No. 77.-(Ops. Aty. Gen.; G. L. O. p. 124.)

A failure to pay for the original pre-emption before a public sale of the lands in which it is situate forfeits the right, and, consequently, also the right to select eighty acres elsewhere. A tender of payment in due time will save the right.

A tender for the original tract, and for the tracts selected, with a condition that the first shall not be received without the latter, is a good tender, provided all the tracts are liable to be selected; otherwise, not.

Pre-emptor may float a tract returned as a regular half-quarter section.

The two pre-emptors may float tracts that do not, in the aggregate, exceed 160 acres. Pre-emptor may select subdivisions of fractions where the land district contains no regular halfquarters; but in such cases should be confined to those containing the least excess over eighty acres.

Where the district contains regular half-quarters, the two floats cannot take fractions which, united, amount to over 160 acres.

Designating a tract before the coming in of a plat, so as to enable the proper officer to locate, is sufficient.

Error in description is not fatal if the tract be identified.

Pre-emptions under act of 1830 are not affected by surveys under act of 5th April, 1832.
An abandoned claim is no objection against a valid one which is properly pursued.

ATTORNEY GENERAL'S OFFICE, April 27, 1837.

SIR: In the case of Brown, Reynolds, and others, brought before you by appeal from the decision of the Commissioner of the General Land Office, and referred to me by your letter of the 3d instant, it appears that Messrs. Brown and Reynolds had originally an acknowledged right under the pre-emption act of May 29, 1830, to the northwest quarter of section 33, in virtue of joint cultivation and possession, and in consequence thereof, each had also a right to floats of eighty acres, elsewhere; that under an instruction from the General Land Office, rendered necessary by the absence of the plats of survey, their claims as well to the tract cultivated as to the tracts designated for the accruing floats, were registered; that it was afterwards discovered that the latter tracts exceeded each the quantity of eighty acres; for which reason the land officers refused to permit the entries; that Messrs. Brown and Reynolds refused to pay the tract cultivated unless their claims to the tracts designated as floats were recognised, and payment received for them at the same time, but offered to make payment for all; that matters stood in this condition until the tract cultivated was proclaimed for sale, and not having been purchased and paid for by Brown and Reynolds, or sold at public sale, it was subsequently sold at private sale to one Lewis; and that in the mean time the tracts claimed as floats, were also awarded, under the preemption law of 1834, to other persons; but no patents have yet issued. In this state of the case you propose to me the following questions:

"1. Messrs. Brown and Reynolds having failed to make payment on the tract occupied and cultivated, and from which their floating rights were derived before the commencement of the public sale, as required by the act of May, 1830, and the instructions of the Land Office, or to make any tender of payment prior to that period, unless upon the condition that the tracts claimed to be floated should be awarded to them

and paid at the same time: does it not follow, as a necessary consequence of such neglect and refusal, that they have forfeited their right to all ?"

"2. If a timely tender for the whole be regarded as a legal tender for a part, and it is held that their rights are in no way impaired by the failure to make payment for the land to which the 'floats' were appurtenant, is not their claim to the tracts designated as floats illegal and void, for the reasons assigned by the district land officers in their letter of the 26th October, 1836 ?"

In answer to these questions I have the honor to state the following propositions as the result of my reflections on the subject:

1. A failure to make the proof and payment required for the tract occupied and cultivated, and from which the floating rights are derived, before the day appointed for the commencement of the sales of the public. land including such tract, will, as a general rule, involve a forfeiture of all the privileges held out by the act, not only in respect to the tract occupied and cultivated, but in respect to those tracts which might otherwise have been claimed under the floating rights. This is the necessary effect of the fourth section of the act of May 29, 1830, which provides that none of the provisions of the act shall be available to any person or persons who [shall] fail to make the proof and payment required before the day appointed for the commencement of the sales of lands including the tract or tracts on which the right of pre-emption is claimed.”

2. A tender of payment made in due time, and of the requisite amount, is sufficient in ordinary cases between individuals, to save the rights of the party making the tender; and in cases of executory agreements, will entitle him, in a court of equity, to a specific performance of the contract. The same principle, in my judgment, should be applied by the General Land Office to cases arising under the land laws.

