majority">Scott, J.,

delivered the opinion of the court.

Hunter sued Allison in an action of ejectment, in which he obtained judgment. The title of‘Hunter was a certificate of the United States Receiver.

Allison claimed under Watson, and offered to prove, amongst other things, that the entry was fraudulent and void for the want of authority in the officer to issue, for the reason that the land, at the time of the entry, was subject to the pre-emption claim of Watson; and that the land was not subject to private entry at the date of the certificate, because it had never been offered at public sale, proclaimed by the President of the United States. All this evidence was rejected, and its rejection is the ground on -which a reversal of the judgment is sought.

The tract of land in controversy, it seems, is a portion of a large Spanish concession made to Antoine Dubreuil, which was reversed from sale by the 10th section of (he act of Congress of the 3rd of March, 1811, providing for the final adjustment of claims to lands in the territories of Orleans and Louisiana, notice of the claim having been previously filed with the recorder of land titles, in pursuance of the laws of the United States. The reservation of Dubreuil’s claim continued until the expiration of the act of 26th May, 1824, enabling claimants to institute proceedings to try the validity of their claims, and the several acts amendatory thereto, which occurred on the 26th of May, 1830.

It appears that the secretary of the treausury on the 10th of June, 1818, caused the recorder of land titles to furnish to the registers and receivers of the several land offices, a list of all the claims in the several land districts which had been reserved by the acts of March 3, 1811, above referred to, with a view to prevent the sale of them. Upon being furnished with the lists, the lots reserved were designated by pen-*749oil marks on the plats of surveys used in selling the lands. As offices were afterwards created, the plats thus marked were furnished to the newly created offices. The act of 26th May, 1824, by which the Salt River Land District was created, and which, it seems, was formed from the St. Louis Land District, directed that the lands theretofore offered for public sale at St. Louis, should be subject to private entry, and be sold by the officers of the land office thereby created.

The land in dispute was entered by Hunter on tire llth July, 1831, after the reservation imposed by the act of 1811 had ceased to exist. Watson, under whom the defendant claimed, settled on the land in 1823 or ’4, and continued to reside upon it, until the autumn of 183ñ, when he sold to Allison, the defendant. During the existence of the act of 28th May, 1830, which conferred-a right of pre-emption on the settlers of the public lands, Watson applied both to enter the land-in dispute, and prove his right of pre-emption thereto, but he was not permitted so to do. Hunter, the plaintiff, applied to the register to enter the same land and was refused leave; and afterwards, in the absence of the register, caused it be entered with the receiver, with whom blank applications signed by the register had been left.

Evidence was also offered conducing to show that the entry made by Hunter had been cancelled by the commissioner of the general land office.

Let it be borne in mind that this is not a controversy involving the legal title to land. It is a contest between an entry and a pre-emption right. It is an attempt by one individual to turn another out of his possession, when the legal title is in neither of them. It cannot be denied that when a patent issues, the law presumes that all the pre-requis-ites necessary to its emanation have been complied with, and if there is authority in the officer to issue it, irregularities in his conduct cannot be enquired into but in a direct proceeding on the part of the government to vacate it. But when a patent is absolutely void, for whatever cause, it will be regarded and treated as a nullity in all proceedings. Nor can it be gainsaid that when a patent has been issued for lands subject to sale, all enquiry into the fact whether the land convened by it has been regularly proclaimed for sale, is precluded in any collateral action. It must likewise be admitted, that when a receiver gives a receipt for the purchase money of a tract of public land, that receipt is prima facie evidence ; the presumption is that the law has been complied with, and if nothing can be shown against its validity, it will prevail. If the officer has authority <o ssue it in the particular case, any irregularity in his con him hie’’ rn<v affect the interest of the government, cannot be *750taken advantage of by a third person. But while we sajr this, we do not maintain that a settler on the public lands can be expelled without authority of law. It is not sufficient that he who would turn another out of his home, should only produce a written formula. A certificate of entry, which has a mere physical existence, is no more than a blank page of the Alcoran, unless it is warranted by law. . Unless the officer has authorty to give it, it may be shown to be a nullity whenever it is set.up to affect the rights of any one. A receiver’s receipt does not stand upon the same footing with a patent. A patent confers a perfect legal title. When a party is in under it, no higher title can emanate from the government to disturb him. A receipt is an authority to demand a patent; it is strictly scrutinized, and if not warranted by law, it is disregarded, and riot suffered to be made the foundation of a legal title. If a certificate is cancelled by the commissioner of the general land office, liis judgment is not conclusive on this court in a contest between titles like those now before us; but when we find his act warranted by law, why endeavor to thwart it ? Why put one into possession of land at the expense of another, when it is apparent that no title will ever be conferred on him, and when we can see that it is right it should be so? 5 Black. 55.

