O'Brien v. Perry

Scott, Judge, delivered the opinion of the court. We regard this case as falling within the reasoning of that of Perry v. O’Hanlon, 11 Mo. 585. Indeed it is a part of the same transaction. The merits of the controversy are all on the side of the appellees. It is in vain that we seek in the record any reason why, after the claimant under whom the appellees hold had been permitted to prove up his preemption and enter the land in suit, as he had a right to do, the officers of the government should have taken it from him and granted it to the appellant on the same terms on which it had been previously conveyed. The United States, it is clear, derived no advantage from the transaction, nor would their interests have been affected by suffering the first entry to remain. Relying on the reasoning in the case to which reference has been made, we will only notice some of the objections which have been urged by the appellant against the correctness of the judgment of the court below. We premise that the validity of the original claim under which the appellees derive title, and the question whether that claim would or would not have been confirmed, are not involved in this controversy, for it may be conceded that it would not have been confirmed without affecting the judgment to be given. The question is, whether it was a claim [511] within the meaning of the first section of the act of Congress of March 2,1833, which was supplemental to the act for the final adjudgment of land claims in Missouri, approved July 9th, 1832. If it was a claim under that act, then, as it was relinquished by the claimant in pursuance to the provisions of the third section of the last named act, it ceased to be subject to the disposition of the officers of the general government, and the land stood reserved for the benefit of him who made the relinquishment; and it is needless to inquire at this day whether the claim was a good one, for, as Congress could give away the land, it could dispose of it on terms. That this was a claim within the meaning of the first section of the act of March 2, 1833, is evident from its face compared with the words of the law. By this act, the commissioners, appointed under the act of July 5th, 1832, were authorized to consider, decide and report upon every claim to a donation of land in the state of Missouri held by virtue of settlement and cultivation. Now the claim was for land in pursuance to inhabitation and cultivation made thereon conformably to the laws of the United States, and was dated on the 3d of October, 180T. Whether the claim embraced the land in controversy was a question to be determined by the board of commissioners; and, as the claimant, in pursuance to law, waived an investigation of that question and all others, and submitted to pay for a preemption and did pay for it, his right thereto could not afterwards be annulled by any act of the officers of the government. This was a compromise between him and the government; and, after he had made a relinquishment of his right and paid the purchase money in pursuance to law, the act could not be revoked. Let it be borne in inind that the officers of the government, in annulling the entry, did not base the right to do so on the ground that it had not been made within the time prescribed by law, but because the claimant was not an actual settler. The officers of the United States had admitted that the preemption had been proved up within the time contemplated by law. [512] From this view of the subject, it is manifest that there can be nothing in the objections that the claim was not within the first section of the act of July 9th, 1832; that it was un-surveyed ; that it had been forfeited; was subject to entry and sale, and might have been sold like any other public land. Even if these objections could affect the claim, on what ground can the appellant avail himself of them, as he did not enter the land until after it had been entered and paid for by the claimant ? We do not feel the weight of the objection, that a portion of the claim was confirmed under the act of 26th May, 1824, by the recorder of land titles. If a portion of a tract of land is confirmed by the terms of a general law — for instance, a village lot, under the act of 13th June, 1812, being a portion of a larger tract, the whole of which is claimed, we will suppose, under the second section of the act of March 3, 1807, respecting claims to land in the territories of Orleans and Louisiana — what is there to prevent a party from prosecuting the remainder of his claim ? If Congress will confirm a portion of a claim by one law, and afterwards confirms the rest of it by another law, why should not a party be allowed the benefit of both laws ? It has never been considered that a claimant, by availing himself of a confirmation of a part of his tract under one law, thereby made an abandonment of the rest of it, so that he could not claim the benefit of a future law confirming it. In this connection, how unreasonable was it that the officers of the government should hold that, because the portion of the tract on which the claimant was settled was confirmed by one law, therefore he was no actual settler on the portion that was not confirmed; thus making two tracts out of one, because they were confirmed by different acts of Congress ! But, as to the objection that the claimant was not an actual settler on the land, it is clear that the instructions contained in the second volume of the work entitled “ Public Lands,” printed in 1838, by the senate, (pages 749, 750,) show that a claimant, who relinquished his claim, was entitled to a preemption under the act of [513] July 9,1832, although he was not an actual settler. This is the correct interpretation of the act, independently of any instructions, as is obvious from its language. We do not regard this case as falling within the influence of the principle, that where a patent for land is issued by the officers of the United States, the presumption is that it is valid and passes the legal title. This is well settled law; but the very case on which reliance is placed to support it (Winter v. Crommelin, 18 How. 87) gives the qualification of the rule, and maintains that this presumption may be rebutted by showing that the land is not subject to entry and grant. This case is clearly,within the qualification of the principle, and presents the question — if one has a claim, and the law proposes to him, that, if he will relinquish it, he shall be entitled to a preemption on the land claimed, and he accept the proposition, and afterwards the preemption is allowed and the land entered — whether the entry can be cancelled. In such case, would not the bare relinquishment of the claim place the land beyond the control of the officers of the government so long as the claimant was ready and willing to comply with the terms of the compromise ? It has been before observed, that it was not considered material whether the claim had been reserved or not from sale by any act of Congress, as we deemed it sufficient if it was a claim at the date of the act of March 2,1833. But in making this concession we did not intend to admit that the claim was of so little merit that it had never received so much consideration from the government as to be reserved from sale. The act of Congress of March 3, 1811, section 10, reserved all tracts of land the claim to which had been duly presented to the recorder of land titles; and the act of February 17,1818, establishing additional land offices in the teri'itory of Missouri, continued this reservation. In pursuance to instructions framed under this act by the secretary of the treasury, the claim in this case was marked as reserved from sale on the books of the register and receiver at Jackson, in this state. Affirmed; Judge Napton concurring. Judge Bichardson gave no opinion.