35 Iowa 72 | Iowa | 1872
This whole subject has recently received elaboi’ate and exhaustive consideration in the supreme court of the United States. See Johnson et al. v. Towsley, December term, 1871. In this case the contest arose out of rival claims to the right of pre-emption of eighty acres of land. The register and receiver, after hearing these claims, decided in favor of Towsley, and allowed him to enter the land, receive his money, and gave him a patent certificate. On appeal to the commissioners of the land office their action was affirmed, but on a further appeal to the secretary of the interior the action of those officers was reversed, and the patent issued to Johnson. Towsley brought an action in the proper State court of Nebraska,
In the case of Sampson v. Smiley, supreme court United States, December term, 1871, Smiley was in the same condition as Curry, having no certificate or other evidence of title. Tet the court held that this fact made no difference in his rights, and affirmed the decree of the supreme court of Nebraska, declaring Sampson a trustee of the title, for Smiley, and directing him to convey accordingly. This last case, in the principles involved, is on all fours with the present. In view of these authorities, as well as upon principles of natural justice and equity, we do not hesitate to hold that the facts alleged in defendant’s answer entitle him to the relief prayed.
II. Some minor questions are argued by appellee, such as that the answer does not show that defendant is entitled to a pre-emption, in that it does not allege that he is not the owner of three hundred and twenty acres of land, nor that lie has never previously had the benefit of the pre-emption act. And that it does not show that he is entitled to a homestead in that it does not aver that he has never borne aims against the United States, nor that he had never before availed himself of the provisions of the homestead act.
And that the cross-petition is defective in that it does not allege a tender, to plaintiff or his grantor, of the purchase-money paid by him.
Without determining the necessity of any of the aver
Reversed.