Kellom v. Easley

DILLON, Circuit Judge. If Willingham and Easley have no lien on the land which they are seeking to subject to their debt against Johnson, or if Johnson has no interest in this land, in either event their bill to foreclose cannot be maintained. 'The first inquiry is: Have Willingham and Easley any lien on the land in question? The basis of their claim to a lien is the deed from Johnson to Test. Johnson, it will be recollected. pre-empted the land under the act of congress of September 4, 1S41, and after he had entered it, and before his entry was canceled by the department, he made the deed to Test. This deed is absolute in form, and contains covenants of warranty. It was, in fact, a mortgage, having been made to secure money borrowed by Johnson of Willingham and Easley. No patent was ever issued to Johnson under his pre-emption and entry. Subsequently, the land in question was sold by the United States to Kellom at the time and under the circumstances appearing in the statement of the case. It is claimed by Kellom and those whose interests are adverse to Willingham and Easley, that the latter have no lien, because the deed from Johnson. which is relied on to create such lien, is absolutely void. This objection is based upon and involves a construction of section 12 of the aforementioned act of September 4. 1841. which provides that “all assignments and transfers of the right hereby secured, prior to the issuing of the patent, shall be null and void.” Does this intend to prohibit the pre-emp-tioner from all alienations of the property [262] which he has acquired under the pre-emption act, prior to the issuing of the patent? Or does it intend simply to prevent the transfer of the right to pre-empt? That it means the former, was, by Mr. Justice Miller, expressed to be his opinion in the case of Beers v. Kel-lom [unreported], decided in this court, and arising out of the transactions now in controversy. This view seems to be the one best sustained by the terms of the statute, which, when plain, should be regarded and followed by the courts, and not frittered away by subtle and nice refinements. Until payment made for the land and certificate of purchase procured, the pre-emp-tioner has nothing which he could assign or transfer. If, after certificate of purchase is obtained, there was intended to be no restriction on the disposition of the land by the pre-emption purchaser, why did the act use the words, ‘‘prior to the issuing of the patent?” If such restriction was intended, how natural the use of the words last quoted. The other view is that the “right secured” is the right to pre-empt, that is. to purchase the land on certain terms and conditions preferably to others, and this right is fully secured when the purchase is made of the United States. The right thus preferably to purchase it is admitted cannot be transferred, and it is this alone (it is argued) which is prohibited. If so, why did the statute use the words, “prior to the issuing of the patent,” instead of “prior to the issuing of the certificate?” Again, this view best accords with the obvious purpose and policy of the pre-emption privilege. The object of the government was in part to induce settlements upon the public lands, but chiefly to confer the preferable right to purchase upon those persons, usually in indigent circumstances, who actually settled or improved them. It was not to aid the speculator in lands. Marks v. Dickson, 20 How. [61 U. S.) 501, 505. It is plain that pre-emptions merely for. purposes of speculation will be less likely to be made if the pre-emptor is obliged, before alienating, to wait for the patent to issue. Again, there was a similar provision in the prior act of May 29. 1S30 (4 Stat. 420, § S). The language of the two acts, in this respect, is almost literally the same. By the act of January 23, 1S32 (4 Stat. 496). the prohibition as to assignments and transfers of the right of pre-emption, contained in the act of 1830. is removed, and it is provided that “all persons who have purchased lands under the act of May 29, 1830. may assign and transfer their certificates of purchase, or final receipts, and patents may issue in the name of such assignee, anything in the act aforesaid to the contrary notwithstanding.” This shows that the language in question was understood by congress as restricting aliena-tions by the pre-emptor after payment and before patent issued. The effect of allowing such transfers was seen to be such that congress, in passing the carefully-framed act of September 4, 1841, renewed the prohibition against transfers, which was contained in the act of 1830. The government had witnessed the practical operation of the two opposite policies, and the judgment of congress, as embodied in the later act, as to which is the better policy, should be respected by the courts, and the language of the statute should be allowed its natural and fair meaning. Our attention has been called to no decision of tne supreme court of the United States upon the point under consideration, and it is presumed it has never been determined by that tribunal. Thredgill v. Pintard, 12. How. [53 U. S.] 24, and Marshall v. Bush, 6 How. [47 U. S.] 284, are referred to by counsel, but the question now before us is one which, it is evident, was not ruled by the court in either of those cases. The question has, however, been frequently before the state courts, and they have with great uniformity held that the pre-emptioner had no transferable right prior to the issuing of the patent. Arbour v. Nettles, 12 La. Ann. 217; Poirrier v. White, 2 La. Ann. 934; Penn v. Ott, 12 La. Ann. 233; Stanbrough v. Wilson. 