1 Neb. 56 | Neb. | 1871
The defendants insist that the decision of the secretary of the interior adversely to Smiley’s right of preemption,
On this point, the learned judge says : “ The order for this new survey, emanated from the commissioner of the land office June 1st, 1844, and the survey was actually made in the autumn of that year, -five years after Lindsey’s entry and five years also after his death; and there is no proof
Two proceedings were had by the commissioner; one setting aside Lindsey’s entry, which was done summarily and without any notice to, or appearance by the parties in interest, and the other ordering and causing to be made the new survey, which was also without notice. I think that we are particularly concerned here only with the first; but that is a distinction which does not seem to have been observed in the opinion, and is not material to our present purpose. So that it appears that as to the facts of the case cited, the distinction taken between it and the one here, is sustained. The cases upon which the learned judge placed his decision, are distinguishable from this in the same respect.
The first of these cases is Cunningham v. Ashley, 14 Howard, 377. In 1824, Cunningham applied to locate a Cherokee warrant on land previously taken by a New Madrid certificate. The application seems to have been instantly rejected, because of this prior location. In 1831, Cunningham claimed a right of preemption in the land. He made proof to the officers of the local land office, of his improvements, and tendered the required price. This application was also rejected for the same reason. Appeals were taken to the commissioner of the general land office, to the secretary of the treasury, and the attorney general, all of which resulted in a denial of the claim. After all this, preemption entries were allowed to Plummer and Beaubean, upon the land in question, and they conveyed to the persons holding under the New Madrid location. These two entries were allowed to carry out some agreement between these parties and others; so that Cunningham could not have been a party to the agreement, nor to
In Garland v. Wynn, 20 Howard, 6, Mr. Justice.CATRoir, delivering the opinion of the court, says : “In November, 1842, William Wynn, the complainant below, proved that he had a preference of entry to the quarter section of land in dispute, according to the act of 1838, and his entry was allowed. In February, 1843, Samuel Hemphill made proof that he had a right of preemption to the same land under the act of May 26, 1830. The two claims coming in conflict, it was decided by the register and receiver at the local land office, that Hemphill had the earlier and better right to enter the land, and in this decision the commissioners of the general land office concurred. The learned judge states the matter thus : “The question is, have the courts of justice power to examine a contested claim to a right of entry under the preemption laws, and to overrule the decision of the register and receiver, confirmed by the commissioner, in a case where they have been imposed upon by ex parte affidavits, and the patents had been obtained by one having no interest secured t.o him in virtue of the preemption laws, to the destruction of another’s right, who had a preference of entry which he preferred and exerted in due form, but which right was defeated-by false swearing and fraudulent contrivance, brought about by him to whom the patent was awarded.” He then answered this question in the affirmative, laying great stress upon the ex parte character of the proceedings.
From the statement in the first part of the opinion, it ■
The next case cited is that of Lytle v. Arkansas, which was twice before the court: the first opinion being reported in 9 Howard, 154, and the second in 22 Howard, 193. In this case the entry by Cloyes under consideration was made before the grant by congress to Gov. Pope, against which it was alleged, and therefore must have been ex parte. So in fact it is expressly stated to have been “that Cloyes in his lifetime, by his own affidavit and the affidavit of others made proof of his settlement on and improvement of the above fractional quarter section, &c.” The entry was finally decided against, because these ex parte affidavits were false.
This review shows that the cases relied upon to support our jurisdiction, involved the examination of the record findings and decisions of the land office, in proceedings which were there simply ex parte. In the case which we are here considering, such is not the fact. The examination of the right of preemption as claimed both by Smiley and by Sampson, was had, upon notice to the parties, who appeared personally, and by counsel produced each his witnesses in support of his own and in opposition to his adversary’s rights, which witnesses were, in presence of the officers and the parties, subjected to oral examination and cross-examination, and arguments very voluminous and exhaustive were filed by counsel for the instruction of officers.
