6 Iowa 405 | Iowa | 1858
— The point made by the defendant upon the default, cannot be considered, for the reson that it depends upon the rules of the court, and these are not made a part of the case, nor is it in any way before us.
But the principal questions arise upon the sustaining the demurrer to the bill. It is not necessary to set out the numerous causes of demurrer. They are all embraced in two or three, which aver that the petitioner does not show that he had any claim of right at the time when Yass proved up his claim; that he does not show that he was defrauded by Yass obtaining his certificate, inasmuch as defendant had no equitable right as a pre-emptor at that time; and that if the county was defrauded as alleged, third parties, who do not show that they were injured at the time, have no right to complain. It is true that, as defendant urges, the error in sustaining the demurrer, is waived by the amendment; but as the court dismissed the bill for want of equity, the same questions again arise, as well as others presented by the respondent.
A prominent objection made by the defendant is, that the right of pre-emption was taken away by the act of-24th of January, 1857, (Acts 1857, 127), which repealed all prior acts allowing a pre-emption on the swamp lands; but with a proviso saving all actual settlers on said lands at the time of the passage of said act. As the act was passed in January, and the petitioner began his improvement in June, the defendant insists that the former acquired no right of pre-emption, he not being a settler at the passage of the act. But the objection is not well founded. This, and similar expressions, in statutes, has legal reference to the time of their taking effect. No other construction would be consistent with that requirement of the constitution, which provides that the laws shall be published before they take effect. The defendant’s construction would give it the same effect, as if it
Again: the respondent contends that this court has no jurisdiction in the case, and that the district court could not have it, through this bill. He argues that the original cognizance of claims on the swamp lands, is in the county court, and that an appeal lies to the district court, whose decision is final. He then contends that the plaintiff should apply to the county court, as he did, and if that court will not hear his claim, on account of a certificate previously granted, he should apply for a mandamus, and on a hearing contest the previous claimant’s right. These objections proceed upon an erroneous view of the character and object of the present proceeding. The complainant claims the right of pre-emption, and offers his proofs. The county judge refuses his application, because a prior claim has been allowed on the same land. According to the decision in Arnold v. Grimes, 2 Iowa, 18, the county judge could not set aside the certificate granted by him, but the question belongs to the courts of the state. The petitioner, therefore, goes into a court of chancery to cause that certificate to be declared of no force.
A settlement or improvement on the land, is an essential condition precedent to the right of pre-emption, and the foundation of the complainant’s bill, is the allegation, clearly and repeatedly made, that Vas.s had made no improvement, and that his certificate was obtained through fraud and misrepresentation. If the petitioner can show these things, it is his right to do so, and the effect would be to invalidate the certificate granted to Yass. The case is of the same character as some in the books, in which certificates granted by the land officers of the United States, have been set aside. It is not asked, nor expected, that this court, nor the district court, under this
The objection that the county judge is not made a party defendant, is without weight. There is no occasion for his being brought in as a party. Nor is it of any weight that the claim of Yass did not conflict with any prior claim of Rogers. If the former had not complied with the statute, and had no right of pre-emption, it was competent for any one to enter upon the land, make his improvement, and claim his pre-emption, although it were after the allowance of the certificate to Yass. There being no improvement on the land, it was subject to the entry of any one. Much of the defendant’s argument goes upon the erroneous idea, that the case is brought to this court upon error of law, instead of being an appeal in chancery, which opens the whole case.
The defendant should be held to answer the bill, and the decree is therefore reversed, and the cause remanded, with directions to proceed in accordance with this opinion.
