18 Ala. 798 | Ala. | 1851
Tlie material facts brought to our notice by the bill, may be thus stated: In the year JS33, it was agreed between Jeremiah Dial and John Dial, his son, who was then a minor, that John should take possession of the north-west quarter of section eight, township nineteen, range two, west, being land lying in the Detnopolis district, and occupy the same, until he should become entitled to a pre-emption thereto according to the laws of Congress, and that the title should be procured in the name of the son ; but the father was to pay the government for it, and when the sett became of age, he was to execute to his father a title to one half, retaining the other half himself as a compensation for his occupancy and cultivation of the land, and procuring the title thereto. It is further shown, that in pursuance of this agreement, John took possession 6f the land, and occupied and cultivated it until some time in the year 1S34, when he proved his pre-emption claim and procured
Two questions are raised upon the face of this bill. First,— it is insisted, that the contract between the father and the son was illegal; second — that the title of the faiher, being a mere equity, and not evidenced by'any instrument in writing, the Orphans’ Court had no jurisdiction to decree a sale of it.
It may be admitted, that at the time of entering into this agreement, there was no particular act upon Lhe subject of pre-emptions that declared such a contract void in express words, but if, upon a review of all the legislation of Congress upon the subject, such a contract would be considered as contravening the design and policy of the laws, a court of equity would not enforce it. I will not quote the provisions of the various acts of Congress upon the subject of pre-emption rights, but will only say, that Congress never designed to open a door to speculation, or to confer benefits on those who were not actual settlers on the public land. The whole object and design of the laws were intended to benefit the actual settler or occupant, by enabling him to secure his home, and thus place him above the power of the speculator; but when he liad done this — when he