Hudson v. Milner

ORMOND, J. The act of Congress of 22d June, 1838, “ to grant pre-emption rights to settlers on the public lands,” which merely continued in force other previous acts, having .the same object in view, contains the following clause : “Before any person claiming the benefit of this law shall have a patent for the land, which he may claim by having complied with its provisions, he shall make oath before some person .authorized by law to administer the same, which oath, with the certificate of the person administering it, shall be filed with the register of the proper land office, where the land is applied for, and by the said register sent to the office of the commissioner of public lands, that he entered upon the land he claims in his own right, and exclusively for his own use and benefit, and that he has not directly, or indirectly, made any agreement, or contract, in any way, or manner, with any person or persons whatever, by which the title which he might acquire from the government of the United States, should enure to the use or benefit of any one except himself, or to convey, or transfer the said lands, or the title which he may acquire to the same, to any other person or persons, at any subsequent time ; and if such person, claiming the benefit of this law as aforesaid, shall swear falsely in the premises, he shall be subject to all the pains and penalties of perjury, forfeit the money which he may have paid for the land, and all right and title to the said land, and any grant or con [670] veyance, whieh he may have made, in pursuance of such agreement, or contract, as aforesaid, shall be void, except in the hands of a purchaser in good faith, for a valuable consideration, without notice.”. [5 Stat. at large, 251.] It is impossible to mistake the meaning and intent of this law. It forbids the sale of a pre-emption right, until after the patent has issued; and before one can be obtained, in virtue of a pre-emption right, an affidavit was required, the design of which was to prevent the consummation of any contract for the sale of the land previously, declaring not only the contract void, but the title itself a nullity, except in the hands of a bona fide purchaser without notice. These parties were joint occupants of the .same quarter section of land, and by the provisions of the pre-emptio.n law, were entitled each to a patent for eighty acres, on the payment of the government price ; and by this contract, Milner agreed, that if he did not pay Hudson a debt of $100, which he owed him, when the latter was ready to enter his portion of the land, that then he would permit Hudson to enter the whole quarter section, and would not assert his right to one half of it — Hudson paying the value, to be ascertained by a reference to the neighbors. This is evidently a contract for the sale of the pre-emption. The mode the parties adopted to carry it into effect, is wholly unimportant. As a contract by Milner to enter the land in his own name, and then convey it to Hudson, would have been void, the same effect must attach upon this contract, by which the same thing was to be accomplished, by his omitting to assert his right to enter the land. The design of the act of Congress was, to secure as far as possible, a permanent home to the settler, and not to confer this boon upon him for the purpose of speculation. But be the policy of the law what it may, its language is clear, and explicit, and it is our imperative duty to enforce it. The contract here relied on for a recovery, being in direct violation of a statute, cannot be enforced. This renders it unnecessary to consider the other questions raised upon the record, and argued in this court. Let the judgment be reversed, and the cause remanded.