It is of importance that some control should be retained by our courts over the conduct of the land officers. It would be unwise to proclaim from this tribunal that they may act as they please towards the settlers on the public lands, and that courts will give full scope and effect to their lawless designs. Such a principle would encourage them to oppression. The consciousness that their acts could not be made bare, and their motives exposed in a court of justice, might incline them to listen to the entreaties of a speculator, who would expel a poor man from his home, and rob him of the sweat of his brow. It is useless to say that such conduct would meet with its deserts from the federal government. That government is too remote, and approached with too much difficulty by the great mass of those who would suffer by the misconduct cf the land officers, to be looked to for protection; and moreover, the settlers having been expelled from their possessions, would deem it preferable to go and seek other homes, than to be spending their scanty means in litigation.

Can the validity of this certificate comport with the existence of the pre-emption right of Watson? for, as evidence was offered to prove that Watson, at the time of Hunter’s entry, was entitled to a pre-emption under the act of 29th May, 18B0, it must be assumed for the purposes of this argument that such was the fact. Then, according to the *751settled construction of tHat law by the officers of the general government, and the courts of the western country, that entry was invalid ; Mosier vs. Smith, 5 Black. 55; Isaacs vs. Steele, 3 Scam. 101. But it is said that the pre-emption right, not having been proved up before the expiration of the law, and a certificate thereof obtained, no right can now be asserted under its provisions. Let it be remembered that an offer was made to prove the pre-emption in time, but the claimant was not allowed to do so, because the land was reserved. Now if Hunter could enter, it is clear that Watson was entitled to a pre-emption. Even if the land was not subject to private entry, yet Watson held a preemption on it, when it was ascertained that it was not a private claim. Hunter has entered the land, and his title can only be supported by the assertion of a state of facts which show that, at the time of his entry, Watson was entitled to the land. If Watson was prevented during the existence of the law, from proving his pre-emption, his inability to do so, could have no effect in giving validity to an act which could not legally be performed. The injustice of the officers, in refusing him permission to prove his right, cannot give efficacy to the void entry of Hunter. Watson never abandoned his right; he did all he could to perfect it, but was prevented by those who afterwards illegally permitted Hunter’s entry. It may be said that a pre-emption right can only be evidenced by the certificate of the register and receiver, and there being no such evidence here, its existence 4s not legally shown. Our statute gives a right to maintain an action i f ejectment on a pre-emption right. Of course, then, a pre-emption right will defend an ejectment against one not having a better right. It is well settled that the pre-emption act of 29th May,¡1830, gave a right of pre-emption to lands subject to private entry, and that act continued in force one year, during the whole of which pre-emptors might prove their claims.

.If a pre-emption alone, without any other evidence than the facts necessary to confer it, could not be set up as a defence against a certificate of entry, the benefits of the law would be entirely lost to those who settled on the lands subject to private sale; and a statute that was designed to give the poor, whose means had been exhausted in coming to the country, a little indulgence to enable them to pay for their homes, would be rendered a dead letter. If the entry ean prevail over a preemption, unless shown to exist by a certificate of the register and receiver, then every pre-emptor would be compelled to prove his claim immediately in order to defend himself, or otherwise lose it; and thus a construction is put upon the law which takes away every advantage proffered by it. The idea of a statute being a title papery is not novel *752in our jurisprudence. Many persons in this State hold their lands by act of Congress alone. The claimants under the act of 13th June, 1812, required to prove their titles to their lots, rest on the statute, and show the existence of those facts which are necessary to bring them within its provisions. So of those claiming under the act of confirmation of the 29th April, 1816. If the pre-emptor is prevented by the officers of government, or other causes beyond his control, from proving his claim during the existence of the act by which it is conferred, and clearly manifests a determination not to abandon by declaring a private sale, made under such circumstances, void, we do justice between the parties and conform our course to that which will be pursued by those in whose hand is the final disposition of the public lands. What measure of justice or policy can be subserved in lending our assistance to this plaintiff, whose title paper has been cancelled by the government, and who is assured he never will receive a title against one who is in possession, and whose claims are more meritorious?

