Clements v. Warner. were completed in 1852, and during that year the President of the United States by a proclamation directed the sale of those sections and parts of sections along the line of the road that had remained to the United States, after the satisfaction of the grant to Illinois. Such of the sections as were not sold became subject to private entry. The section of land described in the plaintiff's bill, a portion of which forms the subject of this suit, was one of these, and was purchased at private sale at the land office, in November, 1855, by a person under whom the plaintiff derives his claim, and who has the usual receipt given by the receiver of the land office. The conflicting claim against which the appellee seeks relief originates in an entry by the appellant in November, 1856, as having a pre-emption right under a settlement began in October, 1855, before the date of the entry on which the title of the appellee is founded. A patent issued to the appel lant as having the superior claim. The object of the bill is to reverse the decision of the officers of the land office, and to obtain a relinquishment of the legal title evinced by this patent, and the only question presented is, whether the land was the subject of a pre-emption right in November, 1855. The 10th section of the act of the 4th September, 1841, confers upon the beneficiaries of that act, "who shall make a settlement in person on the public lands to which the Indian title has been extinguished, and which shall have been surveyed prior thereto, and who shall improve and inhabit the same, as specified in the act, a right of pre-emption to one quarter section of land." Among the exceptions in the act to the exercise of this right of pre-emption, is one that includes "sections of lands reserved to the United States, alternate to other sections granted to any of the States for the construction of any canal, railroad, or other public improvement." 5 Statutes at Large, 466. Subsequent acts of Congress extend the pre-emption privilege to lands not surveyed at the time of the settlement, and confer privileges upon settlers on school lands, and on lands reserved for private claims. 5 Statutes at Large, 620, sections 3, 9, Clements v. Warner. In 1853, the pre-emption laws, as they now exist, were extended to the reserved sections of public lands along the lines of all the railroads, wherever public lands have been granted by acts of Congress, in cases where the settlement and improvements had been made prior to the final allotment of the alternate sections to such railroads by the General Land Office. 10 Statutes at Large, 244. In the administration of these laws, the Executive Department of the Government has decided, that after the restoration to market of the lands embraced in the exception we have quoted from the act of 1841, and when they have become subject to entry at private sale, they lose their character as reserved lands, and will then be subject to the privileges of pre-emption in favor of settlers. The policy of the Federal Government in favor of settlers upon public lands has been liberal. It recognises their superior equity to become the purchasers of a limited extent of land, comprehending their improvements, over that of any other person. By the act of 1841, the pre-emption privilege in favor of actual settlers was extended over all the public lands of the United States that were fitted for agricultural purposes and prepared for market. Later statutes enlarged the privilege, so as to embrace lands not subject to sale or entry, and clearly evince that the actual settler is the most favored of the entire class of purchasers. No act of Congress has defined the meaning of the term reserve, as applied to lands in these various acts, nor determined explicitly when these alternate sections lose their character as reserves. But all other public lands fitted for agricultural purposes, after they have been offered at public sale, are affected by the privilege of the actual settler to have the preference of entry. No reason of public policy exists to exclude this class of public lands from the operation of the same law, under the same conditions. No violence is done to the language of the act by limiting the exception to the temporary withdrawal of the lands from the market, and the liberal policy of Congress in favor of the actual settler is better accomplished by a restrictive rather than extensive in Lessee of Smith et al. v. McCann. terpretation of the exceptional clause in the act. We therefore sanction the construction adopted in the land office. The Circuit Court overruled the demurrer of the defendant to the bill, and made a decree in conformity to the prayer of the bill. This is error. The decree of the Circuit Court is reversed, and the cause is remanded to the Circuit Court, with directions to dismiss the bill, with costs. LESSEE OF ROBERT W. SMITH AND CAREY W. BUTT, PLAINTIFFS IN ERROR, V. WILLIAM MCCANN. In Maryland, the distinction between common law and equity, as known to the English law, has been constantly preserved in its system of jurisprudence. The statute of George the Second which made lands in the American colonies liable to be sold under a fieri facias issued upon