The register and receiver of the local office, and their superiors in the land department, form a special tribunal for some purposes and to a certain extent. The eleventh
This statute vests a power in the officers named to settle, that is, to finally determine certain questions. . Over these questions, they have jurisdiction; and their judgment thereon is conclusive. — Allen v. Blunt, 3 Story C. C. 742. The power to hear and determine a question is jurisdiction. It is coram judice, whenever a case is presented which brings this power into action. — United States v. Arredends, 6 Peters, 709. This power may be exercised according to the rules of the common law, or by special direction, or informally. — United States v. Ritchie, 17 Howard, 525. The cases upon this class of officers are all to the same effect.
The first I have noticed is Brown v. Jackson, 7 Wheaton, 218. The board of commissioners composed originally of the secretary of state, secretary of the treasury and attorney general, and afterwards of three persons appointed by the president, by and with the advice and consent of the senate, was authorized and required “ to adjudge and finally determine upon all controversies arising from such claims as aforesaid, which may be found to conflict with and to be adverse to each other.” — 3 U. S. Statutes at large, 117, § 2. The court, Chief Justice Marshall delivering the opinion, held that the award, of the commissioners upon questions submitted to them, under the act, is final and conclusive. In Foley v. Harrison, 15 Howard,
Haydell v. Dufrene, 17 Howard, 23, turned upon the question of the conclusiveness of a division of lands made under an act of Congress, 2 Statutes at large, 619-663, which provided, “-that everyperson who, &c., shall be entitled to a preference in becoming a purchaser of any vacant tract of land, adjacent to and back of his own land, &C-, and the principal deputy surveyor, &c., is hereby authorized, &c., to cause to be surveyed the tract claimed by virtue of this section. ’ And in all cases where, by reason of' bends in the river, &c., and of el'aims of' a similar character, each claimant cannot obtain a- tract equal in quantity to the adjacent tract already owned by him, to divide the vacant land applicable to that object between the several claim
Mr. Justice Catron delivered the opinion of the court, and said : “ Congress contemplated that these lands should be divided among front proprietors by a surveyor on the grounds, aided by his principal; these officers were bound to act according to their best judgment, and decide as judges on the equities of these claimants; nor could the courts of justice interfere to control their acts, if they were honestly performed.”
In Cousin v. Blaac’s Exc., 19 Howard, 202, the statute, (3 U. S. Statutes at large, 708, ^ 4,) which was the subject of consideration, provided, “that the registers and receivers of the public moneys of the said respective districts, &c., shall have power to direct the manner in which all lands, &c., shall be located and surveyed, and also to direct the location and manner of surveying all the claims to lands recognized, &c., having regard to the laws, usages and customs of the Spanish government on that subject, &c.; and that in relation to all such claims which may conflict, or in any manner interfere, the said registers and receivers of the public moneys of the respective districts shall have power to decide between the parties, &c.”
Mr. Justice Catron delivering the opinion of the court, says : “It rested vjith theregister and receiver to ascertain the location of the land confirmed to Cousin from the evidences of claim recorded and filed with the register, and having decided where and how the land should be located and surveyed, the courts of justice cannot reverse that decision.”
Many other cases might be cited to the same effect; but these are enough to show that the Supreme Court of the United States holds land officers to be special tribunals, whose decisions are conclusive between the parties, upon certain questions and matters. What are these questions
There are provisions of the act, which if a pai’ty does not answer to, exclude him from its benefits, and yet to which you would not say he must conform. Eor instance, land excepted from the act by special limitations cannot be preempted by any one, and yet you would not say of it, that a claimant did not conform to the act in that particular.
We have now shown that questions arising between the settlers, in determining which one of them shall have the preference in the purchase of a tract claimed, by both, are submitted to the judgment of the land Officers, to the exclusion of a re-examination by the courts, but that other questions are not so submitted. An examination of the act will show that the first class of questions are confined to these subjects; namely, the settlement and the priority of settlement upon the tract, and the improvements and their character, extent and value, as indicative of the bona fides of the alleged settlement made by each of the claimants. For the act says that the right shall be in the first settler, and the officers shall settle the questions arising between the settlers, the most important' of which must be the priority of the one or the other on the tract. So too, the act says the first settler must conform to the provisions of the act. These provisions are, that the claimant shall have “made a settlement in person upon the tract,” and inhabit and improve the same, “ and erect a dwelling thereon.”
