Tenison v. Martin

CHILTON, J. In ex parte Ryan, 9 Ala. R. 90, it is said, the act of 1807, (Clay’s Dig. 321, § 60,) which directs the — 27 — courts in which any cause is depending, “at any time to permit either of the parties to amend any defect in the process, or pleadings, upon such conditions as the said courts, respectively, shall in their discretion, and by their rules, prescribe,” being a beneficial enactment and promotive of the remedy, should be liberally expounded, and that the authority thus generally conferred is not to be limited to cases where there is something by which to amend apparent on the record. It is not permitted that the plaintiff should declare for a cause of action entirely variant from that indorsed on the writ. In such case, the court on motion would reject the declaration. Wharton v. Franks, 9 Por. Rep. 232; Sexton v. Rone, 7 Ala. Rep. 829. But to justify this, the departure must be total, and amount to a radical variance. If there be any variance in the case at bar between the indorsement and counts, it is of such character as might be amended, but we think, each count is sufficiently indicated by the indorsement, and that the court very properly overruled the motion to reject them. 2. The demurrers to the declaration and the proof, involve the same inquiry, to wit, whether, under the allegations and proof, the action of the plaintiff below can be sustained. By the act of congress of the 29th May, 1830, granting pre-emption rights to settlers on the public lands, it is provided “ that all assignments and transfers of the right of pre-emption given by this act, prior to the issuance of patents, shall be null and void.” See U. S. Stat. at Large, vol. 4, p. 421, $ 3. By an act passed the 23d January, 1832, supplementary to the above, it was provided that persons who had purchased under the act of 1830 might assign and transfer their certificates of purchase or final receipts, and that patents might issue to the person to whom the same might be transferred. The act of May, 1830, which seems to be the basis of the general legislation of congress upon the subject of preemptions, was revived, without material alteration, by the subsequent acts of 14th July, 1832, and 19th June, 1834, but by the act of 22d June, 1838, a new regulation is introduced, by which the person making the entry, or claiming the benefit of the act, before he was entitled to a patent, after complying with the provisions of the act, was required to make — 28 — an oath before some person authorized 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, when the land is applied for, and by him sent to the office of the commissioner of public lands, “that he entered upon the land which he claims in his own right, and exclusively for his own use and benefit, and that he has not directly or indirectly made any contract or agreement in any way or manner, with any person or persons whatever, by which the title which he might acquire from the United States, should inure to the use or benefit of any one except himself, or to convey or transfer the title to said land which he might acquire to any other person or persons whatever, at any subsequent time.” It is further provided, “ that if such person, claimiug the benefit of this law as aforesaid, shall swear falsely, he shall be subject to all the pains and penalties for perjury, forfeit the money which he may have paid for the land, and any grant or conveyance which 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. See Stat. at Large, 5 vol. 251. The subsequent act, passed June 1, 1840, continues in force the act of 1836, “ with the same exceptions, whether general or special, and subject to all the limitations and conditions, contained in said act, and subject also to some explanatory provisions declared in the act of 1840. Ib. 382. The act under which the plaintiff in error entered the land, passed September 4, 1841, (Stat. at Large, vol. 5, 456, § 12 and 13) declares “all assignments and transfers of the right thereby secured before the issuance of the patent null and void,” and prescribes an oath, containing, with additional provisions, the substance of the affidavit required by the act of 1838. I have been thus particular in referring to all the enactments bearing upon this case, in order to ascertain whether the contract, disclosed by the proof and stated in the declaration, can be sustained. That contract simplified, amounts to this: the defendant in error, having as a bounty from the government, a right to enter a tract of land worth $1,000, at the price of $200, in consideration of a stipulated compensation, agrees to waive that right in favor — 29 — of another, and agrees further to become a witness to prove his vendee’s right to enter, thereby estopping himself from afterwards claiming the land. The objects of the national legislature in the enactment of pre-emption laws, doubtless were to compensate the pioneer for his privations attendant upon his early settlement in a new country, in tendering him a permanent home at an under value, by which means also the country becomes settled, and the sale of the public lands is facilitated. It is further evident by the whole scope of legislation upon this subject, that congress designed, as far as possible, to discourage speculation in this description of titles. Persons are not allowed to avail themselves twice of the benefit of the act. They must not own 320 acres of land in any state or territory of the United States, nor shall they be entitled to this right if their settlement and improvement were made, that they might sell the land on speculation. See act of 4th Sept. 1841, Stat. at Large, vol. 5, 456. These considerations are persuasive to show the design of the acts, and as indicating the objects to be accomplished by the restrictions imposed upon transfers. If the plaintiff in error had purchased the right which the defendant claimed under his improvement and occupancy, under an agreement that the latter should make the entry in his own name, but for the use and benefit of plaintiff, it would not be contended for a moment that such contract could be upheld. It would come within the very letter of the inhibition contained in the oath required. Shall he be permitted to do indirectly, what the law prohibits him from doing directly ? He may avail himself of the munificence of the government in procuring him a home, but he is not allowed to speculate on its bounty. Were such true, he might enter as often as he improved and settled a place. He might not make the entry in his own name, but which is equivalent, he shares all the profits of an entry which, as a matter of form, another makes instead of himself. The case of the Ex’rs of Hudson v. Milner, decided by this court at the last term, is so analagous in principle to this case, that I must confess I can perceive no material difference. In that case, Milner having obtained $100 from Hudson, agreed if he did not refund it by the time the land office was opened for entries, or Hud — 30 — son should desire to make his entry upon a quarter section upon which both he and Milner were entitled to pre-emption, then Milner was not to assert his claim, and Hudson was to pay him whatever sum over and above the $100 which the neighbors should say was just. Hudson made the entry, and Milner sought to recover what had been adjudged by their neighbors to be a just compensation. The court say, “ this is evidently a contract for the sale of the pre-emption. The mode the parties adopted to carry it into execution, is wholly unimportant.” It is insisted by defendant’s counsel that it is the practice of the government, and which has been recognized by this court in McElyea v. Hayter, 2 Porter’s R. 148, to regard the transfers of certificates of pre-emption entries as obligatory. This has been permitted by virtue of the act of 23d January, 1832, authorizing assignments of entries made under the act of 1830, and the revival of the latter act was construed as reviving the enabling act of 23d January, 1832. But no case has been found, and we apprehend none exists, where assignments or sales of pre-emption rights before the entry was made in the land office,.has been upheld. In the case of McElyea v. Hayter, the court held, that an authority to make title when the patent should issue to lands entered under the pre-emption act of 1830, was void, as it was a circuitous mode of evading the act of Congress. James v. Scott, 9 Ala. Rep. 579, relied upon by the counsel for the defendant in error, is unlike the present case. That was a lease during the life of the reservee of his reservation under the treaty of Fort Jackson. By the terms of the treaty, a sale of the land worked a forfeiture of it to the government, but the court, waiving the question as to whether the reservee might well make the lease, held, that as the lessee had taken and held the undisturbed possession of the land, he could not treat the contract as a nullity by which he acquired it. In the transaction, no principle of public policy was contravened; besides, it was not an action to enforce a contract forbidden by law. We think therefore that the contract set up by the plaintiff, as the same is shown to exist by the proof, cannot be supported. This is doubtless a hard case upon the defendant in error, but it is our duty to declare the law, and not to compromit its settled provisions — 31 — by adapting our decisions to the exigencies of particular cases. What we have said is decisive of the case, and it is unnecessary to examine the other points argued at the bar. Let the judgment be reversed and the cause remanded.