28 Ill. 528 | Ill. | 1862
If McDowell’s entry of this land by Campbell was a legal and valid entry, under the law, then he acquired an equitable title to the land, which cannot, by the act of the officers of the land office, or anybody else, without his consent, be divested. And he has a right to pursue the legal title into the hands of any one who has acquired it, with notice. If Fell, by his previous application to enter this and other lands, thereby acquired any right to or interest in the land, which continued in him at the time of this entry, then the land was in fact withdrawn from the market, and this entry was void. It seems that the land officers were in the habit of allowing parties tó file written applications to enter land at times when the office was closed to private entry, which, according to their intention, was to give the applicant a preemption to the lands thus applied for, if the pre-emptor should complete his entry within one month after the office should be again opened to private entry. They had no instructions to do this from the commissioner of the general land office, nor did they make any written rule of their office to that effect. They adopted that course in pursuance of a verbal understanding between themselves. And the question is, could these land officers thus make a pre-emption law which could vest in the applicant a right to enter this land at any time within the month, to the exclusion of the rights of other citizens ? The proposition seems to .us almost absurd. It is in palpable violation of the laws and policy of the General Government. If such a practice were legal, then one or a few men could, by simply filing written applications, acquire this pre-emption to all the lands in the district, and thus exclude all other persons from the right to acquire lands in the district, except by buying of these men, and virtually close the land office till they chose to come and pay their money and take a certificate for the lands, within the month. There is no law authorizing such a course, but it is in direct violation of the law. The law requires, that applications to enter land should be made openly and publicly at the land office, and if two or more persons apply at the same time to enter the same tract, then neither is entitled to it at the minimum price, but the register is required to put it up at auction, and to sell it to the highest bidder. Now this could not be done, if Fell had acquired a pre-emption right to these lands; and yet he acquired such a right, if he acquired any right at all. We do not question the right of the land officers to adopt reasonable rules for the convenient, systematic and orderly conduct of business in their office, and to change or abrogate them, as convenience may dictate. JBut such rules must not be illegal. They must not contravene the essential provisions of the laws which Congress has passed for the disposal of the public lands. They could by no rule of their own vest in any one an interest in or a right to purchase the public lauds in any mode other than that prescribed by the act of Congress. We have no doubt that Fell, by his application, did not acquire any vested pre-emption right to purchase this tract of land, but that it remained all the time open to private entry, and that the entry to McDowell was a legal entry.
It is not true, that the complainant must show fraud before he can obtain the relief sought by this bill. It is enough that he shows that he has the equitable title to the premises, and that he is entitled to the legal title, which, by some means, no matter what, has been vested in the defendant.' This is a broad and universal principle, which we are called upon to apply and enforce almost every day. Here the defendant had notice of all the facts constituting the rights of the plaintiff, and that is sufficient to make him a trustee of the legal title for the complainant, no matter what his opinion may have been of the validity of the complainant’s entry.
The decree below is reversed, and decree here that the defendant convey the legal title to. the complainant.
Decree reversed.
