146; McFarland v. Matthias, 10 Ark. 560. The Federal government, while it punishes those who are purely trespassers, and commit depredations on the public lands, has uniformly rewarded those who, in good faith, have made valuable improvements. If the legal representatives of Belding have any rights here, they have sprung from just such trespasses, and it is difficult to perceive why the same act in Belding should be rewarded, and in Hale and Rector treated as an offense. It appears that Hale and Rector have made improvements worth fifty thousand dollars, and a court of equity that would permit a third party, without right, through a voidable and inequitable judgment, to take possession of this property, would sadly fail in executing the object for which it was established. Though neither Hale nor Rector have any rights which, measured by the acts of Congress, have as yet matured into a title to the land, it does not follow that they have no privileges or immunities whatever. They are tenants, at sufferance, of whoever may have the legal title, by the laws of this State, entitled to the possession of their improvements, and cannot be ousted except by some one who has a superior right of possession. We shall therefore proceed to examine what rights may have accrued to Gaines and others, as the legal representatives of Belding; and if we find that they have no legal or equitable claim, as against Hale or Rector, to the lands in their possession, that the judgment at law is irregular and voidable, as it Gaines, et al. v. Hale & Rector. [DECEMBER is alleged to be, the prayer for a perpetual injunction will be granted. The judgments at law in the Beldings' favor, were based upon a certificate of entry, which, on the 7th of June, 1860, by order of the secretary of the Interior to the commissioner of the general land office, was cancelled. The act of March 3, 1849, gives to the secretary of the Interior the power of supervision and appeal in all matters relating to the general land office, co-extensive with the authority of the commissioner, to adjudge, and it is well settled that either the commissioner of the general land office or the secretary of the interior may cancel a certificate of entry, or a patent, whenever the same has been improperly issued. The land officers perform a ministerial duty, and, though it may be conceded that when rights have vested, such cancellation would not affect or divest those rights, yet, if erroneously issued, the error should be corrected, in order that parties who have no legal or equitable title to the land, may not, by means of a worthless paper, oust those who have rights which are protected either by Federal or State laws. Maguire v. Tyler, 1 Block, 195; Dozwell v. De La Lauza et al., 20 How. 29; Belle v. Hearne et al. 19 How. 252. It is therefore proper for us to inquire whether the action of the secretary of the Interior, in cancelling the certificate of entry, was correct, and the effect of such cancellation. Belding's pre-emption is claimed under the act of 29th May, 1830, which provides "that every settler or occupant of the public lands, prior to the passage of this act, who is now in possession, and cultivated any part thereof in the year 1829, shall be, and he is hereby authorized to enter with the regis ter of the land office, for the district in which lands may lie, by legal subdivisions, any number of acres, not more than one hundred and sixty, or to a quarter section, to include his improvements, upon paying to the United States the minimum price of said land.” Section 3 provided "that prior to any entries being made, |