Judge McBmbe concurring, the judgment is reversed.Napton, J.,

dissenting.

Hunter brought an action of ejectment against Allison in the circuit court of Pike county. Upon the trial, Hunter produced in evidence a receipt from the receiver of the land office at Palmyra, for the purchase money of the land in controversy, and proved the defendant Hunter in possession of the land.

The defendant then offered evidence, both oral and documentary, to prove:

1. That the land was reserved from sale.

2. That at the time of the.plaintiff’s entry, the land in controversy had never been offered at public sale, and consequently was not liable to private entry.

3. That the land in controversy was within the limits of the claim of Antoine Dubreuil, confirmed by act of Congress of 4th July, 1836, and that defendant derived title from Dubreuil.

4. That one Elihu Watson had a pre-emption right on the land, under the act of 29th May, 1830, and that said right had been conveyed by deed to said defendant; and

5. That said entry was fraudulent and illegal.

This proof was all rejected by the circuit court, but from the documents, and testimony of witnesses preserved by the bill of exceptions, the facts appear to have been as follows:

*753On the 11th of July, 1831, Hunter, the plaintiff, entered the east half of the S. E. qr. of S- 8, town. 58, R. 1. The register of the land office was absent at the time, but had left blank applications, wito his si nature to them, in charge of the receiver, so as to enable the business of the office to be transacted in his absence. The register was a witness on the trial, and testified that Hunter, or his agent, had applied to him to enter the land, but that he had informed him it could not be entered, because of a private claim indicated on the maps in his office by feint pencil marks. The register states that, had he been present, he v/ould not have permitted the entry; but he had gone to St. Louis on business, and was absent some ten days.

Elihu Watson had settled on this land in 1823. In December, 1830, he applied to the land officers for permission to prove up his pre-emption, under the act of May 29, 1830, hut was refused, beeause of its being within the claim of Dubreuil, and consequently not subject to pre-emption. In September, 1832, the commissioner of the general land office, directed the register and receiver to take the proof of Watson’s pre-emption, nunc pro tunc, and it was accordingly done, but not left on the files of the office. Watson, in 1835, sold his pre-emption right to the defendant AIJison, and subsequently left the State. There was no proof offered of any title to Watson, either by certificate or patent, emanating from the United States.

On the 4th July, 1836, the claim of Antoine Dubreuil was confirmed by act of Congress. The 2d section of that act provided, “that if it shall be found that any tract or tracts confirmed as aforesaid, or any part thereof, had previously been located by any other person or persons under any law of the United States, or had been surveyed and sold by the United States, this act shall confer no title in opposition to the rights acquired by such location or purchase.”

The defendant also claimed to have a derived title from Dubreuil.

It did not appear from the proof actually offered on the trial, whether this claim of Dubreuil was one of those which had been duly filed with the recorder, so as to be within the reservation of the act of Congress of 1811. But I assume that it was so filed, from the fact that the claim was acted on by the first board of commissioners.

There are three principal points arising in this case, all of which have been fully discussed at the bar,, and each of which I propose to notice very briefly, to-wit:

First. The claim of Dubreuil,

Second. The pre-emption right of Watson, and

Third. The title of Hunter b\¡ his entry of Hth July, 1831.

