Thurston v. Alva

By the Court: The demurrer to the complaint praying a specific performance of a contract to convey land would appear to have been sustained on the ground that the vendor, at the time of making the contract, holding only a certificate of párchase from the United States, the contract of sale was void under section twelve of the Preemption Act of 1841. The section referred to is in the following words: “And be it further enacted, that prior to any entries being made, under and by virtue of the provisions of this Act, proof of the settlement and improvement thereby required shall be made to the satisfaction of the Register and Receiver of the land district in which such lands may lie, agreeably to such rules as shall be prescribed by the Secretary of the Treasury, who shall each be entitled to receive fifty cents from each applicant for their services to be rendered as aforesaid; and all assignments and transfers of the right hereby secured, prior to the issuing of the patent, shall be null and void.” We think that the words employed in the Act do not amount to a prohibition of the right to transfer an interest in land for which the vendor has already paid and received a certificate of purchase. 1 This is the view maintained in the Supreme Court of Minnesota (2 Minn. 155), and in that of Illinois (54 Ill. 54); and in the case of Myers v. Croft, 13 Wallace, 291, it was held that after entry a preemptor is not prohibited by the Act from making a transfer of the land entered by him. Judgment reversed and cause remanded, with directions to overrule the demurrer to the complaint.