Allison v. Hunter

Scott, J., delivered the opinion of the court. Hunter sued Allison in an action of ejectment, in which he obtained judgment. The title of‘Hunter was a certificate of the United States Receiver. Allison claimed under Watson, and offered to prove, amongst other things, that the entry was fraudulent and void for the want of authority in the officer to issue, for the reason that the land, at the time of the entry, was subject to the pre-emption claim of Watson; and that the land was not subject to private entry at the date of the certificate, because it had never been offered at public sale, proclaimed by the President of the United States. All this evidence was rejected, and its rejection is the ground on -which a reversal of the judgment is sought. The tract of land in controversy, it seems, is a portion of a large Spanish concession made to Antoine Dubreuil, which was reversed from sale by the 10th section of (he act of Congress of the 3rd of March, 1811, providing for the final adjustment of claims to lands in the territories of Orleans and Louisiana, notice of the claim having been previously filed with the recorder of land titles, in pursuance of the laws of the United States. The reservation of Dubreuil’s claim continued until the expiration of the act of 26th May, 1824, enabling claimants to institute proceedings to try the validity of their claims, and the several acts amendatory thereto, which occurred on the 26th of May, 1830. It appears that the secretary of the treausury on the 10th of June, 1818, caused the recorder of land titles to furnish to the registers and receivers of the several land offices, a list of all the claims in the several land districts which had been reserved by the acts of March 3, 1811, above referred to, with a view to prevent the sale of them. Upon being furnished with the lists, the lots reserved were designated by pen749 oil marks on the plats of surveys used in selling the lands. As offices were afterwards created, the plats thus marked were furnished to the newly created offices. The act of 26th May, 1824, by which the Salt River Land District was created, and which, it seems, was formed from the St. Louis Land District, directed that the lands theretofore offered for public sale at St. Louis, should be subject to private entry, and be sold by the officers of the land office thereby created. The land in dispute was entered by Hunter on tire llth July, 1831, after the reservation imposed by the act of 1811 had ceased to exist. Watson, under whom the defendant claimed, settled on the land in 1823 or ’4, and continued to reside upon it, until the autumn of 183ñ, when he sold to Allison, the defendant. During the existence of the act of 28th May, 1830, which conferred-a right of pre-emption on the settlers of the public lands, Watson applied both to enter the land-in dispute, and prove his right of pre-emption thereto, but he was not permitted so to do. Hunter, the plaintiff, applied to the register to enter the same land and was refused leave; and afterwards, in the absence of the register, caused it be entered with the receiver, with whom blank applications signed by the register had been left. Evidence was also offered conducing to show that the entry made by Hunter had been cancelled by the commissioner of the general land office. Let it be borne in mind that this is not a controversy involving the legal title to land. It is a contest between an entry and a pre-emption right. It is an attempt by one individual to turn another out of his possession, when the legal title is in neither of them. It cannot be denied that when a patent issues, the law presumes that all the pre-requis-ites necessary to its emanation have been complied with, and if there is authority in the officer to issue it, irregularities in his conduct cannot be enquired into but in a direct proceeding on the part of the government to vacate it. But when a patent is absolutely void, for whatever cause, it will be regarded and treated as a nullity in all proceedings. Nor can it be gainsaid that when a patent has been issued for lands subject to sale, all enquiry into the fact whether the land convened by it has been regularly proclaimed for sale, is precluded in any collateral action. It must likewise be admitted, that when a receiver gives a receipt for the purchase money of a tract of public land, that receipt is prima facie evidence ; the presumption is that the law has been complied with, and if nothing can be shown against its validity, it will prevail. If the officer has authority <o ssue it in the particular case, any irregularity in his con him hie’’ rn<v affect the interest of the government, cannot be [750] taken advantage of by a third person. But while we sajr this, we do not maintain that a settler on the public lands can be expelled without authority of law. It is not sufficient that he who would turn another out of his home, should only produce a written formula. A certificate of entry, which has a mere physical existence, is no more than a blank page of the Alcoran, unless it is warranted by law. . Unless the officer has authorty to give it, it may be shown to be a nullity whenever it is set.up to affect the rights of any one. A receiver’s receipt does not stand upon the same footing with a patent. A patent confers a perfect legal title. When a party is in under it, no higher title can emanate from the government to disturb him. A receipt is an authority to demand a patent; it is strictly scrutinized, and if not warranted by law, it is disregarded, and riot suffered to be made the foundation of a legal title. If a certificate is cancelled by the commissioner of the general land office, liis judgment is not conclusive on this court in a contest between titles like those now before us; but when we find his act warranted by law, why endeavor to thwart it ? Why put one into possession of land at the expense of another, when it is apparent that no title will ever be conferred on him, and when we can see that it is right it should be so? 5 Black. 