*7541. On the 18th January, 1834, the commissioner of the general land office communicated to Congress the reports of the boards of commissioners, made under the act of 9th July, 1832, and the act of 2d March, 1833, and the action of Congress on these reports resulted in the act of July 4, 1836, confirming most of the claims, in favor of which the commissioners had reported.

In the report of the board, made on the 27th Nov., 1833,(Ex. Doc. 24th Cong.,vol. 3, doc. 50,) the following statement and suggestions are made by the commissioners:

“Upon the subject of conflicting claims, we have been unable to ascertain to what extent they exist, &c., &c. We are of opinion, however, that they exist to a considerable degree. There are numerous cases of lands lying within these French and Spanish claims, belonging to individuals whose right or claim originated under the government of the United States; some depend upon purchases; some upon the law allowing pre-emption ; some others upon New Madrid locations; and some again upon settlement rights which have been confirmed. Most of these persons have been for a long time settled on their lands. Their claims being of a bona fide character, derived from the government of the United States ; they went on to improve their lands, making for themselves and families comfortable homes, without any belief that they ever would be interrupted in their possessions. Should the claims reported by the board be confirmed by Congress, in whole or in part, Congress will, in their wisdom, no doubt, notice the suggestion here made, and carve out such a course as will quiet the uneasiness and anxiety which are felt, by doing everything which even the most scrupulous demands of justice could require.”

It was, doubtless, in conformity to these suggestions that the second section of the act of July 4, 1836, was framed, by which the rights of those who had located or purchased the confirmed claims, or any part thereof, by virtue of any law of the United States, were left unaffected by the act.

In the ease of Stoddard vs. Chambers, 2 Howard 284, the Supreme Court of the United States, have held New Madrid locations not to be within the protection of the second section, unless located or patented during the interval in 1830 and ’31, when the reservation by the act of 1811, did not operate. This opinion was based upon the principle that New Madrid locations placed upon lands reserved by act of Congress, were mere nullities — not voidable, but absolutely void. This court in the case of Sarpy vs. Papin, gave a different construction to that portion of the second section which relates to sales, relying on the be*755lief that the act was not designed to give any title, in opposition to actual bo?ia fide sales by the government, or its officers, whether those sales were authorized by law or not. When we consider the fact that these Spanish claims had been repeatedly rejected by the various boards of commissioners and public officers to whom they had been re-feared by the government from 1805 up to 1882, as utterly destitute of any merit; that they had been barred from time to time by various acts of Congress until revived by the act of 1824, and afterwards by the acts of 1832 and 1833; that the action of the officers of government in relation to these claims, had been exceedingly contradictory and inconsistent; at times allowing locations and sales; at other times refusing them, according to the caprice of the officer, or of the department to which he belonged; and that in point of fact, hundreds of sales and locations had been made within the limits of these claims, the purchase money of which was in the coffers of the government; and that these innocent purchasers, unsuspicious of danger, and lulled into security by the action of the government, had settled on the lands so purchased, i-.. (,ood faith, and made extensive and valuable improvements. When wé look at these facts, notorious here, and communicated by the commissioners to Congress, is it unreasonable to suppose that Congress, in passing the second section of the act of 1836, designed something more than a mere mockery of protection ? It the sales and locations were made in accordance with law, the purchasers needed no protection. Congress could not deprive them of title. What motive could have operated on Congress to protect those purchasers who happened to make their entries, or get their patents, between the 26th May, 1830, and the 9th July, 1832, and leave those who had located or purchased from 1818 up to 1836, unprotected ? There was no particular merit in the entries and locations made at this interval, except that it so happened, probably without the knowledge of the officers or purchasers, that the reservation of the act of 1811, was at this period inoperative.

The decision of the Supreme Court of the Ui.bed States in terms extends only to New Madrid locations ; whcthei the same doctrine will be applied to entries at the land offices, does not appear. The entry of Hunter was made on the 11th July, 1831. At this time the land was not reserved from sale, and therefore the rule in Stoddard vs. Chambers, protects this entry from any title acquired by virtue of the act of 4th July, 1836. So far, then, as the Dubreuil claim is concerned, I see no ground of objection to its exclusion by the circuit court.

