Swamp lands located on a military land warrant prior to the
passage of the Swamp Land Act of September 28, 1850, but patented
to the locator subsequently to the passage of that act, were not
included in the lands granted by it to the several states.
Section 891 of the Revised Statutes authorizes certified copies
of records of the Land Office at Washington, concerning the
location of land warrants, to be introduced in evidence.
The delivery of his warrant by the holder of a land warrant to
the proper officers of the government, with direction that it be
located on a designated tract of public land, constituted a sale of
that tract within the meaning of the Act of September 23, 1800, 9
Stat. 519, c. 84, granting the swamp lands to the states.
The case is stated in the opinion.
MR. JUSTICE MILLER delivered the opinion of the Court.
The writ of error in this case brings before us for review a
judgment of the Supreme Court of the State of Illinois. The suit
was brought originally by the present defendant in error, Gertrude
Uthe, against Morton Culver and Michael Gormley, in which she
sought to recover on eleven promissory notes made by them March 23,
1874, all of which were due and unpaid at the commencement of this
action, and on which she
Page 133 U. S. 656
claimed to recover the sum of $7,000. To this the defendants
pleaded, among other defenses, that the notes were given as the
purchase price of a quarter section of land in Cook County in that
state, and that the consideration for which said notes were given
-- namely, the title to said quarter section -- had utterly failed,
and that plaintiff had no title to the lands which she sold to the
defendants at the time of the sale or at any other time.
The plaintiff recovered judgment against defendants
notwithstanding this plea, which was affirmed in the supreme court
of the state upon a writ of error issued by that court, and it is
that judgment which we are called upon to review. 116 Ill. 643.
The facts out of which the jurisdiction of this court arises and
on which we are to determine whether there is error in the judgment
of the supreme court, are substantially as follows:
The father of the plaintiff, Gertrude, in whom the title which
she sold to the defendants originated, had a patent from the United
States for the land in controversy dated February 10, 1851, which
purported on its face to be issued under the Act of Congress of
February 11, 1847, 9 St. 123, on a military land warrant that he
had deposited in the General Land Office.
This land warrant was located on the land in question, at the
land office of the United States in Chicago, Illinois, on July 10,
1850, under the authority of Uthe himself, and the land warrant
certificate was delivered up, and the patent aforesaid issued to
him in due time, and after the proper course of proceedings. There
does not seem to be any valid objection to the mode in which this
was done.
The defense relied upon the fact that the land in question was
swamp land within the meaning of the Act of Congress of the 28th of
September, 1850, 9 Stat. 519; that by that statute, the title to
the land was transferred to the State of Illinois between the time
of the location of the military land warrant and the issue of the
patent for it to Uthe; and that therefore the title claimed under
Uthe utterly failed, being vested by that statute in the State of
Illinois, the act being a grant
in praesenti and taking
effect at its date.
Page 133 U. S. 657
The first section of that act reads as follows:
"To enable the State of Arkansas to construct the necessary
levees and drains to reclaim the swamp and overflowed lands
therein, the whole of those swamp and overflowed lands, made unfit
thereby for cultivation, which shall remain unsold at the passage
of this act shall be, and the same are hereby, granted to said
state."
The act is extended by its fourth section to the other states of
the union in which there were swamp lands belonging to the United
States, including the State of Illinois, and the argument of the
defendant in error is that, by reason of the location of the
military land warrant of Uthe on this land on the 10th day of July,
1850, nearly three months before the passage of this act, it had
been sold to Uthe within the meaning of the statute, and this is
the principal question which we have to decide.
There does not seem to be any doubt that the land in controversy
was swamp land within the meaning of the act of Congress, and if
the location by Uthe of his land warrant did not create a right to
the land which excludes it from the grant to the state by Congress,
the plaintiff Gertrude had no title, and the defense should have
been sustained.
The first objection taken to the claim of Uthe was to the
introduction in evidence of the certified copy of the records of
the land office of the United states at Washington concerning the
location of the land warrant by Uthe. This transcript is certified
by L. Harrison, Acting Commissioner of the General Land Office,
under the seal of his office, and contains the various acts of the
register and receiver of the land office at Chicago and of Uthe in
regard to the location of the land, showing that it was subject to
location at the time, and that the land warrant was properly
delivered up and deposited with the Commissioner of the Land
Office.
The objection made in the brief of counsel to the reception of
this copy is not very clearly stated. It is said that a simple
inspection, both of the United States statute and of the Illinois
statute, would show conclusively that it could not be admitted
under either of them, and reference is made to section 20,
Page 133 U. S. 658
c. 51, of the Revised Statutes of Illinois and section 906 of
the Revised Statutes of the United States. But section 891 of the
latter statutes is ample authority for the introduction in evidence
of the transcript of the General Land Office in the present case.
