Randall v. Edert

By the Court -Elasidkau, J. -This action was commenced [453] to quiet the title of the Plaintiff to lands in Scott-county. The complaint alleges possession in the Plaintiff, and an adverse claim made by Defendants. The answer puts in issue the allegation of possession, and alleges a- purchase by one of the Defendants from the United States, of the land in question, prior to the first day of August,' 1861, and the issuance of a patent therefor on said-first day of August, and that the Defendant, Elizabeth Edert, to whom the patent was issued^ is still the owner of the land in fee simple absolute. The reply alleges that on or about the 25th day of July, 1855, the United States owned the land, at which time the United States sold and conveyed the same to one Samuel-Hammond, and then alleges a series of conveyances through different parties, terminating in the Plaintiff. . The Plaintiff on the trial proved his possession, and rested. The Defendant introduced the patent from the United States to Elizabeth Edert, and rested. The Plaintiff, to rebut the effect of the patent, introduced an authenticated' copy of a receipt given by the Receiver of the land office at Red Wing, on the 28th day of July, 1855, to Samuel Hammond, for the purchase money of the land in question. This was in the ordinary form of a pre-emption certificate of purchase. Accompanying the receipt was the certificate of the Commissioner of the General Land Office, authenticating the same as' a true and literal exemplification of the original on file in his office, and containing the following clause: “ I do further certify that the entry of the south half of the south-west quarter of section 18, town 115, north of range 22 west, by Samuel Hammond, described in said receipt, was" cancelled by this office on the 10th of August, a. d. 1858, for the reason that it conflicted with the approved pre-emption claim of Jasper Gelhage, and that the purchase money paid by Samuel Hammond for said tract of land was refunded by treasury draft, on his application therefor, March 14th, 1859.” It was then admitted by the parties that “ the facts in regard to the cancellation of said receipt, and the application for, and return to, and receipt by said Samuel Hammond, off [454] the purchase money, are, as in the said certificate to said copy of said receipts attached.” Upon this state of the proof, judgment was rendered for the Defendants, and the Plaintiff brings error. By our act of Congress passed July 4th, 1836, entitled “An Act to reorganize the General Land Office,” it is provided “ that from and after the passage of this act, the executive duties now prescribed, or which may hereafter be prescribed by law, appertaining to the surveying and sale of the public lands of the United States, or in any wise respecting such public lands, and also such as relate to private claims of land, and the issuing of patents for all grants of land under the authority of the Government of the United States, shall be subject to the supervision and control of the Commissioner of the General Land Office, under the direction of the President of the United States.” Sec. 1, Lester’s Land Laws, 46. In section 11 of the preemption act of September 4, 1841, (Lester’s Land Laws, 62,) will be found the following provision : “ and all questions as to the right of preemption arising between different settlers shall be settled by the Register and Receiver of the District within which the land is situated, subject to an appeal to and revision by the Secretary of the Treasury of the United States.” In the ejection of the Department of the Interior, the duties formerly performed by the Secretary of the Treasury, were transferred to the Secretary of the Interior. Act of Mar oh 3, 1849, Lester’s Land Laws, p. 151, sec. 3. By section 12.of the act of September 4,1841, the duties of the registers and receivers of the Land Offices are to be performed in regard to pre-emptions, “agreeably to such rules as shall be prescribed by the Secretary of the Treasury,” (Interior). Every one who purchases land from the United States by pre-emption or private entry, does so, subject to the rules and regulations that govern the Land Department. All entries are made subject to the “supervision and control of the Commissioner of the General Land Office,” and all contests aré decided by the local officers subject to appeal. An entry may be satisfactory to the register and receiver, and when returned to and supervised by the Commissioner, be found defective in [455] some material points which will either suspend the issuance oí the patent, or cancel the entry entirely. And every decision of the local officers upon contested entries may be reversed by the upper office upon appeal. All parties who purchase from a pre-emptor prior to the consummation of the entry, take subject to the power of the upper office to confirm or cancel the same that existed in relation to the original purchaser. In this case all that appears is, that Hammond in July, 1855, pre-empted the land in dispute and sold the same to Mary Oressey, and that after several transfers the land was purchased by the Plaintiff on the seventh day of August, 1861, which was after the cancellation of the pre-emption entry. That Hammond’s entry was cancelled by the General Land Office in August, 1858, as conflicting with the approved pre-emption claim of Jasper Gelhage, and that in August, 1861, a patent was issued by the United States for the same land to one of the Defendants. The only inference that can be drawn from these facts is, that Hammond’s entry was not in accordance with law, and that Gelhage had prior' and paramount rights with which it conflicted, and that notwithstanding the entry was allowed by the local officers, it did not meet the approval of the upper office which was essential to its validity. Every intendment must be made in favor of the officers having done their duty when nothing appears to the contrary. We are bound to presume that the case went regularly from the local office to the upper, by return, or appeal, and was there regularly acted upon. The Plaintiff’ cites our decision in the case of Camp vs. Smith, 2 Minn. R., 155, to show that the title passed out of the United States at the time of the entry by Hammond, and that the Department had no farther control over it. The counsel has mistaken the nature of that decision. In. that case the pre-emptor conveyed the land between the time of the entry and the issuing of the patent, but the entry was never disturbed, and was subsequently ratified and the patent issued to the pre-emptor. The question simply was, whether the deed made before the issuance of the patent was valid to pass the interest that the pre-emptor had gained by virtue of [456] bis entry; we held that it was. Had the entry not received the confirmation of the upper office, the title would have failed, and the grantee been left to his covenants for redress. When however it was confirmed, the title passed to the pre-emptor’s grantee by operation of the covenant of warranty in the deed. The essential difference between the case cited, and the one at bar is, that in the former the pre-emptor had conformed to the law and acquired rights under his entry, which passed to his grantee, and in the latter he had failed to acquire any rights, and consequently had none to transmit. The j udgment must be affirmed.