In determining the questions of settlement, inhabitancy and improvements, it is evident that an inquiry into and determination of their bona fides is necessary, in order to adjudge upon the claims of the parties respectively. These are all questions of fact, of precisely the nature of such as in a common law trial are submitted to a jury. The questions arising between the settler and the government are of a different nature. One of the limitations specified in the act is, that lands included within the limits of an incorporate town shall not be preempted. Here is no question
The intention of congress and its great wisdom in these beneficent provisions is brought out clearly to view by these considerations. Nothing could be so proper as to submit to the land officers the questions of fact, touching settlement and improvement; but nothing could be so ill-advised as to entrust to them the determination of questions of law, such as we have instanced. They are generally men of intelligence in the ordinary business of life, but not trained by study or experience to the habits of investigation required of judicial officers. They are good material for juries. They are not fit for judges. This view is confirmed by the adjudged cases.
The case of Wilcox v. Jackson ex dem. M’Connell, 13 Peters, 498, arose out of a preemption entry, allowed by the register and receiver, of a tract of land on which was a military post, called Fort Dearborn, and which tract had, as was claimed, been reserved for military purposes. Mr. Justice Barbour, delivering the opinion of the court, says :
In Doe ex dem. Barbarie v. Eslava, 9 Howard, 421, this question was presented upon a decision made by the register and receiver, under an act which provided that “in all such claims which may conflict or in any manner interfere, the said registers and receivers of public moneys of the respective districts shall have power to decide between the parties,” &c. In a preceding clause of the same section of the same act it is provided that “ they shall have power to direct the manner in which all lands claimed shall be located and surveyed.” Mr. Justice Woodbury delivered the opinion, and on this point said : “ We do not consider that the act” * * “meant to confer the adjudication of titles of lands on registers and receivers. — 7 Peters, 94. Those officers are not usually lawyers, and their functions are in general ministerial rather than judicial. Sometimes, as in the case of pregmptioners, they are authorized
“ The power given them as before quoted, is to decide only how the lands confirmed shall be located and surveyed. The further power to decide on interfering or conflicting claims should apply only to the location and survey of such claims.”
In Tate v. Carney, 24 Howard, 357, the same statute came up for consideration upon the same question, and the ruling was as in the last above cited case.
I shall not refer to other cases, although they are very numerous. I do not think anything need be added to the decisive and well considered opinions of the eminent judges who pronounced these judgments. However they state the proposition, whether as a question of jurisdiction of the land officers, or of construction of the statutes, it rests ultimately upon the distinction stated above. These cases hold the findings of the land office upon the question of fact touching settlement and improvement to be conclusive; but to decisions upon questions of law as whether the land is subject to preemption, they do not award the same credit or effect.
I wish to make one observation here. In construing the 11th section of the act of ’41, I limited the questions submitted by the officers in the last clause by the preceding clause, which gave the right to the settler first in time.
This is precisely what was done by the court in construing the 4th section of the act of ’22, in the case of Doe v. Eslava, and was also done by the same court in the case of the United States v. Perchman, 7 Peters, 51. I no
What were the questions decided by the land officers in this case? On the 24th of January, 1862, the commissioner of the general land office addressed’a letter to the. register and receiver of public moneys of the Omaha land' district, ordering them to make a new and full examination into the respective claims of Smiley and of Sampson, on four points, namely : “first, the date of settlement; second, the nature and purposes of the same ; third, the nature and extent of the improvements ; and fourth, the date and duration of the residence ” of each settler.