2. The pre-emption right of Watson, it it had been proved and allowed in time, I should consider a sufficient title for the defence of this *756action. It may be further admitted that if the officers had permitted the proof of this pre-emption to have been taken subsequently to the expiration of the act of 1830, and the pre-emption right had assumed a tangible shape, either by entry or patent, it would have avoided the entry of blunter. But an entry of land subject to pre-emption, is not void; it is merely voidable. The pre-emptor may never claim his preemption, and in that event the title of the purchaser has never been questioned. This was the uniform construction given by the land department to the pre-emption law of 1830. The government has not allowed Watson’s pre-emption; it has not permitted him to enter the land or given him any evidence of title. It does not appear that his rights ever will be recognized; they have, in fact, been forfeited by reason of the sale to Allison.

In an action of ejectment, such a title resting on an abandoned and forfeited equity, constitutes no solid foundation upon which to base a defence.

8. The defendant offered to show the illegality of Hunter’s entry, first, by proving that the land had never been offered at public sale, and therefore was not subject to private entry; and second, by showing fraud.

Whether the register and receiver at Palmyra, ever complied with their duty in offering this land at public sale, before they permitted it to be purchased by private entries, is, in my opinion, a matter of no consequence whatever. It is a regulation of the department, and, unquestionably, a very wise and salutary one, conducing to the interest of the purchasers, as well as of the proprietor, that reserved lands when brought into market shall first be offered at public sale, before private entries are permitted. But even if this were a regulation by act of congress, and not resting on the mere usage of the agents of government, it would be only directory, and the validity of a sale would not be questioned, though made in contravention of the regulation. It would'produce a fearful instabilify in the land titles of this State, if the customary evidences of such title, the certilicate of entry or the patent,, could be successfully defeated, by showing that the agents of government who superintend these sales, have neglected to perform all the duties which the law prescribes. Had it been contemplated that a compliance with this regulation should be considered as an essential prerequisite to the emanation of a valid title, it is remarkable that congress has not provided any means by which the fact can be ascertained. There isnothingin the records of the register’s office, nothing in the records of the department at Washington, by which the fact can be as*757certained whether this land had ever been put up at public sale or not. Indeed we have on the record a voluminous correspondence between the heads of department and subordinate officers, from which an unsuccessful inquiry seems to have been instituted to ascertain this fact. It does appear, however, from a statement filed in the surveyor general’s office, that entries upon this land, which is said to have been reserved and never offered for sale, were in fact made during nearly every year from the year 1818 up to the year 1844, amounting in all to fifty-eight entries. Twenty of these entries have been patented. Jfine. of them were made in the year 1831, one of which was on the 4th July of that year, and another on the 1st day of August, and a third and fourth on the 24th and 29th June. In short, entries were made in the months of April, May, June, July, August and December, 1831, and the entries made in the months of April and June are marked patented. Yet it is said that this land never was offered for sale, and the register, who was a witness in the case, is unable to give any satisfactory information on this subject, but says that had he been at the office on the 11th July, 1831, Hunter should not have been permitted to make his entry. Entries were permitted on the 24th, 25th and 29th June, and the 4th July and 1st August, 1831. The register might have refused to-permit Hunter’s entry on the ground of Watson’s pre-emption, and very properly; but I see no reason for the refusal arising from the reservation of the land, or the failure to make public advertisement, which would not apply to all the other entries which appear to have been permitted during that year.

The defendant also offered to prove that Hunter’s entry was fraudulent. That fraud vitiates the most solemn contracts, has become a maxim of the law; but it is difficult to conceive of any fraud which could affect the character of this transaction. If the sale was legal, it matters not how fraudulent may have been the motives or conduct of either the officers or purchaser. The fraud attempted to be proved in this case, was that Hunter took advantage of the register’s absence, who had previously rejected his application, to make the entry. If the rights of any one else had been affected by this transaction, the person prejudiced might complain, but the pre-emptor, Watson, it seems, had met with the same fate as Hunter, and never succeeded in getting any title. His interests,.if he has any now, are not in a shape to be available in his action.

The judment of the circuit court was, in my opinion, correct.

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