Mitchell v. Cobb

DARG AN, J. By the first question presented to the consideration of the court, the plaintiff in error seeks to review the judgment of the register and receiver, in granting the pre-emption certificate to the defendant in error. This he cannot be permitted to do. By the act of 1841, (Peter’s Dig. vol. 5, p. 456,) all questions as to the right of pre-emption, arising between different settlers, shall be settled by the register and receiver of the district in which the land is situated, subject to an appeal to, and a revision by, the secretary of the treasury. The plaintiff and defendant in error had a controversy as to the right of pre-emption to the land now sought to be recovered. This controversy was settled by the register and receiver, in favor of the defendant in error. The plaintiff appealed to the secretary of the treasury, and his decision was also in favor of the defendant in error; and a pre-emption certificate issued to him. This decision is therefore final. Between the parties, it is no longer a question that can be litigated, and a court of law cannot review, or re-investigate the rights of the parties to enter this tract of land, under the act alluded to. But the decision of the register and receiver, when confirmed by the decision of the secretary of the treasury, on an' appeal, is final and conclusive as to the rights of the parties. It is unnecessary to speculate on the question, whether in law or in equity, the plaintiff would be entitled to any relief, if the defendant in error had committed a fraud on the rights of the plaintiff, in procuring a decision in his favor, or if the decision was procured by fraudulent means — for the evidence in this case does not show that the defendant in error was guilty of any fraud. The circuit court, therefore, did not err in rejecting the proof tending to show that the plaintiff was entitled to enter the land, under the act of 1841, and that the defendant was not. It is unnecessary to examine whether the land sought to be recovered, was subject to entry under the act of 1841, for if we were to admit, that an Indian reservation under the treaty of 1832, entered into between the United States and the Creek tribe, is not subject to entry under the pre-emption act referred to, it is very certain, that mere parol proof cannot be received to show that the land was part of an Indian 140 reservation under that treaty. The lands of the Creek tribe have been surveyed, in pursuance of the terms of the treaty, and the reservations have been selected and located in pursuance thereof. The evidence of these locations exists in writing, at the general land office, and affords the best proof of the fact, whether the land sued for was, or was not, an Indian reservation under the treaty. Without, therefore, expressing any opinion, whether an Indian reservation under this act is subject to entry, or whether the defendant could take advantage of it in this suit, if it was not, it is sufficient to say, that the court did not err in rejecting the parol proof offered to show, that the land sued for, was part of an Indian reservation. It follows, that there is no error in the record, and the judgment of the circuit court is therefore affirmed.