16 Ill. 555 | Ill. | 1855
It would look like an idle ceremony for courts, or other legal tribunals, to sit, hear and adjudicate upon, and determine the rights of parties, if they can afterwards have no remedy to recover or enforce those rights. McGhee having entered the land before Wright’s preemption was allowed, and having also obtained the oldest patent, if the eldest entry and patent are good in ejectment at law against Wright’s junior entry and patent, although founded upon a preemption, it would be of very little benefit to Wright to have his claim allowed, unless a court of equity will interfere, and compel McGhee and those claiming under him, with notice, to surrender the elder title to the equitable owner. But the party is not remediless, for equity will aid him by compelling one having such a legal advantage over him to surrender it. Such is the case before us. Although McGhee’s entry and patent are older than Wright’s entry, yet, that entry being predicated upon a preemption claim, older than, and overreaching McGhee’s entry, when allowed, will reach back to the date of the claim, in equity, and entitle the party to relief against the other’s legal advantage. He is, therefore, entitled to have his title quieted, and this cloud over it removed. We do not conceive the objection to this decree for a conveyance, without a special prayer for it, well founded. The specific relief granted by the decree, falls clearly within the case made in the bill, and the general prayer for relief upon that case.
Wo can look no further into the question, as to the right of preemption in Wright, in this case, than to ascertain that he had preferred and pursued his claim for one before the proper, competent tribunal, having jurisdiction to hear, adjudicate and determine upon it, and that his claim and right thereto had been allowed. All this appears by competent testimony in this record. The question is become res adjudicata between the parties, and is final and conclusive in this court. Such are the repeated decisions of the courts and ministerial officers of the United States, and of the courts of this and many other States. This court has already said it would be an useless ceremony to intimate an opinion upon a question, which it has no power to decide. Gray v. Me Canee, 14 Ill. R. 344; Bennett v. Farrer, et al., 2 Gil. R. 598 ; Lessee Hickey et al. v. Stewart, 3 How. U. S. R. 761; Wilcox v. McConnell, 13 Pet. R. 511; 1 Pet. R. 340, 666, 668; 2 Public Land Laws U. S., Nos. 85, 93, 99, 140; Dickinson v. Brown, 9 Smeed and Marsh. R. 130; Mitchell v. Cobb, 13 Ala. R. 137 ; Lewis v. Lewis, 9 Mo. R. 183; Cunningham v. Ashley, 7 Eng. Ark. R. 296.
The principle is too well settled by authority to admit of further discussion, nor need I refer to more authorities in support of it.
Decree affirmed.