74 Miss. 742 | Miss. | 1897
delivered the opinion of the court.
The eighth section of the act of congress of 1811 did not itself vest the title in praesenti in the state. Foley v. Harrison, 15 How. (U. S.), 131; Patterson v. Tatum, 3 Sawyer’s Cir. Ct. Rep., 165. But “when [as said in the last case cited, approving Doll v. Meador, 16 Cal., 320] the selection and location were once made, pursuant to the state’s directions, of lands not reserved, but subject to location, the general gift of the quantity becomes a particular gift of the specific lands located, vesting in the state a perfect and absolute title to the same; and that title passed by her patent.” Van Wyck v. Knevals, 106 U. S., 360, controls this case. The same learned judge (Field) delivered the opinions in all three of these cases— Van Wyck v. Knevals, Patterson v. Tatum, and Doll v. Meador.
Foley v. Harrison does not support the contention of counsel for appellant. In that case the location of the land was never approved by the proper federal authorities. On the contrary,
Patterson v. Tatum is wholly unlike the ease at bar. There the selection and location was of land expressly reserved, by the proper federal authority, from sale, and hence not subject to location. Pages 166, 170. This case is like Poll v. Meador, distinguished and reaffirmed in Patterson v. Tatum. In Doll v. Meador, as here, the party seeking to set up, in a private litigation between himself and his adversary, the invalidity of the state’s patent, based on the selection and location, was a “trespasser without title, not in privity with a common or paramount source of title.” And the court said: “There, in Poll v. Meador, the controversy was between the holder of a patent of the state and a trespasser without title, and it was held that the latter, not being in privity with a common or paramount source of title, was in no position to question the validity of the patent or the action of the officers of the state by-whom the lands were selected.” Page 172, and again at pages 174, 175. “The point here is as to the status of the party who can raise any question as to its validity, when it is regular on its face. Nor do we question the proposition that the defendant might have disputed the evidence of title furnished by the patent, by showing that the land in question was not included in the act of congress, or was within the exceptions contained in the act of this state. We only annex to the proposition the qualification that, to do this, he must first have brought himself in some privity with the common source of title. If he was a mere intruder, not possessing any claim of title, either from the state or general government, he would not be in a position to question the regularity and correctness of the action of the officers of the state in the selection of the lands in the issuance of the patents.” It must be remembered
In Van Wyck v. Knevals, supra, it was said, p. 369: “A third party cannot take upon himself to enforce conditions attached to the grant when the government does not complain of their breach. The holder of an invalid title does not strengthen his position by showing how badly the government has been treated with respect to the property. ’ ’
In this case the selection and location were duly made, under the act of the state legislature of February 26, 1812, duly reported December 19, 1811, submitted to the secretary of the treasury November 20, 1817, approved November 22, 1817, by the secretary of the treasury, and that approval was certified to the governor of the state, and a copy of the list of selected and located lands sent -him November 30, 1817. Under the authorities cited, the title ivas, thus perfected in the state; and, really, the true point of contention, properly understood, is not so much that such title was not so vested, but that the state could not thereafter sell the lands for less than one dollar and twenty-five cents an acre (sec. 9, act of 1811 of congress, code of 1857, p. 689), without a law of the United States authorizing it to do so, and that, hence, the act of the legislature of Mississippi of March 1, 1878, fixing fifty cents an acre was a nullity. It is not so much a complaint that title had not vested in the state, as that, having done so, the state could convey no title, under the act of 1878. But neither the state nor the general government is here complaining, and this defense is not available, as shown, to parties situated as are the appellants.
Affirmed.
