This is a suit in equity, brought, according to the practice obtaining in Missouri, to settle the conflicting claims of the parties, arising from their respective patents, to a fractional section of land comprising thirty-seven acres and two-fifths of an acre, situated in that State. The plaintiffs assert title to the premises under a patent issued to William M. McPherson by the governor of the State, bearing date on the 27th of February, 1850, purporting to be for lands selected under the eighth section of the act of Congress of Sept. 4, 1841, entitled 'An act to appropriate the proceeds of the sales of the public lands, and to grant pre-emption rights' (5 Stat. 453); and the defendants claim title to the premises under a patent of the United States, bearing date on the 21st of July, 1866, issued to the heirs of Thomas Chartrand upon an alleged pre-emption right acquired by a settlement of their ancestor.
The eighth section of the act of Sept. 4, 1841, declared that there should be granted to each State specified in its first section-and among them was the State of Missouri-five hundred thousand acres of land for purposes of internal improvement, the selection of the land in the several States to be made within their respective limits, in such manner as the legislatures thereof should direct, but in parcels conformably to sectional divisions and subdivisions of the public surveys, and of not less than three hundred and twenty acres in each, from any public land except such as was or might be reserved from sale by any law of Congress or proclamation of the President. Several acts were passed by the legislature of Missouri for the selection and disposition of the land thus granted. One of them, passed on the 10th of March, 1849 (Laws of Missouri of 1849, p. 64), authorized the governor of the State to dispose, at private sale, of so much of the land as then remained to be selected, and to issue to the purchasers certificates empowering them to locate the quantity purchased, in conformity with the act of Congress. The purchasers were to inform the governor of the lands selected, and he was to notify the Secretary of the Treasury that the selections were made for the State; and, if approved by the secretary, patents were to issue to the purchasers.
Where the land selected in any instance contained less then three hundred and twenty acres, the governor was required, upon the request of the purchaser and upon payment for the full amount, to relinquish the surplus to the United States. Of the certificates thus issued, one was held by William M. McPherson; and under it a selection was made by him of the premises in controversy. Of this selection the governor of the State informed the Secretary of the Treasury on the 15th of December, 1849, and requested his approval of it; at the same time relinquishing to the United States the surplus between the amount selected and three hundred and twenty acres. At that time the supervision of the land-office had been transferred from the Secretary of the Treasury to the Secretary of the Interior, whose department was created in March of that year. The selection of McPherson was accordingly brought to the latter's attention, and was approved by him on the 17th of January following; subject, however, to any rights which may have existed at the time the selection was made known to the land-officers by the agent of the State. On the 27th of February following, a patent of the State of Missouri for the premises was issued to McPherson by the governor. Upon the title thus conferred the plaintiffs repose, and ask judgment in their favor.