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NATHAN E. HOOPER, LOUISA J. HOOPER, AND AMANDA E. HOOPER, MINORS, BY ABSALOM FOWLER, THEIR NEXT FRIEND, PLAINTIFFS IN ERROR, v. JACOB SCHEIMER.

December 1, 1859

NATHAN E. HOOPER, LOUISA J. HOOPER, AND AMANDA E. HOOPER, MINORS, BY ABSALOM FOWLER, THEIR NEXT FRIEND, PLAINTIFFS IN ERROR,
v.
JACOB SCHEIMER.



THIS case was brought up by writ of error from the Circuit Court of the United States for the eastern district of Arkansas.

It was an ejectment brought by the Hoopers against Scheimer, for an undivided one-fourth part of lots numbered one, two, three, four, five, six, seven, eight, nine, ten, eleven, and twelve, in block numbered ten, in that part of the city of Little Rock lying east of the Quapaw line, and known as Governor Pope's addition; and are embraced in the northwest fractional quarter of section number two, in township one north, range twelve west.

The plea was, not guilty, &c.; and upon the trial of the issue by a jury, a verdict for the defendant was returned, and he had judgment for costs.

The mode of bringing an ejectment in Arkansas is merely to state in the declaration that the plaintiff was entitled to the possession of the property, and that the defendant entered upon it and ejected the plaintiff therefrom.

The Hoopers were the heirs of Cloyes, and claimed under his pre-emption, which has been mentioned more than once in these reports.

The defendant claimed under a patent embracing the lots in controversy, to the reading of which in evidence the plaintiffs objected, on the ground that it was inoperative and void as to the said northwest fractional quarter on which said pre-emption had been established, because said fractional quarter had been previously appropriated to the private use of said Nathan Cloyes, deceased, and that such patent had been issued without authority, in violation and without warrant of law, and for land not subject to be granted or patented; but the court overruled the objection, and permitted the patent to be read; whereupon the plaintiffs excepted.

There was other evidence on both sides given upon the trial, but it is not necessary to mention it in this report.

After the evidence was finished, the plaintiffs offered two prayers to the court, the purport of which was to declare the patent inoperative and void; which prayers were refused. The defendant offered five which were granted, of which it is only necessary, in this report, to notice the two following.

1. The patent from the United States, conveying the fee to the northwest fractional quarter of section two, in township one north, of range twelve west, to the grantee therein named, dated 2d November, 1833, not appearing to be void, is a complete and paramount legal title, and must prevail in this action over the title of the plaintiffs, and any equities that may exist between parties behind it can only be assisted and be made available in a court of chancery, but cannot affect the patent in this action; and if the jury believe that the undivided interest mentioned in the declaration is embraced in the patent as a portion of the said tract of land, the finding of the jury should be for the defendant.

2. That the action of ejectment is founded on the legal title, and the plaintiffs must recover on the strength of their own title; that a patent from the United States is a higher and better legal title, and must prevail, in an action of ejectment, over an entry with the register and receiver or a pre-emption right under the laws of the United States, notwithstanding the State statute may authorize an action of ejectment to be instituted on the latter, and maintained against any person not holding under a superior title.

The case was submitted on printed arguments by Mr. Stillwell for the plaintiffs in error, and Mr. Hempstead for the defendant.

Mr. Stillwell's first point was this: Can the plaintiffs, claiming under a grant of pre-emption, recover against the defendant, claiming under a patent issued subsequent to the pre-emption?

We respectfully submit, that by the act of Congress of 29th May, 1830, the N. W. fractional quarter section 2, 1 N., 12 W., was appropriated to the use of the occupant, Nathan Cloyes, was not subject to be granted to any other person, by Congress or any officer of the United States, until the expiration of the time allowed him to make payment therefor, by that act and the act of 15th July, 1832; and it appearing that payment was made by his heirs within the time, the patent was void.

Perry v. O'Hanlon, 11 Missouri Rep., 595.

McAfee v. Keirn, 7 Smed. and Marsh Rep., 789.

Nicks v. Rector, 4 Ark. Rep., 283, 284.

Wynn v. Garland, 16 Ark. Rep., 454.

13 Pet. Rep., 513; 6 Ib., 738.

5 Wheat. Rep., 303.

Cromelin v. Waiter, 9 Ala. Rep., (N. S.,) 605.

Stoddard v. Chambers, 2 How. Rep., 318.

10 Smed. and Marsh, (Miss.,) 461.

7 Smed. and Marsh, (Miss.,) 366.

2 Laws Ins. and Ops., p. 16, No. 15.

2 Laws Ins. and Ops., No. 39, 40, p. 1045.

8 Mo. Rep., 94.

6 Cow. Rep., 282.

A pre-emption is a legal vested right.

9 How. U. S. R., 333.

4 Ark. Rep., 283.

The patent issued to Gov. Pope being void, as issued without authority, may be impeached in a court of law.

6 Cond. Rep., 358; 10 Johns. Rep., 26.

4 Cond. Rep., 653; 5 Cond Rep., 724, 664.

11 Mo. Rep., 595; 16 Ohio Rep., 66.

8 Mo. Rep., 94.

Under the statute of Arkansas, the patent certificate is of equal grade and dignity with the patent itself.

Rev. Stat. of Ark., p. 344, ch. 53, secs. 1 and 2.

McClairen v. Wicker, 8 Ark. Rep., 195.

Penn v. O'Hanlon, 11 Mo. Rep., 595.

Morton v. Blankenship, 5 Ib. Rep., 356.

Burner v. Marlow, 1 Scum. (Ill.) Rep., 162.

James v. Steel, 3 ib., 99.

And is a better title than a patent founded on a subsequent entry, within the meaning of the statute.

Pettigrew v. Shirley, 9 Mo. Rep., 688.

5 ib., 350; 11 ib., 595.

The patent could not affect the pre-existing title of the ancestor of the plaintiffs.

N. O. v. Armas, 9 Pet. Rep., 236.

U. S. v. Arredondo, 6 ib., 738.

Catlin v. Jackson, 8 Johns. Rep., 555.

Jackson v. Covey, ib., 388.

Fletcher v. Peck, 2 Cond. Rep., 321.

Nicks v. Rector, 4 Ark. Rep., 283.

And extraneous evidence was admissible to show that the patent was void, for want of authority to issue it.

Polk's Lessee v. Wendell, 3 Cond. Rep., 294.

4 ib., 653.

2 How. U. S. Rep., 317, et seq.

Collins v. Beaumin, 1 Mo. Rep., 385, (540.)

The title of the plaintiffs related to the date of the pre-emption act, (29th May, 1830.) The making of proof of occupation and cultivation, the adjudication of the right by the land officers, and the payment of the purchase money, were successive steps to perfect the right, and are to be regarded as having been done on that day.

Pettigrew v. Shirley, 9 Mo. Rep., 688.

Wynn v. Garland, 16 Ark. Rep., 454.

And, consequently, the intervening ...


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