On the 9th of June, 1862, this examination commenced before the register and receiver, and was very full and greatly protracted; and resulted in an unqualified decision by these officers in Smiley’s favor, upon each one of those questions. Sampson appealed to the commissioner, who, on the 9th day of October, affirmed the report of the local officer. Sampson appealed again to the Secretary of the Interior, who, on the 11th day of July, 1863, reversed these decisions, and awarded the land to Sampson. The sole ground of the secretary’s decision, is the fact that Smiley had, in 1857, filed on another tract of land and was by the act of March 3d, 1843, 5 U. 8. Statutes at large, 619, forbidden to file on another tract. He did not question the decision of his subordinates, upon either of the four points to which their investigation was directed. Now upon this state of .the record, it is proper to observe in the first place, that the matter on which the case was determined by the Secretary, was not referred to the local officers at all; it was not an issue to be tried, and it was not tried before them ; the Secretary’s decision on it was therefore ex parte, and comes within the case of Lindsey v. Hawes, cited above, and the other cases of the same class. But, furthermore, all the questions of settlement and cultivation arising
This is a question of law, upon which we are bound by no opinion of the officers. Our inquiries are to be entirely independent of such opinion, except as the reasons assigned by the Secretary, and his high official position, entitle it to respect.
When we say we are constrained to adopt the judgment of the land officers upon the four questions enumerated by the commissioner in his letter of the 24th of January, 1862, we do not mean to intimate that we doubt its correctness. We do not. Smiley’s account of earning the means and of the purchase of the materials with which, and the manner in which, he made the improvements on the tract, is too specific, clear and decisive to be questioned. The alleged discrepancy about the place in Virginia where he taught, is of no consequence, as he is shown to have taught near there. The material question is, did he earn the money by teaching? and disinterested witnesses show that he did. His statement, too, showing that he was the head of the family, and that the large family, consisting of an aged father and four sisters, who were dependent to a large extent upon him, is unquestionably true. Patrick, who swears to the contrary, does not commend himself by his candor, and evidently is trying to sustain his own, or; as he prefers to put it, his wife’s interests. His statements can
We are now brought to the consideration of the one question of law which was decided by the Secretary of the Interior, against Smiley.
The facts as shown by Smiley and undisputed, are these : Smiley came to Nebraska in 1857, and settled upon the lands now in question. Being desirous of securing lands under the preemption law of September 4, 1841, he made search for a proper tract, but experienced difficulty in finding one, because all the lands in the vicinity were claimed under the protection of the claim club. This club was an organization composed of some hundreds of leading citizens, which, by force in certain cases — by the use of most violent force — prevented new comers into the territory, taking under the act of congress, lands which its members claimed, not by virtue of any actual possession, but simply by joining it and entering on its records a minute of their claim. These claims were 320 acres in extent, in opposition to the law which permitted a settler to take only 160 acres. The organization in its objects, measures and operations was flagrantly illegal and vicious. Smiley,
The 15th section of the act of 1841, is as follows “Whenever any person has settled, or shall settle and improve a tract of land subject at the time of settlement to private entry, and shall intend to purchase the same under the provisions of this act, such person shall in the first case within three months after the passage of the same, and in the last within thirty days from the date of such settlement, file with the register of the proper district, a written statement describing the land settled upon, and declaring the intention of such person to claim the same under the provisions of this act; and shall, where such settlement is already made, within twelve months after the passage of this act, and where it shall hereafter be made within the same period after the date of such settlement, make the proof, affidavit and payment herein required; and if he or she shall fail to file such written statement as - aforesaid, or shall fail to make such affidavit, proof and payment within the twelve months aforesaid, the tract of land so settled and improved shall be subject to the entry
It will be at once observed that the lands upon which the filing is to be made under this act, are only such lands as are subject to private entry. The provision is, “ Whenever any person has settled, or shall settle and improve a tract of land subject at the time to private entry.” The requirement was limited to lands of that single class intentionally, for some reason which seemed good to congress; for the preceding section relates to lands not subject to private entry, providing that the proof and payment shall be made before the public sale. 'Congress had before its attention the two classes of lands, and when it required the filing of the statement, did so only in respect of one class, and designedly did not do so in respect to the other.
