5 Blackf. 51 | Ind. | 1838
This was an action of disseisin by Mosier against Smith for a certain quarter- section of land in the Crawfordsville district. Plea, the general issue. Trial by the Court by consent of parties, and. judgment for the plaintiff.
It appears by bills of exception, that Mosier was settled upon, and cultivated a part of the premises described in the declaration, in 1829, and that he was in possession of' the same on the 29th of May, 1830 ; on the 13th of October, 1830, Smith procured from the proper land office the receiver’s
Smith objected to all the testimony offered by Mosier, but his objections were overruled.
Several questions arose as to the admissibility of the testimony.
1. Mosier, for the purpose of establishing his patent, having first proved, by his own affidavit and other testimony, the loss of the original, offered in evidence a copy of the record of the same in the' general land office, certified under the signature of the commissioner and the seal of his office.
2. In order to prove the affidavits of himself and another person on file in the register’s office at Crawfordsville, respecting his pre-emption right, Mosier produced sworn copies of them which were suffered to go to the jury.
The act of congress of the 29th of May, 1830, respecting pre-emption rights of settlers on the public land, which expired one year after its passage, required the person who claimed the right, to prove the prerequisites on which it depended to the satisfaction of the receiver and register of the proper land district, agreeably to rules to be prescribed by the commissioner of the general land office for that purpose. The record informs us that the commissioner’s instructions to those officers were, to take the “affidavit of the occupant supported by such corroborative testimony” as might be entirely satisfactory to them, and that the testimony so taken should be filed in the office of the register.
As these affidavits were not removable from the office where they were required to be kept, we see no reason why sworn copies should not be received in testimony in any case in which the originals would be evidence, could they be produced. They certainly would not be competent to establish the right of Mosier to the pre-emption of the premises in question, because one of the affidavits came from himself, and because both were ex parte; but we know of no objection to their being received in testimony for the purpose of showing that Mosier made claim to that right in proper season, according to the requisition of the statute. We do not mean to say, however, that any such proof on the part of Mosier was necessary ; on the contrary, as the
The same remarks are applicable to the certificate of final payment produced by Mosier.
3. A sworn copy of a letter from the commissioner of the general land office was admitted in evidence. This, was clearly erroneous ; but as it should and could have no bearing upon the merits of the cause, the error ought not to set aside the finding and judgment of the Court.
The plaintiff in error does not now urge any objection to the admission of the parol testimony establishing the cultivation of the disputed premises in 1829 by Mosier, his possession on the 29th of May, 1830, and the possession of Smith at the time of the commencement of the suit, which was undoubtedly all legal testimony.
The question whether the Court below gave a correct judgment upon the valid and pertinent testimony before them yet remains to be considered.
The legal title must prevail in this cause ; and each party claims that to be in himself — Mosier by his patent dated in 1833, and Smith by his certificate of final payment dated in 1830. It is evident that the special act of congress, and the conditional and qualified patent to Smith, cannot affect any right which Mosier may have acquired by his patent. To determine the extent of that right, it will not be necessary for us, on this occasion, to inquire whether irregularity in issuing, or fraud in procuring a patent for land from the United States, is examinable in a Court of law. As the case presents itself to us the patent must prevail, unless an elder legal title was invested in Smith by his land office certificate of final payment.
The efficacy of the certificate for this purpose depends upon a law of this state passed February the 4th, 1833. Laws of 1833, p. 112. This statute enacts, “that any and every land office certificate of purchase, and any and every land office certificate of final payment, of any lands sold at such land office, shall, before the issuing a patent thereon, be evidence that the legal title in and to the lands men
We will, then, proceed to examine what are the rights of Smith under this -certificate, in the same manner as if no patent had ever issued to him.
He claims the litigated property by virtue of a private purchase of the United States by ordinary entry. Mosier demands it under a pre-emption right, which he alleges existed in’ him at the time of Smith’s entry, and which he afterwards perfected by his patent. The land in controversy lies in a district which had been proclaimed for sale by the president of the United States prior to the passage of the law of congress of the 29th of May, 1830 ; and therefore, as Smith contends, is not within its operation. The first section of that law provides, that every settler or occupant of the public land prior to its passage, who was then in possession, and had cultivated any part thereof in the year 1829, should be entitled to a pre-emption right to be enforced in the manner pointed out by other parts of the law. This section is plain and embraces all the public lands, with the exception of certain reservations to the United States and the states ; but there are other passages in the act which have created great doubts whether the privileges
Soon after its passage, it received a construction from the secretary of the treasury of the United States, which was transmitted through the officers of the general land office to the receivers and registers of the several land districts, and by them acted upon. This construction was, that preemption rights extended as well to lands which had been proclaimed for sale previous to the 29th of May 1830, but which remained unsold, as to those which had not been so proclaimed. . This interpretation by a high federal officer whose duty it was to execute the law, is certainly entitled to great respect ; but had we no light on this subject but what is derived from that source, respectable as it is, we should hesitate before we adopted the same opinion. We have, however, other guides to a correct conclusion. The framers of the law, themselves, have impliedly declared their intention in passing it, and have thereby sanctioned the construction of the secretary. Since the passage of the statute, with full knowledge of the sense given it by that officer, congress has repeatedly revived it without any explanation or alteration of its terms. This we cannot suppose they would have done, had their meaning been mistaken by the functionary on whom the execution of that, and the reviving laws, devolved.
Lands, then, which had been proclaimed for sale by the president of the United States on the 29th of May, 1830, but which remained unsold, were subject to the pré-emption right conferred by the act of that date.
The parol testimony in the case proves, that, in 1829, Mosier cultivated a part of the quarter section in dispute, that he was living on it on the 29th of May, 1830, and even at the time of Smith's entry. Mosier's right of pre-emption, therefore, existed at the latter period ; of this right Smith was bound to take notice ; he entered the land subject to it, and being so bound, and having so entered the land, he cannot be said to be the legal or bona fide holder of the cer
The judgment is affirmed with costs.