Strong v. Rachal

Garland, J,, delivered the opinion of the court. This is an injunction to arrest the execution of an order of seizure and sale, obtained by the Rachals, to have seized and sold a tract of land which, they allege, they sold to Strong, on which a mortgage was retained. The plaintiff in this suit says, A. & I. Rachal engaged to make him a complete title to the land, which they have not done. That they have no title to it, and the interest they may have or had is such a as is not subject to mortgage, and they cannot sell it under an order of seizure. The evidence shows the land be-to *-he United States. The Rachals say they are en-titled to purchase it under the pre-emption law, passed by Congress on the 29th May, 1830, and the act supplementa’7 thereto approved July 14, 1832. The first authorized every settler or occupant of the public land, to purchase, at , . . . 1 the minimum pnce, a quantity not exceeding one quarter section, in which act is a clause, forbidding all assignments aild iratisfers of the right of pre-emption, prior to the issuing ^ 1 \ * 0 of patents, under the penalty of nullity. The Rachals have never made any effort, so far as the record states the facts, to establish their right of pre-emption, nor have they ever paid any thing for the land, or offered to do so, .but they say their 235 privilege still exists under the supplementary law, and the land is not yet surveyed or liable t.o entry. It. may be true their right to purchase still exists, but a sale of it is expressly declared to be null and void, by the same law that confers it. See section 3 of the Pre-emption Act of May 29, 1830. The act of 1832, which authorizes personswho have purchased their pre-emption rights, to transfer their certificates and receipts of the land officers,and the issuing of patents to the assignees, does not repeal that part of the act of May 29, 1830, which declares all transfers of the right of preemption null and void. So, the sale and mortgage of a pre-emption right to a quarter section of land, before a receipt and certificate is obtained from the land officers, under the act of congress of the 29th May, 1830, is null and void. The counsel for the Rachals contends, that the clause of nullity in the act of May 29, 1830, is repealed by the supplementary act, approved January 23, 1832, which authorizes all persons who have purchased under the first law, to assign and transfer their certificates and receipts from the land officers, and the issuing of patents in the name of the assignees. This act does not, in our opinion, repeal that part of the previous one, which declares all “ transfers of the right of preemption” null and void, previous to the issuance of patents, but only modifies it, and says those who have purchased, may sell and transfer the evidence of their titles, but it does not follow, that those who have not purchased, are released from the disability imposed by the same law that grants the privilege. The right of the Rachals, not being one to an immoveable that could be alienated, is not susceptible of being mortgaged : Louisiana Code, art. 3256. It, therefore, follows, that no order of seizure could issue on the act of sale from the Rachals to the plaintiff, to sell land, the title to which is yet in the United States, and only liable to be divested on conditions which are mutual, and which either party may neglect or refuse to perform. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled and reversed ; that the injunction issued in this case be made perpetual, and Athanas and Isaac Rachal pay the costs in both Courts.