The lands hero in question were not at the time of Smiley’s filing subject to private entry. The facts about that filing are these : In June, 1858, he offered his filing to the register of the land office, but that officer refused to receive it, because the land had been previously entered under the act of ’41, by one Mowrey, although the register had previously decided against the validity of that entry. On the 24th of July following, Smiley filed a caveat against Mowrey’s entry, whereupon the commissioner ordered a second investigation of its validity, which examination commenced on the 13th day of December, 1858, and was protracted till the 3d day of May, 1859. These proceedings were entitled “ John A. Smiley v. James A. Mowrey the result was a decision of the register and receiver adverse to Mowrey’s claims, which they communicated to the commissioner by letter under date of May 19th, 1859. A third and fourth trial before the local officers was had, and then came on the investigation upon the four points enumerated above, as directed by the Commissioner in his letter of the 24th of January, 1862. At this last trial,
It is a well established principle, that where an individual in the prosecution of a right, does every thing which the law requires him to do, and he fails to attain his right, by the misconduct or neglect of a public officer, the law will protect him. — Lytle v. Arkansas, 9 Howard, 333.
Smiley did all that was required of him in June, 1858, when he prepared and offered to the register to be filed his declaratory statement claiming these lands, under the preemption law. The officer was guilty of misconduct in refusing to receive the paper. Smiley must be protected by law. But this is not all. From this time forth, he pursued this land, immediately filing a caveat against Mowrey’s entry, which, by pretense of the land officer was made to stand in his way, and then by successive investigations, avoiding that entry, proving clearly his own right, and following, to this hour, what must at times have seemed to him an ignis fatuus. He could not have done more, if his filing had been accepted. The want of it under the circumstances did not seem in all these successive proceedings in the land office, to have prejudiced his rights. We are therefore to regard him as filing on the land in June, 1858.
Lands do not become subject to private entry until they have offered at public sale, under the proclamation of the president. Of these public sales the courts take judicial notice. The first public sale of any lands in Nebraska, did
On the 3d day of March, 1843, congress passed an act entitled “An act to authorize the investigation of alleged frauds under the preemption laws, and for other purposes the 4th and 5th sections of which are as follows :
“ § 4; And be it further, enacted, that where an individual has filed under the late preemption law, his .-declaration of intention to claim the benefits of said law for one tract of land, it shall not be lawful for the same individual at any future time to file a second declaration for another tract.
“§ 5. And be it further enacted, that claimants under the late preemption law, for land not yet proclaimed for sale, are required to make known their claims in writing ■to the register of the proper land office, within three months from the date of this act, when the settlement has been already made, and within three months from the time of settlement, when such settlement shall hereafter’ be made, giving the designation of the tract, and time of settlement ; otherwise his claims to be forfeited, and the tract awarded to the next settler in the order of time, on the same tract of land, who shall have given such notice, and otherwise complied with the conditions of the law.”
This 5th section is the first and only provision of law requiring the filing of a statement in writing of a claim to the land, on the part of the preémptor of unoffered land. It was under this Section, that Smiley filed on these lands.
