This action of ejectment is here on a writ of error to the Supreme Court of Ohio, under the 25th section of the Judiciary Act. The plaintiffs in error claim title to a quarter section of land under an entry made with the Register of the Land-Office; the defendants claim the same as reserved for school purposes. As both parties claim under an act of Congress, either, is entitled to a writ of error to have the judgment against the right asserted, revised in this court.
By the act of the 20th of May, 1826, Congress gave school lands to such townships and fractional townships in the land districts of the United States as had not been provided for, to be selected within such townships by the Secretary of the Treasury, out of any unappropriated public lands within the land district in which the township was situated. Under that act, fractional township No. 1, range No. 19, of the Chillicothe land district of Ohio, was entitled to 160 acres of land.
On the 24th of the same month the Treasury Department issued a circular, through the General Land-Office, to the Registers of the different land districts, directing them to make selections of the lands granted and return a list to the General Land-Office, for the approbation of the Secretary of the Treasury.
The Register of the Chillicothe land district caused to be selected the south-east quarter of section No. 15, township 2, range 18, the land now in controversy. A return of this selection was made to the General Land-Office the 23d October, 1828. This return contained other tracts not made as required by the law, and consequently the list was returned to the Register for correction. The errors being corrected the list was again returned to the General Land-Office. But afterwards, in 1832, a circular from the Land-Office was directed to the Register, accompanied by a printed form and directions so that the returns of lands selected should be uniform. The tracts selected were required to be noted and reserved from sale. Where good land could not be procured in the township, the selection was authorized to be made in the nearest adjacent township which contained good land. The land above selected is not in township No. 1, range No. 19, nor in the next adjacent township; but in the nearest adjacent township in which good land could be procured.
In pursuance of the above instruction, the Register withheld the land from sale. On the 7th March, 1833, he informed the Commissioner that 'some of the selections which he had reported were half quarter secti ons, and that others did not lie 'either in the township or in the nearest adjacent township where good land exists,' 'which are not in accordance with the general rules laid down in the Commissioner's last circular;' and he says, 'I have withheld from sale all the lands selected which were embraced in my two reports,' and he inquires whether the fact of his having reported them takes them out of the general rule prescribed for his government; and whether he should consider all the selections heretofore made, and have them made in exact conformity to the instructions.'
In answer to the above the Commissioner says, 'on the subject of the school lands, selected by you in 1831, I have to state that, as there has been no action of the department on these selections, you are at liberty to withdraw them and select other lands in their stead, in conformity to my circular of the 30th August, 1832.'
Under this letter, it seems, the Register permitted Hamilton to enter the land in controversy; but no other school land was selected in lieu of it. On this entry being made the school trustees of the township appealed to the Secretary of the Treasury, against the sale of the land, and claimed the original selection. And the same being laid before the Secretary, he sanctioned and confirmed the original selection. This was done the 9th January, 1834.
The decision of this case must depend upon the validity of Hamilton's entry. He had full notice that the quarter section had been selected for school purposes, and was reserved from sale. This information was given him by the Register on his first application to enter it. He then endeavored to purchase it from the trustees. The selection of that tract was made, at first, as the law required, though other tracts on the same list had not been so selected.