36 Ky. 188 | Ky. Ct. App. | 1838
delivered the Opinion of the Court.
Isaac Harrison filed his bill against Woodruff, asserting a r]ght of preemption to a quarter section of land in the land district west of the Tennessee river, by virtue of a settlement thereon, prior to and at the passage of the act of the 14th of January, 1831 — alleging that one. Baker Woodruff had entered the same within the nine months during which time the preemption privilege was secured to him.
The facts in this case are not essentially varient— except in two particulars — from the facts in the case of Johnson vs. Gresham, decided at the last term, by this Court. 5 Dana, 542.
The two particulars in which a diversity exists, are—
First. It is not charged in the bill, nor does it appear in the proof, that a patent has issued to Woodruff.
Second. It is not alleged, or proved, that the complainant, within the nine months, tendered the State price to the Receiver, and offered to enter the land.
First. The statute of the 14th of January, 1831, (Statute Laws, 1064,) makes it unlawful for any other than the actual settler, for nine months next succeeding, to locate arLy qUarter section which has been improved by the J 1 A ^ settler. And. it has been contended .by the counsel for t^ie defendant, that any entry made in violation of the provisions of this act, is null and void; and the Receiver should receive the entry of the settler as if no entry had been made, and if he refuses to do so, the proper and only remedy is by mandamus, to compel him. And that a bill in chancery will not lie to compel a surrender of a void entry.
Though a mandamus would lie, we cannot doubt, up- ° ' . on mature consideration, but that a bill in chancery is a
By the act of 1825 (Stat. Laws, 1054,) the Reciever is required to k'eep a record of the entries and to give to the locator a printed certificate, describing the quarter entered; upon the presentation of which to the Register, by him, or his assignee, the Register is required to issue a patent “forthwith, as soon as practicable,” and record the certificate in a book ■ to be kept for that purpose.
The certificate, when issued, is made the evidence of title, and the basis of the patent. When once issued, it is' out of the power or control of the Receiver, and may be assigned to any one by the holder, and upon which he may demand and obtain a patent, at any moment, when presented to the Register.
Should a mandamus, therefore, be sued out against the Receiver, to compel him to admit an* entry to be made, and to issue a certificate thereon to the settler, while it is depending, a patent might be at any time demanded and obtained, on the outstanding certificate; and if obtained, a further proceeding in chancery would be necessary — as determined in the case of Johnson vs. Gresham — to obtain a relinquishment, or cancelment, of the outstanding patent. If the patent should not have issued in the mean time, and the Receiver should be compelled to admit the settler to enter, and to grant to him a certificate, then there would be two certificates out.standing, upon both of which the Register could not legally issue patents, and the rights of the holder of the first, or his assignee — not being a party or privy to the proceedings against the Receiver — would not be concluded by the judgment; and being the holder of the elder certificate, might still well demand the patent upon his claim. To compel the Register to issue a patent upon the junior certificate, it would still be further necessary to sue out a mandamus against him. And if he
Admitting, therefore, 'that' a mandamus would lie, it would be an exceedingly circuitous remedy, and not at all adequate to the attainment of full, final and complete justice.
It presents, therefore, just such a case as demands the interposition of the chancellor; who may at once bring all necessary parties before him, act upon the parties and their claims, and bring tb a conclusion the whole matter of controversy between them.
The settler has an initiate or inchoate equity. Impediments and obstructions to the emanation and completion of his title, have been thrown in his way, by the illegal act of another — he asks the chancellor to remove them, and aid him in the consummation of his equitable right, and afford protection to his settlement, against this outstanding illegal incumbrance. 1 .
It matters not to him whether it be done by cancelling the void evidence of title, or by compelling the holder to release or assign it to him. But the one or the other mode, and that which shall be deemed most effectual to attain the object, he has a right to ask the chancellor to do.
As the entry is illegal and mid (and consequently the certificate upon it,) when the patent had not issued, it would be effectual, and unquestionably competent, for the chancellor to declare them void, and order them to be cancelled, as the means of removing the impediment tó the consummation of the settler’s equity, and the protection of his possession, and, at the same time, also, or-
Second. We do not believe that it was - indispensably incumbent on the settler to make a formal tender of the money to the Receiver, and an. offer to enter, after the illegal entry was made,'to entitle him to redress. Such tender and offer would have been unavailing. The Receiver having once received the State price on the quarter, and entered it, and granted a certificate, had no legal authority to receive it from another, or allow it again to be entered, or grant a.second certificate. Nor was he invested with the power to judge between the claimants, and disannul an entry once made, upon the assumed ground that the applicant' was a settler. To require him, therefore, to make a formal tender and offer to eriter, would be to requiré him to do an useless and unavailing act.
But as he is alone entitled to a decree upoii the strength of his own equity, he must show, in some form, that he
But as the adversary entry is declared void, and, while it remains in entry, may be treated as a nullity; the settlement, if continued, is protected by each subsequent act, against such void entry, as well as against future entries. And if the settler’s preemptive privilege under a subsequent act, is perfected by an intention and effort to -locate before his privilege terminates under the same act, his equity will overreach the adversary patent which may issue after the date of the act.
And, as in the case before the Court, it does not appear whether the patent of Woodruff' has yet issued, and as Harrison continued a settler on the quarter, up to the time of filing his bill, and after; the filing of the bill, tender of the State price thereon to Woodruff, and prosecution of his suit, constitute sufficient evidence of intention and effort to appropriate the land under the act of February 20th, .1835. And if Woodruff’s claim remained in entry up to the date of that law, Harrison’s equity Was complete, and he ought to have had a de
And as the defendant has not exhibited and relied on ■ a patent, or shown that one has issued, or when it issued, but merely sets up and relies on the validity and superiority of his entry, this Court must decide the cause upon the assumption that his claim rested in entry at the hearing below, or, if he had a patent, it issued at a time 'when the complainant had a subsisting equity, and therefore, if exhibited, could not have been available against it, according to the principles settled in this opinion. But as it may have issued since the hearing, or before, and if it has, the decree for,the assignment of the certificate would be inoperative and ineffectual, it is proper to frame the decree, in such form as to attain the end and object of the suit.
It is, therefore, the opinion of the Court, that the decree of the Circuit Court be reversed, and the cause remanded that an interlocutory decree may be rendered, requiring the defendant to produce and assign the land certificate for the quarter in contest, to the complainant, on or before some day, to be fixed, in the ensuing term of the Court, upon the complainant’s paying into Court, to be paid over to the defendant, when the assignment is made, the State price paid by him, and interest thereon, and upon his failure and inability to do so, then that the Court render a decree requiring him, upon like terms, to release and convey, by quit claim deed, all title and interest in said quarter, to the complainant; or render, such other decree as may effectuate the objects of the bill, and also a decree for the costs. And the appellant is entitled to his costs in this Court.