The 4th section relates to lands upon which by the act of ’41, a preémptor was required to file, which lands, as we have seen, were only such as were subject to private entry. The prohibition of the law in a second filing is therefore confined to those lands. The lands here in question not
On the other hand, unoffered land can only be purchased by preemption, and can only be preempted by a settlement and residence on the tract, which must, or at least should precede the filing ; for it is required to state the day of settlement. Of course this necessitates a personal knowledge of the tract; and whether or not it has been px-eviously settled upoxx by another. On going to the land office the claimant finding a prior filing, knows whether it. will staxid in his way; for, unless supported by a settlement, it will be of xxo consequence. The prior filixxg unsupported by settlement will not prevent his proceeding to secure the
There is another view of the matter which may be taken, and which conducts to the same result. The act of ’43 was passed to suppress certain frauds and mischiefs which had grown up under the preemption laws. Its title, the most of its provisions and its whole frame indicates this. One of the frauds doubtless was the very one which is aimed at in the 4th section noticed above; that is, of persons filing declaratory statements upon several parcels of offered lands, whereby the government-sales were retarded, and these persons were enabled to extort from others, desiring, to purchase, sums of'money, in order to remove the obstruction thus interposed. The facts of Smiley’s first filing and his withdrawal of all claim to the land, so at that time claimed by him, as they appear in the record and as they are stated above, show, very clearly, that he did not do what he did for any fraudulent purpose, nor to speculate in the public lands ; nor did any injury result to the government. On the other hand, he did what he was'justified in doing ; what any prudent man would have done under the circumstances. The government could not protect him in his rights against this violent and illegal claim club ;
The act of ’43 was passed to-suppress frauds, and Smiley’s case is not within the mischief aimed at.
It is a just, reasonable and necessary rule of statutory construction, that the general words of a law are to be restrained wher.e it is clear that they were not intended to, extend to a particular act or thing. — Grotius de Equitatu, C. 1, sec. 3, 2 Just. 43, 83. In fact statutes are to receive at times a construction which may seem contrary to the letter. The reason assigned is, that the lawgiver could not set down everything in express terms, so as to meet all the various exigencies of human affairs, and is by the necessity of the case, compelled to Use general terms, which include in their natural significance many ca,ses which were not in the intention of the law-maker. So when such a case arises, when it is clearly out of the mischief intended to be guarded against, being out of the spirit of the law, although within its letter, it is the duty of the judge to limit the terms employed. The case of Jackson v. Collins, 3 Cowen, 89, furnishes an apt example. The statute prohibited any sheriff or other officer, to whom any execution should be directed, or any of their deputies, or any one for them or either of them, to purchase any goods or chattels, lands or tenements at any sale by virtue of any execution, and declared all purchases made by them, or any of them, void. The premises in question in that case, which was an action of ejectment, had been sold by one deputy sheriff, on an execution issued under a judgment owned by another deputy' of the same sheriff, and was bid off by a third person, in his own name, but in fact, as it was claimed, for the deputy who owned the judgment, and was subsequently conveyed to him by the purchaser. It was contended that the purchaser was trustee of the deputy, and purchased the land
“ In relation to the subject under consideration in this case, the defects which existed in the common law were, that where it might become necessary for the officers of the corporation to destroy property of an individual to prevent the ravages of a fire, no provision was made for compensating the individual for his private property, which was taken for the benefit of others, notwithstanding the officers were protected from personal liability, when they could show that the destruction of the property was necessary to produce the effect. They were, at the common law, bound at their peril to decide correctly as to such necessity, to protect themselves from liability to make good the loss. Although the legislature seem to have supposed that it was only necessary to give to the'officers of the corporation a discretionary power to pull down or destroy buildings, to arrest the progress of the fire, it can hardly be presumed that they did not intend to extend this protection to the officers, as well as the compensation to the indi
“ The terms of the act appear sufficiently broad to give to the owner or lessee of the building an assessment of all the damages he has sustained by the pulling down and destroying of such building, without giving him an opportunity to remove his goods therefrom. In such a case the loss of the goods may be as legitimately considered a damage sustained by the destruction of the building, as the loss of the building itself. Both are equally within the spirit and equity of the statute, and no reason can be assigned why the individual whose property is thus taken and destroyed for the preservation of the city, should not be compensated as well for one part of the injury as for the other. — Durraussean v. U. S., Cranch, 307 ; U. Fisher, 2 Cranch, 358 ; Lessees of Brown v. Plougher, 14 Peters, 178.