13 La. Ann. 494; Stevens v. Hays, 1 Ind. 247: McElyea v. Hayter, 2 Port. (Ala.) 148; Cundiff v. Orms, 7 Port. (Ala.) 58; Glenn v. Thistle. 23 Miss. 42. 49; Wilkerson v. Mayfield. 27 Miss. 542; McTyler v. McDowell, 36 Ala. 39; Paulding v. Grimsley, 10 Mo. 210; Contra, Randall v. Edert, 7 Minn. 450 [Gil. 359]. If this is the true view of the statute, the deed from Johnson to Test was null and void, and neither by reason of the grant it purported to make, or the covenants it contained, can it operate as an estoppel; and any subsequent interest acquired by Johnson would not inure to the benefit of the grantee named in the deed. Stevens v. Hays and McElyea v. Hayter, ubi supra, are express authorities on this point. To hold otherwise would enable parties easily to evade the statute, and defeat its policy and purpose; would contravene its plain language, and involve the legal absurdity of making an instrument declared by the law to be null and void, operate as effectually as if it was not under the ban of the stat-utor.v prohibition. But it is not necessary in this ease to deny that the title which a pre-emptioner gets by virtue of his patent will inure to the benefit of a grantee to whom he conveyed prior to the issue of the patent although the foregoing argument may go to that length. In the case at bar the pre-emptioner’s entry was cancelled and he never obtained any patent, and we feel quite clear in holding, as we do, that under these circumstances the conveyance by way of mortgage made by Johnson, when a pre-emptioner. will not attach to an interest subsequently acquired by an independent purchase. [263] What would have been the rights of the grautee of the pre-emptioner had his entry never been cancelled, and had he subsequently received a patent, we have no occasion now to inquire, and give no opinion upon that question. But it is insisted that if the prohibition is applicable to the deed from Johnson to Test, it cannot avail the parties filing the bill of review, because they have not therein complained of this error in such a way as to apprise the defendants of their claim in this respect. Story, Eq. PI. § 420; Id. § G36; 3 Daniell, Oh. Prac. 1729. The bill of review states the former bill, answer, and replication, and the proceedings thereon, and the decree.entered therein. By the pleadings in the original cause it distinctly appears that Johnson’s entry was made under the preemption act, and that the complainants therein claimed under the deed from Johnson to Test, and that the respondents set up as a defense its invalidity because made in violation of the provisions of the act of congress of September 4, 1S41. The court affirmed the validity of the deed, and held that it operated by estoppel upon the interest which Johnson subsequently acquired, and subjected that interest to sale. The bill of review alleges that the decree of July, 1867, “is erroneous, and ought to be reviewed, reversed, and set aside, for that, it appears by the said decree, this court declared (1) that under the pleadings in this cause the said deed of conveyance from said Harrison Johnson to said James D. Test in the said bill and decree' mentioned was a security for and operated as a mortgage of the premises therein mentioned; (2) that said Johnson had such a title and interest in and to said lands in said bill and decree mentioned, as to give him a valid right to convey the same, and vest a valid right and interest in and to the said lands in his vendee; (3) that the alleged agreement in the said bill and decree mentioned was in law valid and effectual, and subject to be enforced in law as between the parties.” When these allegations are examined in connection with the language of the pleadings and decree it is seen that they are reasonably specific as to the ground on which it is sought to impeach the decree. This disposes of the case, and the result is that the prayer of the bill of review must be granted. It may be added that a careful examination of the evidence has satisfied the court that the writing produced is a true copy of the .original agreement, and being so, Johnson has no interest in the lands, except what he would be entitled to. if any, by reason of the rejection of the claim of Smith; and it may also be added that we are inclined to the opinion that Smith’s claim was improperly rejected. Let a decree be drawn up in conformity with this opinion, reversing and setting aside the former decree. Decree accordingly.