36 Ala. 39 | Ala. | 1860
It may be conceded, for the purposes of this opinion, that a patent which issues for lands which are reserved from sale, is void, and may be so declared in a proper case, either in chancery or at law. — See Stephens v. Westwood, 20 Ala. 275-8; Ladiga v. Rowland, 2 How. Sup. Ct. U. S. 581; Crommelin v. Minter, 9 Ala. 594; Saltmarsh v. Crommelin, 24 Ala. 347; Stoddard v. Cham
The land in controversy in this suit was ordered into market, and sold, under the authority conferred on the commissioner of the general land-office, by the act of congress of Aug. 3d, 1846. — 9 Statutes at Large, 51-2. Uy that statute, the commissioner was authorized to order into market, after due notice, and without the formality and expense of a proclamation of the president, all lands of a certain class — this being within the class— which, in his judgment, it would be proper to expose to sale. Under this statute, the commissioner of the general land-office instructed the land-officers at Montgomery to offer said lands at public sale, if, after a careful examination of the books and maps in their offices, there, appeared on them no objection to offering said iands for sale. They offered these lands for sale, and no person purchasing them at said public offer, the plaintiff in this suit, some two or three years afterwards, purchased them at private sale, and, obtaining the patent of the general government, instil uted this suit against the defendant to recover the possession.
it is contended for appellant, that this sale. is. void, because the commissioner of the general laud-office did not himself order the lands into market, without referring any question to the land-officers at Montgomery. From anything that appears in the present record, we can not learn that there was in the land-office in Montgomery any evidence which showed that said lands should not be offered for sale, except the letters I. JR. marked on the map of said section. These letters, I. JR., it is shown, when employed as in this case, are the initials of Indian Reservation, and,- unexplained, denote that the lauds thus marked are covered by locations to heads of Indian families, under the Creek treaty of 1832. It is manifest that the marking of, these letters, I. R., on the entire section 32, 10,- 29, • was the result of mistake; and as to the lands in controversy in the. present suit, it does
But there is another answer to this objection, which wo think full and complete. It will be observed that, under the act of congress of Aug. 3d, 1846, the question of sale vel non, was confided to the judgment — discretion — of the commissioner of the genei’al land-office. No limits were prescribed to the exercise of his judgment or discretion. He was made the sole judge of the propriety of a sale, and no rules, or mode of ascertaining the existence of the facts, were prescribed for him. The ease is within the rule which declares, that where an officer is clothed with authority to do an act upon certain exigencies, and no rule is laid down for ascertaining that the exigency has arisen, the doing or performance of the act by the officer is evidence that the exigency exists. Martin v. Mott, 12 Wheat. 19; Vanderheyden v. Young, 11 Johns. 150; Stuyvesant v. Mayor &c. of New York, 7 Cow. 588.
It is not pretended that Nolan, or any one claiming under him, has ever received any patent, or other evidence' of title, from the federal government. This being the case, under the act of congress of ,29th May, 1830, (4 Stat. at Large, 421,) the sale by Nolan to Howard, in 1834, was inoperative and -v-oid as a transfer of Nolan's right óf preemption. — See last clause of § 3. If,'then, there existed in any one a right to enter, by. pre-emption, said land at the minimum government price, that right was in Nolan, and uras not transferred either to Howard or McTyer, because the right to enter could not be transferred. Whether, under the statutes of 1830 and 1834, the abandonment of ■the possession by Nolan, and the sale by-him to Howard
The nature, extent and value of the right or claim conferred-by the pre-emption statutes on actual settlers on the public lands, is a question upon which the adjudged cases do not agree. In some, it is held to be more than-a mere privilege. — See Lyttle v. Arkansas, 9 How. U. S. 315-33; Cunningham v. Ashley, 14 ib. 377, 383, et seq. ; McAfee v. Keim, 7 Sm. & Mar. 780; Threadgill v. Pintard, 12 How. U. S. 24; Gingrish v. Foltz, 19 Penn. 38; March v. Gonsoulin, 16 La. 84; U. S. v. Fitzgerald, 15 Pet. 407; Perry v. O’Hanlan, 11 Mo. 385; Glanton v. Anthony, 15 Ark. 543; Wynn v. Morris, 16 ib. 414; U. S. v. Stanley, 6 McL. 409 ; Griffith v. Deerfelt, 17 Mo. 31. See, also, Glenn v. Thistle, 23 Miss. 42; Nelson v. Sims, ib. 383; Wright v. Rutgers, 14 Mo. 585; 12 ib. 333. On the other hand, there are many authorities which hold, that the settler or pre-emptioner has no title which he can sell or incumber. — Craig v. Tappin, 2 Sandf. Ch. 78; Wilkinson v. Mayfield, 27 Miss. 542; Brown v. Throckmorton, 11 Ill. 529; Gr. Gulf R. R. & Bank. Co. v. Bryan, 8 Sm. & M. 234; Doolittle v. Harrington, 1 Morris, 226; Delamay v. Burnett, 4 Gilman, 454; Bowen v. Higbee, 9 Mo. 259.
In this State, this subject has been-frequently considered. In Rhea v. Hughes, (1 Ala. 219,) this court, in speaking of the interest which a settlor on the public lands acquires, said: “His interest in the land is a mere permission to occupy it, personal to himself, and not capable of transfer so as to give any legal right to any other person.” In another place, the court had "said: “It [his claim] is neither an estate by sufferance, at will, or for years, nor can the continued occupation of the land ever operate so as to create a legal title.” — See, also, Johnson, v. Collins, 12 Ala. 322; McElyea v. Hayter, 2 Por. 148 ; Land v. Hopkins, 7 Ala. 115; Elmore v. Harris, 13 ib.
We do not, however, deem it necessary, in this ease, to determine whether Nolan has forfeited all right to' the lands in controversy, or whether he has any, and what remedy. The plaintiff below, by the production of his patent, made out a prima-facie case for recovery,' and the defense offered was insufficient to overturn it-, as we will now proceed to show.
The plaintiff' McDowell, by his patent from the Hnited States, proved himself to be the owner of all the title which the federal government possessed, or could convey. He had purchased the land, and paid the government price for it. Nolan has paid nothing, and we can not know that he ever can or will pay the purchase-money for tke-land. Neither the Hnited States, nor the plaintiff' in this suit, has any power toc.ompel him, either in law or equity, to pay the purchase-money. Nei-thex^ McTyer nor Howard is the owner of Nolan’s-pi'e-eniption. light— we mean, his right to enter the land at the minimum price — because such right, before patent issues, is not the subject of sale. If, then, this mere pi’ivilege in Nolan,, aud possession in Howard and McTyer under him, can,, at law, defeat a recovery by McDowell, the patentee, then McTyer or Nolan has acquired a perfect and independant title to this .land, without paying the government or McDowell anything for it, and without incurring any liability to pay anything. An argument which leads to such resulte, is not sound. — Iverson v. Dubose, 27 Ala. 418.
'Judgment of the circuit court affirmed..