It reads as follows:
"Copies of any records, books, or papers, in the General Land
Office, authenticated by the seal and certified by the Commissioner
thereof, or, when his office is vacant, by the principal clerk,
shall be evidence equally with the originals thereof. And literal
exemplifications of any such records shall be held, when so
introduced in evidence, to be of the same validity as if the names
of the officers signing and countersigning the same had been fully
inserted in such record."
There is therefore no error in the admission of this transcript
in evidence.
As regards its effect upon the rights of the parties, it seems
to us it shows that, under an act of Congress which authorized it
to be done, Uthe, by directing his land warrant to be located upon
this land and delivering up the warrant and by the proceedings of
the land office upon that location, which resulted in issuing a
patent to him for the land, had acquired an equitable title to the
land, or what may be called a vested interest in it, prior to the
passage of the Swamp Land Act by Congress. He had done what by the
act of Congress of 1847 entitled him to the land on which his
warrant was located. He had delivered up the land warrant, the
evidence of his claim against the government. He had received in
exchange for it the certificate of the receiver and register of the
land office, and these entitled him to a patent after such delay as
was necessary to ascertain the fact that the land had been granted
to no one else, and that all his proceedings were regular, which
facts were to be determined by the Commissioner of the General Land
Office and which were determined in his favor. He had paid for this
land. He had paid by the delivering up and cancellation of his land
warrant. He had received the certificate of the register and
receiver of the land office at Chicago, which, by the laws of
nearly all the western states, have been made equivalent to a title
to the land in actions of ejectment,
Page 133 U. S. 659
though the strict legal title remained in the United States at
the date of the passage of the Swamp Land Act.
Are we to suppose that Congress intended to give to the State of
Illinois the land which it had already, by a contract for which
value was received, promised to convey to Uthe? As the grant to the
states of the swamp land within their jurisdiction was a gratuity,
although accompanied with a trust for the reclamation of said land,
it is not easily to be supposed that Congress intended to be thus
generous at the expense of parties who had vested rights in any of
the lands so donated, derived from the United States. It would be a
matter of considerable doubt whether such an inference, that
Congress intentionally violated its contract, would be indulged if
there were no words of reservation in the statute. But when we find
the broad declaration made that the grant only includes those swamp
and overflowed lands made unfit thereby for cultivation, which
shall remain unsold at the passage of the act, we do not have much
difficulty in holding that this land was not unsold within the
meaning of the statute. It is true that in a technical sense, and
where a due regard to the intention of the parties using the word
"sold" is had, it may mean a transfer of the title of property for
a money consideration. Yet it has other meanings which would
include the present transaction, when it is obvious that such was
the intent of the party using the phrase. We cannot doubt that the
delivery by Uthe of his land warrant to the proper officers of the
government, with a direction that it be located on this land, and
the paper which they issued to him, showing that he had thereby
acquired the right to a patent for the land, constituted a sale
within the meaning of the act of Congress granting the swamp lands
to the states. The case of
State v. McFarland,
110 U. S. 471, it
is true, gives a different construction to the word "sale" in an
act of Congress concerning certain sales of public lands. But the
intent of Congress in that case was relied on as indicating that
the word "sale," as applied to a disposal of the public lands by
the government, was limited to sales for cash. The following
language, used in the opinion in that case, indicates this very
clearly:
Page 133 U. S. 660
"When each of these acts speaks of lands 'sold by Congress,'
'five percent of the net proceeds' of which shall be reserved and
be 'disbursed' or 'appropriated' for the benefit of the states in
which the land lies, it evidently has in view sales in the ordinary
sense, from which the United States receive proceeds in the shape
of money payable into the Treasury, out of which the five percent
may be reserved and paid to the state, and does not intend to
include lands promised and granted by the United States as a reward
for military service, for which nothing is received into the
treasury."
In the present case, the act which we are now construing does
not contemplate the receipt of any money into the Treasury of the
United States, nor the payment of any money out of it, in regard to
these swamp lands. We feel at liberty, therefore, to construe the
statute as intending to exclude from the grant all the swamp and
overflowed lands for which it had, by contract, given a vested
right, for a valuable consideration, to individuals before the
passage of that act. The decision of the Supreme Court of Illinois,
which affirmed the action of the lower court, founded on this
principle, is sound in regard to the questions which we have power
to review, and its judgment is therefore
Affirmed.