Many other cases both in England and America might be cited in support of this view. And so it is at the civil law. Dornet says (O. I. til. I. § 2.), “ where the hardship or rigor of the law be not the necessary consequence of and inseparable from it, but the law itself may have effect by an interpretation which mitigates its rigor, courts may, as the spirit of the law requires, depart from the rigor which the letter of the law seems to demand, and follow rather its spirit and true intendment, rather than adhere to'a strict and rigid interpretation.”
St. Germain is thus quoted in Doctor and Student, 16 : “ In some cases it is necessary to leave the words of the law and follow that which reason and justice requireth ; and to that intent, equity is ordainetl, that is to say, to temper and mitigate the rigor of the law; and so it appeareth that equity taketh not away the very right, but only that which seemeth to be right by the general words of the law.”
There is another consideration which I will simply advert to. Throughout this Territory in 1857, and 1858, and 1859, persons did file a second and even a third declaratory statement, upon unoffered lands. They were encouraged to do so, by the land officers, who received one dollar for every filing; and these officers were directed by the commissioner of the general land office, to permit this practice, and to permit parties making a second filing, to withdraw the former one. I do not think the officer of the goverment can by such a course, put a certain construction on the law, and then when a party has been misled by it, ignore the rule he has made. That savors too much of a fraudulent
The honorable Secretary was clearly wrong in holding. that Smiley exhausted his right under the preemption law, when in 1857, he. filed on one piece of land, and that having withdrawn that statement under compulsion and completely abandoned the tract, he could not file on the lands here in question, and thus enjoy the privileges he had not willingly forfeited.
Another objection not much insisted upon at the bar to Smiley’s entry, is made in the record, and demands a brief notice. It is that these lands had been selected as the site of a city, and so were within the exceptions mentioned in the act of 1841. The facts on this branch of the case are these : There was a company known as the Sulphur Spring-Land Company, which, under the protection of this Omaha Claim Club, “claimed” some four thousand acres of land, and laid it out in town lots. By one means and another, they induced many persons to build houses on these lots. The only houses on this tract of one hundred and sixty acres, was one built by.Gant, a member and at one time the president of the company, and those built by Smiley. The company could not obtain title to the lands in any way, except by hiring parties to preempt under the act of ’41, and deed to them. This tract was in 1857 preempted by one Mowrey under a contract previously made with this company, to convey to it after his entry was made, for the consideration of $150. This was in violation of the law and of the oath he was required to take, when he made his entry. It was perjury on his part, and subornation of perjury on the part of the officers of this company. This was the entry which first stood in the way of Smiley’s preemption. In 1858, this company failed, and the forced enterprise of building the town was abandoned. The bubble burst.
From the case as thus made by Smiley in support of his right of preemption of the lands in question, we must turn for a moment to the consideration of the facts shown in support of Sampson’s right. Smiley claimed and instituted proceedings to secure these lands, in the summer of 1858. In the following winter a trial was had in a matter entitled “John A. Smiley v. James A. Mowrey,” which resulted in a decision of the local officers in Smiley’s favor. The commissioner affirmed this decision. On the 21st day of August, the commissioner directed another investigation in Smiley’s behalf, and at this time Sampson first appears on the scenes. He came into the case, therefore, not until after Smiley, by persistent efforts, had avoided the fraudulent entry of Mowrey. On his arrival in the Territory, without means, he rented a farm from the Creighton above mentioned, some miles distant from this tract, and rented the house thereon built by Gant. This house, it is claimed, he bought from Gant, giving him his' note for $3,000. He never built any other house. Immediately after, he, under the Secretary’s decision, obtained this land, he conveyed nearly the whole of it to Tuttle, the treasurer, and indirectly to Gant the president, and Patrick, the donating committee of the extinct Sulphur Springs Company, and to others, his witnesses and attorneys. We cannot doubt that this was all, as it had been agreed, when this man first asserted a claim to the tract. It was -unquestionably one of those speculations, like that previously entered into with Mowrey, into which all those parties entered, or into which they were from time to time admitted, as their services seemed to be required, in the progress of these most extraordinary proceedings. They
The decree-of the District Court was right, and must be
Affirmed.