Widow of Henry v. Welsh

Martin, J., delivered the opinion of the court. The plaintiffs sue for a tract of land in the possession of the defendant, to which they allege they are entitled under the adjudication of the register and receiver of the land office, on their claim to a right of pre-emption under the act of congress, of April 12, 1814. The defendant resists the claim on an allegation, that neither the plaintiffs nor their ancestor, ever cultivated the premises, and so neither they or he are entitled to any claim to a right of pre-emption under the aforesaid act of congress. Further, that he, the defendant, occupied and cultivated the premises during the years 1828-9, and part of 1830, and so he acquired a right of pre-emption under the act of congress of May, 1830; that he made application to be allowed to enter and exercise his right of pre-emption to the premises, hut was not permitted to do so by the register of the land office, the plaintiffs having, in fraud of his rights, began proceedings to obtain the adjudication of the premises, and having finally succeeded in procuring it. There was a verdict and judgement for the defendant, and the plaintiffs appealed, after an unsuccessful attempt to obtain a new trial. It appears the plaintiffs did not succeed in making proof at the trial of any cultivation of the premises by their ancestor or themselves, though they did show he deadened trees, cut down underwood, and had some grubbing done on the land. Although, from the documents in the land office, it appears the register and receiver had evidence of cultivation. The defendant showed occupancy and cultivation so as to establish his right of pre-emption under the last act of Congress, if no other individual had a better claim. The act of adjudication or decision of the register and receiver, acting as land commissioners, in favor of a claimant of a preemption right to a tract of land, passes to such claimant all the right and title of the United States to the land claimed. In. a contest between two claimants under different laws for a preemption right, the decision of the register and receiver, acting as land commissioners, is final between the parties,andtheSupreme Court has no right to revise or annul it. It is clear the right of the United States by the adjudication of the officers of the land office, passed to the plaintiffs. They set up their claim to the right of pre-emption before, and had proceeded in their attempt to establish it some months before the passage of the act of Congress under which the defendant afterwards set up a claim. It is true the adjudication and payment of the price of the land was posterior to the last act of Congress. All this precludes the belief of any fraud in the plaintiff’s attempt to resist any right of the defendant. The last act of Congress may have given to the defendant the right of pre-emption; but this right gives him no title in the land, nor to the land, until he exhibits the necessary proof and procures the adjudication of the register and receiver. The decision of these officers has been adverse to his pretensions. We know not any right in us to revise or annul it, or substitute our own thereto. It is not for us to say whether he may be relieved by any proceedings in the nature of a caveat, to prevent the plaintiffs from finally obtaining a patent for the land. If we could examine the decision of the officers of the land office, we ought to have before us the evidence which the defendant produced to them. It is not pretended the record contains a tittle of it. Indeed, the decision itself is kept off. Are we to say the officers erred in not yielding to proofs promised after their decision? The plaintiffs show a title to the premises and the defendant does not exhibit any, but seeks to avail himself of that of the plaintiffs as obtained in fraud. We have already said no fraud appears; there is no privity, no contract between the parties, before us. This case is not like that of a person who having sold his right of pre-emption, attempts afterwards to avail himself of it to the injury of his vendee. As all his subsequent proceedings can be considered as fair and honest on the supposition that he acted for the benefit of his vendee, the latter may allege it, and the vendor will not be believed if he attempt to gainsay it, for he cannot do so without alleging his own turpitude. [551] It is, therefore, ordered, adjudged, and decreed, thathet judgement of the District Court be annulled, avoided, and reversed, and that the plaintiffs recover the premises from the defendant, with the costs of suit in both courts.