John McKinley

“ This, too, they obtain against those who have, and never have parted with, the actual fee. A patent could give them no more. This decree, therefore, to 'quiet the defendants' possession,' is a title equivalent to a patent, against the owner who still holds the patent; for the United States, never having issued it, are as fully the holders of it as their grantees could be. Now, when has it been heard, that a register's certificate is to prevail against a patent? The acts on congress, from the begining of the government, recognise a patent as the complete evidence of title to the public domain ”

“ Nor was such a decree asked for by the defendants. The United States claimed the land; the defendants were in possession; the United States were to establish their title; if good, to get possession; if bad, to be refused it, and dismissed. What necessity was there for the court to give any other judgment? It was totally uncalled for; and if given in accordance with any peculiar practice of Louisiana, let that be shown. ”

“ Unless sustained by such local practice, the precedent is a dangerous one. In ejectment, the plaintiff relies on his own title. He is prepared only to examine and present that. If he fails to make it good, his suit is lost. If the court passing beyond this, decides upon the defendants' title, they decide a point not necessarily before them, and which the plaintiff was not warned would be presented, or prepared to meet. ”

“ II. The defendant, Fitzgerald, could not, at the time the suit was brought, establish any possessory title, under the pre-emption law of 1834. He had neither done what was necessary to entitle him to its privileges, nor had he, in fact, received from any authorized officer, any legal recognition to that effect. He was not a settler; he had made no improvement or cultivation; he had offered no proof satisfactory to the register and receiver; he had made no entry; and he had received no certificate. A settler is a person who takes possession, for the purposes of cultivation ”

“ On the 10th June 1830, and the 14th September 1830, full rules were prescribed by the commissioners of the general land-office relative to the execution of this law, directing the precautions to be taken in regard to proof of occupancy and cultivation, what was the meaning of those terms, and requiring actual payment. ”