a judgment in a court of common law, did not interfere with this distinction, and under it a legal estate only and not an equitable interest could be seized under a fi. fa. In 1810, an act of Assembly was passed making equitable interests subject to this process. But the purchaser at the sale of an equitable interest under this process only buys the interest which the debtor had, and thus becomes the owner of an equitable and not a legal estate. It is not, however, every legal interest that is made liable to sale on a fi. fa. The debtor must have a beneficial interest in the property, and not a barren legal title held in trust. In the action of ejectment, in Maryland, the lessor of the plaintiff must show a legal title in himself to the land which he claims, and the right of possession under it, at the time of the demise laid in the declaration and at the time of the trial. He cannot support the action upon an equitable title, however clear and indisputable it may be, but must seek his remedy in chancery. Where there was a deed of land to a debtor in trust which conveyed to him a naked legal title, he took under it no interest that could be seized and sold by the marshal upon a fi. fa.; and the purchaser at such sale could not maintain an action of ejectment under the marshal's deed. But the plaintiff in the ejectment suit offered evidence to prove that the trusts in the deed were fraudulent, and that the debtor purchased the land and procured the deed in this form in order to hinder and defraud his creditors. And this proof was offered to show that the debtor had a beneficial interest in the property, liable to be seized and sold for the payment of his debts. Lessee of Smith et al. v. McCann. This parol evidence could not be introduced to enlarge or change the legal estate of the grantee against the plain words of the instrument. If the evidence were admissible, the fraudulent character of the trusts, as against his creditors, could not enlarge his legal interest beyond the terms of the deed. Although the debtor may have paid the purchase money, that circumstance did not establish a resulting trust in his favor. The lessors of the plaintiff had a plain and ample remedy in chancery, where all the parties interested could be brought before the court. The instruction of the court below was therefore correct, that the plaintiff could not recover in the action of ejectment. THIS case was brought up by writ of error from the Circuit Court of the United States for the district of Maryland. The facts are stated in the opinion of the court. It was argued by Mr. Davis and Mr. F. L. Smith for the plaintiffs in error, and Mr. Campbell and Mr. Malcolm for the defendants. The points on behalf of the plaintiffs in error were the following. The counsel contended that the instruction given by the court below was erroneous, and cited these authorities: McMechen v. Marman, 8 G. and J., 57, 73, 74, 75. Jackson v. Scott, 18 Johnson's R., 94. Jackson ex dem. Cary v. Parker, 9 Cowen R., 85. Remington v. Linthicum, 14 Peters, 84. Young v. Alger, 3 Watts, 223, 227. Jackson v. Bush, 10 John., 223. In ejectment against a defendant in an execution, or those claiming under him, the purchaser of land at a sheriff's sale, having complied with the terms of sale, is entitled, as plaintiff, to recover the possession against said defendant or his alience, and the defendant will not be permitted to controvert the title by showing it to be defective, or by setting up a better outstanding title in a third person. Remington v. Linthicum. Lessee of Smith et al. v. McCann. McMechen v. Marman. Lessee of Cooper v. Galbraith, 3 Wash. Cir. Ct. R., 546, 550. Jackson v. Chase, 2 John. C. L. R., 82. Jackson v. Pierce, Id., 221. Jackson v. Deye, 3 John. C. L. R., 422. Bayard v. Colfax et al., Cox's Digest S. C. U. S., 272, sec. 41. Jackson v. Davis, 18 John. C. L. R., 7. Jackson v. Van Slyck, 8 John. C. L. R., 486. The trusts in the deed from Brown and wife to Richard D. Fenby being fraudulent and void, the deed passed au absolute title to Fenby of the land in controversy. Bacon's Abr., vol. 2, Bouvier's Ed., 298, 305. Hughes v. Edwards, 9 Wheat., 493. That the terms of trust, in the deed from Brown and wife to Fenby, not being established by any evidence, aliunde, the said trust can be considered as existing, if at all, only from the date of the deed. Hill on Trustees, top pp. 86, 87, note 2. The counsel for the defendant in error made the following points: 1. This action of ejectment being brought in Maryland, and the common law in that State being unchanged, the plaintiff must show, in evidence, a legal title to enable him to recover. The Maryland statute, (1810, ch. 160,) which authorizes a sale on execution at law, of equitable estates, does not change an equitable into a legal title, and the purchaser must assert his rights in their appropriate form. Carroll v. Norwood, 5 II. and J., 155. Wilson v. Inloes, 11 Gill and Johnson, 351. Hammond v. Inloes, 4 Maryland, 138. 2. To show themselves seized of a legal title, the plaintiffs in error give in evidence the deed from Brown and wife to Fenby, conveying the property which was levied on under the judgment against Fenby, and sold to the plaintiff's lessor. |