The Act of 1838, 5 Stat. 251, relating to preemption rights,
"Before any person claiming the benefit of this law shall have a
patent for the land which he may claim by having complied with its
provisions, he shall make oath &c., that he entered upon the
land which he claims in his own right, and exclusively for his own
use and benefit and that he has not, directly or indirectly, made
any agreement or contract, in any way or manner, with any person or
person, whatever, by which the title which he might acquire from
the government of the United States should enure to the use and
benefit of anyone except himself or to convey or transfer the said
land or the title which he may acquire to the same to any other
person or persons whatever at any subsequent time."
Where a preemptioner sold his inchoate title, which passed
ultimately into the hands of a trustee, and the trustee loaned
money out of the trust fund to the preemptioner in order to enable
him to pay the government, and the title thus obtained from the
United States was conveyed by the preemptioner to the trustee
without any reference to the trust, and the trustee was ordered by
a state court to hold the property subject to the trust, he cannot
remove the case to this Court by virtue of the twenty-fifth section
of the Judiciary Act.
There is no title, right, privilege, or exemption under an act
of Congress set up by the party and decided against him by the
state court. By his own showing, he has acquired no title from the
The allegation is that a fraud was perpetrated upon the
government, and another meditated upon the cestui que
both of which this Court is called upon to maintain and
The case is dismissed for want of jurisdiction.
The facts in the case are sufficiently set forth in the opinion
of the Court.
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
A motion has been made to dismiss this case for want of
It appears that a man by the name of Gregory had obtained, by
residence on the land mentioned in the proceedings, a right of
preemption under the act of Congress of 1838. But before he paid
the price fixed by the government in such cases or made the entry,
he sold his right to Miller, one of the plaintiffs in error. Miller
afterwards conveyed to a man by the name of Joslyn in secret trust
for himself and subject to his control. Subsequently to this
conveyance, Joslyn, by the direction of Miller, conveyed to Udell,
the other plaintiff in error, in trust to sell to the highest
bidder and apply the proceeds to the payment of the creditors of
Miller pro rata
if they were not sufficient to pay all
Page 48 U. S. 770
Udell accepted the trust, and after having done so made an
agreement with Gregory by which Gregory was to enter the land at
the proper office, at the preemption price, and then convey to
Udell in trust for the benefit of Miller's creditors, reserving a
small portion of the land to Gregory himself. Udell was to furnish
the money to enable Gregory to make the entry.
Under this agreement, Udell executed a release to Gregory of all
his right to the land in order to enable him to make the entry as
preemptioner, and at the same time took from him a note for a
thousand dollars, which was to be given up if Gregory made the
conveyance according to his agreement.
The land was worth a thousand dollars. The government price to
the preemptioner was only two hundred dollars, which sum was
advanced by Udell to Gregory. One hundred and fifty dollars of this
money belonged to the creditors of Miller, and was so applied at
his request and upon his statement that this application would be
for the interest of his creditors. The remaining fifty was advanced
by Udell, to be repaid out of the proceeds of the land, when sold.
But it does not appear that the defendant in error, or indeed any
of Miller's creditors, sanctioned this transaction at the time or
had knowledge of this application of the trust funds.
With the money thus obtained, Gregory made the entry and then
executed a deed to Udell. This deed, upon the face of it, is
absolute, and contains no trust for the creditors.
After having thus obtained a conveyance, Udell refused to
execute the trust, and therefore the defendant in error, as one of
the creditors of Miller, in behalf of himself and the other
creditors, filed a bill in chancery setting out more at large the
facts above stated and praying that the land might be sold for
their benefit in pursuance of the trust.
The plaintiffs in error demurred to the bill, assigning various
causes of demurrer, and, among others, that the transaction with
Gregory, by which Udell obtained a conveyance, was in violation of
the act of 1838.
The chancery court, upon the hearing, decided that the land in
the hands of Udell was chargeable with the trust, and directed it
to be sold and the proceeds to be applied accordingly. This decree
was affirmed in the supreme court of the state, and the present
writ of error has been presented upon that judgment.
It is unnecessary to notice any of the various causes of
demurrer assigned by the plaintiffs in error except that which
relies on the provisions of the act of 1838. For, this being a writ
of error to a state court, we have no right to revise its
Page 48 U. S. 771
decision upon any of the other causes assigned, and the only
question before this Court is whether any title, right, privilege,
or exemption claimed by the plaintiffs in error in the state court
under this act of Congress was drawn in question and decided
They do not claim that Udell obtained a valid title by the entry
made by Gregory, and his subsequent conveyance to Udell. And if
their defense had been placed on that ground, it would not have
given jurisdiction to this Court, because the proceeding to charge
it with a trust created by contract would have been no impeachment
of the grant made by the United States.
They defend themselves upon the ground that the transaction
between them and Gregory by which the entry was made under a
previous contract to convey was a violation of the act of 1838.
This is undoubtedly true, for the act requires the party who claims
the right of preemption by residence to make oath that he has not
contracted to sell or transfer the land to any other person. And he
is not permitted to purchase at the low price at which the person
entitled to preemption is allowed to buy, until this oath is taken
and filed with the register of the land office. And if he swears
falsely, he is liable to an indictment for perjury and forfeits all
title to the land, and deeds made by him convey no title unless
they are made to a bona fide
purchaser without notice.
The plaintiffs in error admit that they participated in the
fraud, and consequently Udell, upon their own showing, has acquired
no right to the land under the act of Congress on which he relies.
They do not claim that he obtained a valid title under the law, but
insist that the transaction was against its policy and in violation
of its principles. What right or privilege does he then claim under
this act of Congress? It is this. He not only admits but insists
that by a fraud upon the government he has obtained a deed to
himself for this land, and that he, being trustee for the creditors
of Miller, used the money which belonged to his cestui que
to accomplish his purposes, and now contends that by
means of this fraud upon the government he has acquired under this
act of Congress a right to perpetrate a fraud also upon his
cestui que trusts.
This in plain words is the amount of his defense, and this is
the right or privilege which he claims under the provisions of the
act of 1838, and calls upon this Court to recognize and maintain.
We shall not comment on such a claim. The writ of error must be
Dismissed for want of jurisdiction.
This cause came on to be heard on the transcript of the
Page 48 U. S. 772
record from the Circuit Court of Winnebago County, State of
Illinois, and was argued by counsel. On consideration whereof it is
now here ordered and adjudged by this Court that this writ of error
be and the same is hereby dismissed for the want of