Poirrier v. White

The judgment of the court was pronounced by Kino, J. In July, 1S34, the plaintiff sold to Robinsonhis right of pre-emption to a tract of-land, stated in the-act of sale to have arisen under the statute of 1839. Robinson sold the land, with an adjoining tract acquired-from Prevost, to the defendant White, who gave his three .promissory notes .for the price, and the land remained specially mortgaged in favor of the vendor to secure their payment. Two of those notes were transferred to Lambeth & Thompson, by Robinson, with a subrogation to all the rights of mortgage of the latter on the -land hypothecated. In 1840, Poirrier purchased from-the United States the quarter section of land, the right of pre-emption to which he had previously sold to Robinson, proving up his claim under .the act of 1832. He has now instituted .this action for the recovery of the land in question, alleging that his sale to Robinson, was in violation of an express prohibition of the law of Congress, and for that reason void. He .also claims rents.and profits. White, the defendant, .called his vendor, Robinson, in warranty, and prayed that, in the event of evic [935] tion, he be allowed compensation for his improvements. Lambeth, 8f Thompson, the holders of two of the mortgage notes, have intervened in the suit, and pray that the title of White be maintained, but that, in the event of an eviction of the defendant, the plaintiff be decreed to pay them the price which he received from Robinson for the land. There was a judgment rendered in favor of the defendant in the court below, quieting him--in his title, from which the plaintiff has appealed. The act of Congress'of May 29-, 1830, granting pre-emption rights to settlers on public lands provides thait “ all assignments and transfers of the'right of preemption given by this act, prior to the issuance of patents, shall be null <iud> void.” The act of 1832, supplementary to the act of 1830, authorised persons who had purchased under the act of 1830, to “assign and transfer their certificates of purchase or final receipts,” and patents to issue in the name of the assignees. The act of the 19th June, 1834, revived the act of 1830, and continued it in force for two-years. United States Statutes at large, vol. 4, pp. 420, 496, 698. It is contended that the act of 1832 authorised the assignment of pre-emption' rights, such as were transferred by the plaintiff; that the act of 1834, reviving, that of 1830, revived with it the supplementary act of 1832; and that the sale from the plaintiff, having been made subsequently to the passage of the act of’ 1834, was not forbidden by law. It is not necessary to determine whether the effect of the act of 1834 was to revive the act of 1832, as well as the act of 1830. The act of 1832- only permitted purchasers to assign their certificates of purchase or- final receipts. The prohibition from selling.the mere pre-emption right was-not repealed nor affected by the act of 1832, but remained in full vigor. That, prohibition is express, and the absolute nullity is declared of any sale or assignment-made in violation of it. The entry made by plaintiff in 1840, vested in-him the title to the land, and authorises a recovery. The warrantor not having been cited, and having made no appearance in the cause, no judgment can be rendered against him and in favor of his vendee. Lambeth Thompson, the intervenors, claim, in virtue of their'subrogation to the rights of Robinson, that, in the event of. eviction, the plaintiff pay them the price which he received from Robinson. These parties were only subro-gated by Robinson to all his rights and actions in regard to the notes transferred to them. There was no subrogation, or transfer to them of Robinson’s recourse in warranty against his vendor, and Robinson makes no claim in this suit against his vendor. Justice between the parties requires that the plaintiff should be compelled to reimburse the price which he received from Robinson; and we regret that the state of the pleadings does not authorise us to render such a judgment. The rents of the land have been proved to be worth §196, and the improvements made by the defendant to be worth §160. For the difference, which is-§36, the plaintiff is entitled to a judgment. It is therefore ordered that the judgment of the District Court be reversed. It is further ordered that the the plaintiff recover of the defendant the tract of land designated' as the north-west quarter of section one, of township number sixteen, of range qumber thirteen, containg 112 16-100 acres; and further that he recover of the dofendant the sum of §36. It is further ordered that the defendant pay the costs of both courts.