3. A tender of payment for the tract occupied and cultivated, and for certain other tracts claimed as aceruing floats, though coupled with the condition that the sum applicable to the primary tract shall not be received by the land officers unless the claimants are also allowed to purchase the tracts designated by them under their floating rights, and with a refusal to pay for the tract occupied and cultivated, unless the others can also be purchased by the parties, ought, in my opinion, to save the rights of the parties making the tender, to all the tracts referred to; provided it shall appear that the tracts designated under the floating rights were liable to be purchased under such rights, at the time when the tender was made. But I think that parties making a tender in this way, incur the duty of showing that the tracts claimed as accruing floats were really such as they had a legal right to purchase under the law, and that if it turns out that they had no right to claim such tracts, the whole tender will be vitiated. In other words, the party making a tender in this form does it at his own peril; and if it proves to be bad in part, it must, as a consequence of the character he has given it, be bad for the whole.

The above principles, when applied to the case before me, would seem to place the claim of Messrs. Brown and Reynolds to the tracts designated by them as accruing floats, on the same footing on which it stood when they made the tender of payment; and to reduce the whole

case to the question whether or not they were at that time entitled to select the tracts so designated, by virtue of their floating rights.

The district land officers think their claim to those tracts was illegal and void, for certain reasons specified in their letter to the Commissioner; to the sufficiency of which reasons you have called my attention in the second of the above questions.

1. On recurring to that letter, I find that the claims of Messrs. Reynolds and Brown to the tracts designated under their floating rights, were rejected by the land officers because the tract selected by each contained more than eighty acres; those officers being of opinion that the law on this point was imperative, and that it left with them no discretion to allow such a claim.

The Commissioner of the General Land Office, in his letter of the 7th of September, 1836, makes the following observations on this objection: "From the last survey of this township, it would appear that the tract claimed by Brown may not contain so much as eighty acres, but as the west line of lot A is not continued in the last plat, (the half-mile line, as was done in the former plat,) the contents cannot be correctly ascertained until the Surveyor General makes such subdivision.

"It has been decided by this office, that as pre-emptors frequently select tracts on which to locate their floats containing less than eighty acres, and are thus deprived of part of the number of acres to which they were entitled under the law, that in cases where a claimant selects a half quarter of a section on which to locate his float, which contained a few acres more than the eighty mentioned in the law, to permit such location to be perfected."

Where the tract selected, though it may contain a few more acres than eighty, is yet returned in the surveys as a half-quarter section, I have no doubt the pre-emptor should be allowed to purchase it. The first section of the act of May 29, 1830, provides" that the settler or occupant may enter with the register of the land office for the district in which such lands may lie, by legal subdivisions, any number of acres, not more than one hundred and sixty, or a quarter section, to include his improvements ;" and although the second section, which relates to cases of joint cultivation, merely says, that "in such case, the said settlers shall each be entitled to a pre-emption of eighty acres of land elsewhere in said land district," and makes no mention of legal subdivisions, nor of halfquarter sections, yet as the two sections are in pari materia, there can be no objection to the pre-emptor's taking, under his floating right, any tract returned as a half-quarter section, (which is a legal subdivision,) even though it may chance to contain a little over eighty acres.

I think, also, that where the tracts designated by the two joint preemptors, under their floating rights, do not together exceed one hundred and sixty acres, they ought to be allowed to purchase them, notwithstanding one of them may contain more than eighty acres-such a case being clearly within the equity of the law. And where the tract contains no regular quarter sections of eighty acres, liable to selection under floating rights, the equity of the law may also entitle the pre-emptor to select a fractional division, containing a larger quantity of acres such a course being necessary to prevent the failure of the privilege. It would seem, however, that in such cases the pre-emptor should con

form, as nearly as may be, to the provisions of the law, and should therefore be confined to fractional divisions containing the least excess over eighty acres.

Where there are regular half-quarter sections of eighty acres liable to selections, and the joint pre-emptors choose, under their floating rights, to take each a fractional division, it seems to me that they should be confined to tracts which, in the aggregate, do not exceed one hundred and sixty acres. To allow them to purchase more, without necessity, is not only repugnant to the words of the law but to its spirit and evident design.

