10 Iowa 318 | Iowa | 1860
The appellant insists that the District Court erred in rendering a decree for plaintiff; 1st, for the reason that there was not sufficient evidence to justify the court in concluding that defendant had ever agreed to convey; 2d, that if any such contract to convey ever was made, it was in contravention of the laws of the United States, and therefore void.
The pleadings and the evidence, as admitted, show substantially the following state of facts: That the plaintiff, some years previous to a survey by the government, purchased a claim in Fremont county, in a neighborhood in which there was then quite a number of settlers upon the public lands, whose farms were designated by claim lines, all of whom, as was the custom of the early settlers upon the public lands, recognized such claim lines and respected the rights of the occupants thereon; that the plaintiff continued in possession of said claim, living on the same with his family, cultivating and making valuable improvements thereon ; that 'after the lands Avere surveyed by the United States, the claim of plaintiff proved to be upon the south half of the fractional quarter section of land as above described, and that the quarter Ayas not subdivided by the government; that defendant some time in the year 1858 purchased a claim upon the north half of said quarter, lived upon the same with his family, and cultivated and improved it; that said quarter, under the laws of the United States, could not be entered in parts, but must be entered as a Avhole ; that defendant, Flan-nery, upon the 11th day of May, 1853, filed a pre-emption upon said quarter, that defendant had also previous to that date, filed upon the same quarter; that before and after such filing both plaintiff and defendant continued to recognize each other’s rights as claimants, upon said quarter; that a certain line Avas regarded as a dividing line between their respective
This is the evidence relied upon by the plaintiff to est'ib-lish a contract by defendant to convey, and which defendant urges before this court as insufficient to justify the conclusion that defendant ever did so agree to convey.
There was a distinct proposition made by plaintiff that if
It is urged by appellant that if such contract was ever made,’that it was in violation of the Act of Congress of September 4th, 1841, wMch declares that “all assignments and transfers of the right hereby secured prior to the issuing of the patent shall be null and void.”
It was the evident design of Congress, in the passage of this act, and of all acts upon the subject, to protect the rights of the bona fide settlors upon the public lands, and to prevent those who did not wish to enjoy this privilege from speculating upon this bounty offered by the government to the settler in good faith. It is the right thus given to the settler, the transfer of which is prohibited. After the title papers from the government to the pre-emptor, the govern
The decree of the District Court is affirmed.