14 Iowa 301 | Iowa | 1862
This controversy relates to certain lots in the city of Dubuque. The bill was once held to be multifarious by the District Court, which ruling was reversed by us and the cause remanded. (9 Iowa, 422.) The case is now before us upon its merits.
By the act of Congress, approved July 2, 1836 (Revision, 962), it was provided that the tract of land including
This act was amended March 3, 1837 (Revision, 963), the amendatory act providing that the duties required of the Surveyor General should devolve upon a board of three-commissioners. These commissioners were given power to hear evidence and determine all claims to lots under the original act. They were to file, with the proper register and receiver of the land office, the testimony in each case, together with a certificate in favor of each person having the right to pre-emption; and upon making payment to the proper receiver of public moneys for the lot to which such person was entitled, the receiver was required to grant a receipt and the register to issue a certificate of purchase to be transmitted to the Commissioner of the General Land Office, as in other cases of sales of public lands. After all cases of pre-emption were heard by the commissioner, the register and receiver were required to expose the residue of the lots to public sale to the highest bidder. •
Between October 10, 1837, and August 20, 1838 (inclusive), George L. Bowers, claiming to have made improvements and be in the actual occupancy of the lots in controversy, made proof of the same before tbe Surveyor General and board of commissioners, and the latter, in July, August and October, 1838, recognized by their certificates
It is in substance admitted by respondents that if Bowers at his death had an inheritable interest in these lots, or such an interest as descended to his heirs, as real estate, then Snow had no authority to sell the same as he did On the other hand, it is admitted by complainants that if he had not an inheritable interest, their rights were divested by such sale, and they are not entitled to relief as against respondents. The question, as thus made, we shall decide without waiving thereby the weight that should be given to the action of the register and receiver in granting the receipts and certificates, and the patent founded thereon.
Upon authority, and aside from some aid drawn to complainants’ case from the doctrine of estoppel, we are of the opinion that complainants’ bill was properly dismissed. "We then inquire, first, whether respondents are in a position to be estopped from denying complainants’ title? And we remark that all of the cases in which this doctrine has been applied in connection with this character of title, differ essentially from the one before us. Thus in Thredgill v. Pintard (12 How., 24), the object of the bill was to enforce
And thus it will be seen, without reference to other
Notwithstanding, then, such sale by the administrator, can complainants have the relief asked ? It will be observed that the decedent had only established his right to pre-empt these lots. He had paid no money, nor obtained any duplicate receipt or other evidence of title. The substance of all that had been done then was, that he had a naked possession, made proof thereof, and had the same recognized by the commissioners. Did this invest him with such a title as to make it inheritable ?
The dominium utile, as contradistinguished from the dominium directum, in the lands seized by the Romans in their conquests, differed very essentially from the right of a pre-emptor under our laws, from the fact that there, by the direct sanction of the State, such use or enjoyment was absolute, and was descendable and alienable, and might even be acquired against the State by quasi prescription, founded on long undisturbed possession. And hence it is spoken of as “ a right which the vassal hath in the land, or some immovable thing of his lord, to use tbe same and take the profit thereof hereditarily or in perpetuum.” (1 Spence’s Eq. Jur,, 31 and 33.) Until by the direct sanction of the State
Nor is the claim that this title is inheritable because it is indeterminate entitled to more force. Under the law it may be determined. For by the act of July 2, 1836, the pre-emptor was required to make his purchase within six months from the time the plat was returned to the Secretary of the Treasury. .Under the amendatory act it certainly would not be insisted that such claimant could enjoy his possession without limit as to time, and that the commissioners could not sell if the occupant failed to make his proof. The law extended to the occupants the privilege of proving up their pre-emptions. If they failed to do this, then these lots fell within the “residue,” which the register and receiver were required to offer at public sale. Such right was no more indeterminate than an estate at will, or the mere license of the owner of the fee to another to occupy land for an indefinite period; and yet these certainly do not possess the dignity of an estate of inheritance.
But we are not without express adjudications upon this subject. Davenport et al. v. Farrar (1 Scam., 315), is directly in point. Says Lockwood, J.: “A pre-emption interest in land is unknown to -the common law- Does then a pre-emptioner, under the act of Congress, possess in law or in equity an estate of inheritance ? It would seem to be sufficient merely to state the question to answer it in the negative. What is his right ? It is a right to purchase at a fixed price in a limited time in preference to others. If he is either unable or unwilling to purchase at the price, or by the time mentioned in the law, the land can be sold to others and the pre-emptioner turned out of possession as an intruder.- These conditions annexed to his possession
The case of Harrington v. Sharp (1 G. Greene, 131), was where one party held a pre-emption under the acts of Congress now under consideration. By the statutes of the State, a judgment was declared a lien on the “ real estate of the person ” against whom it was rendered. The question determined was whether a judgment would operate as a lien on a pre-emption right. Says Greene, J".: “We understand by the term real estate that the fee simple or estate of inheritance must be in the person. A mere preemption right confers no such fee or estate.” And to the same effect is Delancey v. Burnett, 4 Gilm., 454; Clark v. Shultz, 4 Mo., 235; Brown v. Throckmorton, 11 Ill., 530.
The only case to which our attention has been directed, that can be construed as holding a contrary doctrine, is that of Davis v. O'Ferrall, 4 G. Greene, 358. From the reference already made to this case, it will be seen that the dower was allowed the widow upon the ground that Bissell and those holding under him were estopped from denying the pre:emptor and vendor’s title. The case was decided by a divided court, Greene, J., dissenting. And if that case is to be treated as holding that a widow may have her dower assigned in lands to which her deceased husband had a pre-emption right merely, and which he assigned by his own conveyance, she not joining in it, we feel constrained to hold that it is not in accordance with the views we entertain of the character of the pre-emptor’s claim, nor the uniform current of decisions upon this subject.
The decree is affirmed.