How far the foregoing views, should they be adopted by you, may affect the presett case, I have not the requisite information to determine. 2. The district land officers object to both the claims, that there are no such tracts represented on the maps as those designated by Messrs. Brown and Reynolds in the abstract.

I do not find in their letter a sufficiently perspicuous statement of the facts to enable me to determine the effect of this objection in this case, and I must therefore confine myself to a statement of the principles which I think applicable to it.

It is sufficient, in my opinion, that the party entitled to a floating right should designate the land he claims to purchase under that right, with such certainty as to enable the proper officers to locate it.

An error in the description will not be fatal to his claim, provided the material particulars are so specified as to identify the tract.

3. Some remarks are made by the land officers in their letter concerning the effect of the new surveys made under the act of the 5th of April, 1832. I am of opinion that those surveys cannot affect this case, because the act is expressly confined to such public lands as might be offered at private sale," after the first day of May then next, and cannot by any just latitude of construction be carried back to embrace pre-emptioners under the act of 1830.

4. It is objected by the land officers to the claim of Brown, that the very tract selected by him was also claimed by one Stone, upon an allegation that he had cultivated it; and by one Garner, under a floating right; and that the names of Stone and Garner both preceded the name of Brown on the abstract prepared by the land officers, each name being followed by the designation of the tract claimed by Brown. It does not appear to me that there is any force in this objection. The land officers state that Stone's claim was abandoned in consequence of its being found that his tenements were on an adjoining tract which he elected to take; and Garner did not follow up his claim by an offer to pay in due season. I believe the material questions of law arising in this complicated case, are sufficiently met in the above remarks; and have the honor to remain, Very respectfully, your obedient servant,

The Hon. LEVI WOODBURY,

B. F. BUTLER.

Secretary of the Treasury.

No. 78.-(Ops. Aty. Gen.; G. L. O. p. 130.)

Under the Creek treaty of 1814, and act of 1817, the renting of the reservation for twenty years, and removal from the State by the reservee, is an abandonment.

The Indian has no power to lease; he must have a personal connexion with the use and enjoyment of the land.

The fact of abandonment is, like any other, to be established by proof.

On the abandonment the title becomes immediately vested in the United States by operation of law, and is, from that moment, to be treated as if then for the first time acquired by a treaty.

ATTORNEY GENERAL'S OFFICE, May 23, 1837.

SIR: In compliance with your request, I proceed to state my opinions on the questions proposed in the communication of the Commissioner of the General Land Office, bearing date the 20th of August last, and some time since referred to this office.

Inquiries having been made of the General Land Office respecting the light in which abandoned Creek reservations, originally confirmed under the first article of the treaty of the 9th of August, 1814, and the act of Congress for the execution thereof of the 3d of March, 1817, are regarded by the Government, the Commissioner proposes the following questions:

"1. What circumstances are to be considered as constituting an abandonment of a reservation; by what proof must those circumstances be established; and by whom is the decision to be made, as to the reservation having reverted to the United States in consequence of such abandonment thereof by the reservee?"

"2. If it is decided that the reservation has been thus abandoned, can the land be considered as being liable to entry by floating claims before the officers for the district have been officially apprized of such decision, and the community have been notified by them that such tracts are subject to location or sale ?"

I. The first of these questions embraces several particulars, which I will notice in their order.

(1.) The first article of the treaty of 1814 provides, "where any possession of any chief or warrior of the Creek nation, who shall have been friendly to the United States during the war, and taken an active part therein, shall be within the territory ceded by these articles to the United States, every such person shall be entitled to a reservation of land within the said territory, of one mile square, to include his improvements, as near the centre thereof as may be, which shall enure to the said chief or warrior, and his descendants, as he or they shall continue to occupy the same, who shall be protected by and subject to the laws of the United States; but upon the voluntary abandonment thereof, by such possessor, or his descendants, the right of occupancy or of possession of said lands shall devolve to the United States, and be identified with the right of property ceded hereby." The act of 1817, so far as regards the tenure. on which the reservations are to be held, is in substance the same as the treaty. The tract reserved to the friendly Indian is to be held by him and his descendants, "so long as he or they shall continue to occupy the same," and no longer.

Those circumstances and those only, by which the party ceases to occupy the reservation, should be considered as constituting an abandon