35 Ala. 117 | Ala. | 1859
la this case, the plaintiff claims title under a patent issued to him by the general government, bearing date December 29th, 1855. The defendant’s title consists of a receipt by the receiver of the local land-office, bearing date October 10th, 1854, acknowledging full payment for the same lands from the said Edward M. Herron. It is thus manifest that, under the rule recognized in this court, the evidence of title offered by each party, unaffected and uncontrolled by the evidence of his adversary, is sufficient to either sustain or defeat an action of ejectment. — Code, § 2292; Falkner v. Leith, 15 Ala. 9-13; S. C., 12 Ala. 170; Roper v. Bradford, 9 Porter, 354; Goodlet v. Smithson, 5 Por. 245; Birdwell v. Bowlinger, ib. 86; Bullock v. Wilson, 2 Por. 436; Masters v. Eastis, 3 Por. 368; Johnson v. McGehee, 1 Ala. 186 ; Long v. McDougald, 23 Ala. 413.
It is equally true, that a patent, on its face, imports a complete appropriation and disposition of the lands it assumes to convey; and, subject to the rule above stated, no defect in the preliminary steps can be raised in an action at law to recover the possession of the lands. — Masters v. Eastis, 3 Por. 368 ; Suget v. Little, 24 Miss. 118 ; Perry v. O’Hanlon, 11 Missouri, 585; Boardman v. Reed,
That the location of the land-warrant, so long as that location remained uneanceled, had the effect of taking from the general government all power to make sale of the land in dispute, we apprehend no one will controvert. During that period, this land was in condition to fall directly within the principle stated in the second paragraph of this opinion. If it were necessary to the result of this case, perhaps it admits of grave doubt whether the location of December, 1853, ever was canceled absolutely ; whether the land was, or could be under the order which the commissioner issued, placed again in the market, until a reasonable time should elapse after Mr. Bates should be notified of the action of the land department, within which he might perfect the assignments on the warrant, or in some other way complete his entry. We prefer, however, to base our opinion on another principle.
By the 1st section of the act of congress of July 4th, 1836, (5 U. S. Stat. at large, 107,) it is enacted, “that from and after the passage of this act, the executive duties now
It will be observed, that this section speaks of executive duties ; and it may be doubted, whether the right to pronounce on the legality of a land-entry can with propriety be classed as an executive duty. In the ease of Barnard v. Ashley, 18 How. (U. S.) 43, the supreme court of the United States construed the above copied section of the statute of July 4th, 1836. In that case, the question was, whether the commissioner of the general land-office had any appellate or revisory power over the decisions of the local land-officers. After alluding to the cases of Wilcox v. Jackson, 13 Peters, 511, and Lyttle v. State of Arkansas, 9 How. (U. S.) 333, which arose before the act of July 4th, 1836, the court said: “ The commissioner does, in fact, exercise a supervision over the acts of the register and receiver. This power of revision is exercised by virtue of the act of July 4th, 1836, (§ 1,) which provides,” &e. [copied above.] “ The necessity,” continues the court, “of ‘ supervision and control’ vested in the commissioner, acting under the direction of the president, is too manifest to require comment, further than to say, that the facts found in this record show that nothing is more easily done than apparently to establish, by ex-parte affidavits, cultivation and possession of particular quarter-sections of land, when the fact is untrue, [otherwise.] That the act of 1836 modifies the powers of registers and receivers, to the extent of the commissioner’s action in the instances before us, we hold to be true. But, if the construction of the act of 1836, to this effect, were doubtful, the practice under it for nearly twenty years could not be disturbed without manifest impropriety.”
In Cruise v. Biddle, 21 Ala. 791, the plaintiff made title under a certificate of location by the register of the local land-office. The defense relied on was, that the defendant was in possession under a valid occupant or pre-emption claim, and that the plaintiff’s entry was void, the land not being subject to location under a bounty land-warrant. This court, after conceding impliedly that the entry was irregular, ruled, that the defendant was in by no title which authorized him to question, in an action of ejectment, the regularity of plaintiff’s location. The court added, that the settler’s remedy in such a ease was, “ by application to the government to recall the certificate, or refuse the patent, if it shall appear that it was wrongfully obtained. But that must rest with the government and the department having charge of the public lands, to whom the application must be made.”
We need not now determine whether a settler or preemptor has no other remedy than that pointed out above. See Wynn v. Garland, 16 Ark. 440. The case of Cruise v. Biddle certainly decides, that in an action of ejectment, the mere settler can make no defense at law ; and it intimates, in no measured or guarded terms, that in such case the proper department of the government has power to recall the certificate.
The case of Dickinson v. Brown, 9 Sm. & M. 130, was, in its legal principles, very like the present case. The suit was ejectment, and the plaintiff’s title consisted in a patent from the general government. The defendant relied on an older certificate of entry, issued by the receiver of the local land-office. ' It was in evidence that this older certificate had been by the local register and receiver, and under the direction of the commissioner of the general land-office, canceled on the books of the land-office. Chief-justice Sharkey, in delivering the opinion of the court, after asserting that a patent was a suprior legal title to an older certificate of entry, added — “But admitting that it [the certificate] constituted a legal title, it was in proof that the certificate of entry had been can
To the same effect, and expressed in stronger language, are the following cases; Guidry v. Woods, 19 La. 334; Lott v. Prudhomine, 3 Rob. La. 293-5 ;. Wynn v. Garland, 16 Ark. 440 ; Allison v. Blunter, 9 Missouri, 741; Lewis v. Lewis, id. 182 ; Mitchell v. Cobb, 13 Ala. 137.
We hold, that the commissioner of the general land-office had authority to order the' cancellation of Mr. Herron’s certificate of entry; and that the effect of his order to the register and receiver at Elba to perfect Mr. Bates’ location, and the confirmation of that location by the patent subsequently issued to Mr. Bates, had the effect of canceling Mr. Herron’s entry, and of destroying any effect it may otherwisé have had, as a defense in this action.
The rulings of the circuit court are in conflict with these views.
Reversed, nonsuit set aside, and cause remanded.