12 Ky. 27 | Ky. Ct. App. | 1822
The circuit court decreed a release of the elder grant held by Anderson, and to reverse that .decree this writ of error is prosecuted.
2. The record of a caveat is shown, and the reason why the grant issued pending the controversy, as shown by the answer of the reg'ster. who is made a party, was probably the existence of two surveys, one to which the caveat applied, and a second returned after-wards, somewhat variant from the first, on which the. grant (m mated.
The rel ief granted by the court below, cannot be sustained, on’the ground of title. There is a survey filed on a removed certificate, not made in the name of the defendant in error; but that of another person, on 'which no assignment appears. But there is proof by depositions, that the defendant in error, has purchased if.- He has not, however,, filed the certificate or exfife
3. The only remaining ground on which the relief can be based, is, the prohibition of the legislature imposed upon removed certificates, that they should uot be surveyed to cover actual settlements, as relied upon in the bill, and the-general preference given to settlers by a long course of legislation on the subject of appropriating these lands.
We have not deemed it necessary to enquire minutely into the fact, as to which was the first actual settler. The truth perhaps is, that Anderson was settled and resided adjoining the land in contest, before Gore, and lias attempted to add it to his tract by some kind of appropriation. Gore then made his settlement upon the spot, and each is attempting to secure if.
4. it is true that the first acts appropriating vacant, lands, granted them on certain acts to be performed, exclusively to the actual settler. The indulgence in payment of the state price, has been extended toshim more liberally than to others. Persons redeeming, have been postponed to settlers’ rights of a posterior date, or even to actual settlement itself. And the last general act providing for the appropriation of lands, .."(5 Lift. 266,) gave a right of pre-emption to the set-2 tier. But still it would be a great extent of implica, tion to infer, from the spirit of these provisions, a valid title in the settler, who had no claim but his bare entry. These acts of preference to that class, were acts of favor, dictated by the policy then pursued ; and there was nothingthenor now existing, which prohibited the legislature from treating all such as trespassers upon the public lands. At the date of Gore’s settlement, there was no law in force that ensured him the land for his settling it, or that secured to him the right of pre-emption. Nor are we aware of any provision which invalidates a grant obtained, as the grant of Anderson, in a contest with a person having no title, al
• 5. We would further remark, with regard to the. right of pre-emption secured to the settler by the general appropriation act of the 6th of February, 1815, it must be taken advantage of by obtaining a certificate from some court pointed out in the act, which the defendant in error has not done; and if he had done it, the preference given him would only extend to claims arising under the same act, and would not permit him, 1© enter the list with claims arising under former laws, by the express provisions of the act itself, as was decided by this court in the case of the Justices of Allen county vs. Allen, 2 Marsh 30.
The decree must therefore be reversed with costs, and the cause be remanded with directions there to dissolve the injunction, and dismiss the bill with costs.