Dunn v. Schneider

20 Wis. 509 | Wis. | 1866

Cole, J.

It is very clear that the complaint in this case is defective for omitting to state those facts which would show that Reed had a right of pre-emption to the land in controversy, and that he perfected this right by performing the conditions annexed to it by the law of Congress upon that subject. The plaintiffs seek to overreach the title of Schneider, or claim to have the benefit of the title vested in him by the patent, solely by reason of their superior equities derived through Reed’s entry; and yet they fail to show in the complaint that Reed was entitled to enter the land as a pre-emptor. Since that entry, therefore, was the origin and source of all their rights in the premises, it ought at least to appear that it was valid and legal. Now the material allegation in the complaint bearing upon the point of Reed’s entry, and the acts performed by him in perfecting his pre-emption right, is the following: that on or about the first day of September, 1852, one James Reed, who then was and ever since has continued to be a citizen of the United States, and a citizen of the state of Wisconsin for some years after the said first day of September, 1852, entered by pre-emption and purchase from the United States, at their land office at Menasha, in the state of Wisconsin, the lands therein mentioned, which were subject to entry at said land office ; that at the time of the proving up of the said pre-emption claim to the land, and the entry thereof, Reed paid the receiver of said land office the government price therefor, and received a certificate of such entry and purchase. These are the material facts stated in the complaint in regard to Reed’s entry, and they fail to show that he had a valid pre-emption right to the land. The act of Congress requires the claimant (being one of the class of persons described therein) to enter in person on the land open to pre-emption, with the intention of availing himself or herself of its provisions ; to make and file with the register of the proper district, within thirty days next after the date of such entry and settlement, a written declaration of the intention to claim the land, and then inhabit and improve the same by erecting a dwelling thereon; and he must further make proof of these things to the satisfaction of the officers of the land district, and payment within the specified period, in order to perfect the pre-emption right. These things are rendered requisite and necessary to establish a valid pre-emption; and a person failing to perform them within the specified time could, not claim the benefit of the act. As already observed, the complaint fails to show that Reed made a settlement in person upon thé land, or that he filed his declaratory statement, or made improvements upon the property, or in other respects complied with the law. Therefore, for aught that appears, his entry might have been invalid, and properly vacated and set aside by the commissioner. And although it is afterwards stated that the entry was re-instated on the application of the plaintiffs, yet we do not think this cures the defective statement in regard to Reed’s entry. And since the plaintiffs acquire all their equities and rights in the property through this entry, it ought to appear that it was valid, and that Reed performed those acts necessary to be done to perfect his pre-emption right. We therefore think the second ground of demurrer well taken.

The question as to how far courts of justice have power to examine a contested claim to a pre-emption right, and to review and reverse the decisions of the land officers made upon such claim, has been fully discussed upon this appeal. It is claimed that the complaint shows that the patent was awarded to Schneider through a fraudulent contrivance and false sug-gestión as to the citizenship of Reed, and that the relation "between the parties was such, growing out of the occupancy of the premises, that a court of equity would go behind the patent and contol the title vested under it according to the real equities of the case. It is very evident that this question is not now before us, and we are therefore disinclined to express any opinion upon it.

By the Court. — The order of the circuit court overruling the demurrer is reversed, and the cause remanded for further proceedings.