McKean v. Crawford, 6 Kan. 112

McKean v. Crawford

6 Kan. 112 | Kan. | 1870

Tbe opinion of tbe court was delivered by

Sarford, J.:

Tbis was a proceeding in error brought to reverse tbe judgment of tbe district court, rendered upon the report of a referee, to whom all of tbe issues in tbe case below, both of fact and of law, were submitted for decision. No exceptions were taken to the findings of fact in said report; but to tbe conclusion of law, as found by the referee, objection was made by the plaintiff, and such objection was beard, upon a motion to set aside tbe report so far as it related to tbe said conclusion of law. But the court refused tbe motion to set aside, and proceeded to render judgment in accordance with tbe said finding of law by tbe referee; whereupon tbe plaintiff duly excepted.

By reference to tbe facts as found it will, among other things, be seen tbat John J. Swifie, one of the defendants, here and-below, preempted the land which was tbe subject of tbe action, on tbe 26th day of July, 1859; tbat after be had so preempted tbe land, and bad paid for tbe same, be received from tbe proper officers tbe usual certificate of entry; tbat thereupon, and upon tbe same day be executed and delivered to tbe plaintiff, as president, etc., a deed of tbe same land, with tbe usual covenants, and received a valuable consideration therefor. But bis wife did not join in said deed. Upon these facts tbe conclusion of law was based, and was as follows, to-wit: “ And I find as matter of law, that said deed of “John J. Swifie to tbe plaintiff having been executed “ and delivered before tbe patent for said land was issued “ from tbe United States to said John J. Swifie, is, for that *118“ reason, void; and the plaintiff, for that reason, cannot “ recover, and the defendants are entitled to judgment “ for costs.”

1. Title of preprehMemd efoie patent. Here then, is to be found the all-important, and almost the only question, which is raised in this case : Was the deed of John J. Swifle to the plaintiff, void, and for the reason stated ? The claim or assumption that the deed was so void is based upon the construction which was given to the twelfth section of the preemption act of Sept. 4, 1841, (5 U. S. St. at Large, 456,) by the referee and the court below. Said section is as follows :

“ Sec. 12. And be it further enacted: That, prior to any entries being made under and by virtue of the provisions of this act, proof of the settlement and improvement thereby required shall be made, to the satisfaction of the Register and Receiver of the Land District in which such lands may lie, agreeably to such rules as shall be prescribed by the Secretary • of the Treasury, who shall each be entitled to receive fifty cents from each applicant for his services to be .rendered as aforesaid; and all assignments and transfers of the right hereby secured, _prior to the issuing of the patent, shall be null and void.”

2. Construction of of i84i. *1193. Preemptor may Intry.nandbe-1 fore patent is-6Ue8’ *120— Patent issues to preemptor lor gmntee.oí his *118We do not think that the last clause of this section sustains the position assumed. The right here mentioned, as being secured by the act of which this section is a part, is the right of preemption. Such right is defined to be, the right “which a person, who has complied with certain requirements ot the law, has, to purchase a portion of the public lands at the minimum price, to the exclusion of all others. It is wholly a creature of the statute, and is exercised and exhausted as soon as the purchase and entry are made.” 2 Minn., 168. If these views be correct as to what the (3xpression; “ right hereby seóured,” as used in said sec*119tion twelve, relates, and as to the meaning of the term “ preemption,” it would seem to follow, that it is only of such right of preemption., that an assignment or transfer, prior to the issuance of the patent, is prohibited; and that upon the exercise of such right by the purchase and entry of the land, which has been made the subject thereof, there would be nothing substantial upon which the prohibition could act. It is true, that such prohibition may be held to operate so as to prevent the assignment and transfer of the preemptor’s certificate of purchase from being made in such a way as to enable the assignee to receive a patent for the land covered by it, in his own name; but this is all that can be claimed for it. There are. good and no doubt sufficient reasons for saying that the’pi’ohibition reaches to this extent, though it does not seem important that, they should be given here. But to say that, because the assignment of a preemption certificate will not be sufficient to authorize and cause the patent which is supposed to follow it, to be issued in the name of the J assignee, the preemptor cannot dispose of his purchase in any other way, or at all, is, to our minds, reaching a conclusion which does not follow, and which has no sufficient premises .upon which to rest. But, to return to the line of argument above suggested, it is to be observed, that, from the time of the preemption, and payment of the price of the land, the rights and relations of the preemptor are changed. He has now become a purchaser. Relative to this point, the same Judge above quoted from, remarks that, “ After the entry, the rights belonging to the preemptor, as to the land, are those acquired by reason of his having purchased a portion of the public land, and are not different from those *120of other purchasers.” By reason of his compliance with all of the requirements of the law in respect of his preemption, he was entitled to the exclusive right to purchase a particular portion of the public domain; and having paid therefor, he has obtained the same legal title or right to his land as such other purchasers have to theirs; and he cannot be deprived of such right, nor the benefits to be derived therefrom. As a matter of course, this conclusion is reached upon the presumption that every successive step in his proceedings has been free from fault or fraud; and this is implied in the statement made. It is further to be observed in this connection, that when the preemptor has properly and honestly “ proved up,” as it is called, and has paid for his land, which he must do on receiving his certificate of purchase, he has done all that the law requires of him, or any other purchaser, and indeed all that he can do in the premises. His rights are no longer inchoate, but have become fixed and absolute; and it only remains for the government, through its proper officers to furnish him with the verification of his title, by the issuance to him of the patent. To the preemptor himself this, it seems, must x x 7 go ; but in case of a previous sale of the land, such patent inures to the benefit of his grantee upon plain and well-established principles. The right which such preemptor has to his patent is full and complete, from the date of the purchase, although as a matter of fact, the receiving of it may be, and often is, for a long time delayed. But this fact cannot opex’ate to his detriment, and it ought not. He already has, or may have, all of the elements of a perfect title as defined by the books, to-wit, the actual possession — the right of possession, by virtue of having complied with the law — and the *121right of property, by reason of having purchased and paid the consideration for his land. If this be true, it is surely in vain to contend against the proposition sought to be established in this case. But a further argument is to be drawn from the language which has been used in the section referred to. The word land is not used at all, nór any corresponding term ; and it seems reasonable to suppose that if a sale of the “ land,” after the right ■spoken of had been exercised, had been intended to be prohibited, such intention would have been expressed in the clearest and most unmistakable terms. This certainly is not the case here. Another argument is to be derived from the fact, that in many of the states the same view as above expressed has been recognized, and a policy in harmony therewith has been adopted.

But it is perhaps unnecessary to pursue the subject further, as in our opinion enough has already been advanced, to show sufficient grounds upon which to base our conclusions. ¥e shall therefore hold that the prohibition referred .to only prevents the assignment and transfer of the right of preemption, prior to an entry of the land preempted, and the issuing of a patent to the assignee in his own name, in case of a sale of such land; and that the right to sell the land so preempted, or his interest therein, rests with the preemptor from the date of entry and purchase. 2 Minn., 155; 5 Wis., 475.

The judgment heretofore rendered herein is reversed, and the case remanded to the district court, with instructions to dismiss the action as to Amelia A. Swifle so that her rights may be saved, and to entey judgment against the rest of the defendants, upon the facts found by the referee, and in accordance with the views expressed in this opinion.

All the Justices concurring.