55. It is of importance that some control should be retained by our courts over the conduct of the land officers. It would be unwise to proclaim from this tribunal that they may act as they please towards the settlers on the public lands, and that courts will give full scope and effect to their lawless designs. Such a principle would encourage them to oppression. The consciousness that their acts could not be made bare, and their motives exposed in a court of justice, might incline them to listen to the entreaties of a speculator, who would expel a poor man from his home, and rob him of the sweat of his brow. It is useless to say that such conduct would meet with its deserts from the federal government. That government is too remote, and approached with too much difficulty by the great mass of those who would suffer by the misconduct cf the land officers, to be looked to for protection; and moreover, the settlers having been expelled from their possessions, would deem it preferable to go and seek other homes, than to be spending their scanty means in litigation. Can the validity of this certificate comport with the existence of the pre-emption right of Watson? for, as evidence was offered to prove that Watson, at the time of Hunter’s entry, was entitled to a pre-emption under the act of 29th May, 18B0, it must be assumed for the purposes of this argument that such was the fact. Then, according to the [751] settled construction of tHat law by the officers of the general government, and the courts of the western country, that entry was invalid ; Mosier vs. Smith, 5 Black. 55; Isaacs vs. Steele, 3 Scam. 101. But it is said that the pre-emption right, not having been proved up before the expiration of the law, and a certificate thereof obtained, no right can now be asserted under its provisions. Let it be remembered that an offer was made to prove the pre-emption in time, but the claimant was not allowed to do so, because the land was reserved. Now if Hunter could enter, it is clear that Watson was entitled to a pre-emption. Even if the land was not subject to private entry, yet Watson held a preemption on it, when it was ascertained that it was not a private claim. Hunter has entered the land, and his title can only be supported by the assertion of a state of facts which show that, at the time of his entry, Watson was entitled to the land. If Watson was prevented during the existence of the law, from proving his pre-emption, his inability to do so, could have no effect in giving validity to an act which could not legally be performed. The injustice of the officers, in refusing him permission to prove his right, cannot give efficacy to the void entry of Hunter. Watson never abandoned his right; he did all he could to perfect it, but was prevented by those who afterwards illegally permitted Hunter’s entry. It may be said that a pre-emption right can only be evidenced by the certificate of the register and receiver, and there being no such evidence here, its existence 4s not legally shown. Our statute gives a right to maintain an action i f ejectment on a pre-emption right. Of course, then, a pre-emption right will defend an ejectment against one not having a better right. It is well settled that the pre-emption act of 29th May,¡1830, gave a right of pre-emption to lands subject to private entry, and that act continued in force one year, during the whole of which pre-emptors might prove their claims. .If a pre-emption alone, without any other evidence than the facts necessary to confer it, could not be set up as a defence against a certificate of entry, the benefits of the law would be entirely lost to those who settled on the lands subject to private sale; and a statute that was designed to give the poor, whose means had been exhausted in coming to the country, a little indulgence to enable them to pay for their homes, would be rendered a dead letter. If the entry ean prevail over a preemption, unless shown to exist by a certificate of the register and receiver, then every pre-emptor would be compelled to prove his claim immediately in order to defend himself, or otherwise lose it; and thus a construction is put upon the law which takes away every advantage proffered by it. The idea of a statute being a title papery is not novel [752] in our jurisprudence. Many persons in this State hold their lands by act of Congress alone. The claimants under the act of 13th June, 1812, required to prove their titles to their lots, rest on the statute, and show the existence of those facts which are necessary to bring them within its provisions. So of those claiming under the act of confirmation of the 29th April, 1816. If the pre-emptor is prevented by the officers of government, or other causes beyond his control, from proving his claim during the existence of the act by which it is conferred, and clearly manifests a determination not to abandon by declaring a private sale, made under such circumstances, void, we do justice between the parties and conform our course to that which will be pursued by those in whose hand is the final disposition of the public lands. What measure of justice or policy can be subserved in lending our assistance to this plaintiff, whose title paper has been cancelled by the government, and who is assured he never will receive a title against one who is in possession, and whose claims are more meritorious? Judge McBmbe concurring, the judgment is reversed.