1. Under the third section of the act of 1832, persons who had
claims of a certain class under France or Spain to land upon which
they were settlers and housekeepers might have a right of
preemption if they would relinquish their claims. A party claimed a
town lot on which he resided, and other lands adjoining. The town
lot was confirmed in 1825, and in 1834 he relinquished his claim
and demanded his preemption of the other lands under the act of
1832.
Held that he was a settler and housekeeper on the
land of which he claimed preemption.
2. But the right of preemption did not depend on actual
residence and housekeeping in the case of a person whose claim
under a Spanish or French grant was still undetermined.
3. Where a person whose right of preemption was founded on his
relinquishment of an undetermined claim under France or Spain has
entered the land according to the act of 1832, and the Land Office
has cancelled his entry and issued a patent to another person for
the same land, the patent and the cancellation of the entry are
both void.
4. In the state courts of Missouri, when a suit at law is
brought by a patentee, the defendant may set up his prior equitable
title as a bar.
The action was brought in the Circuit Court of Washington
County, Missouri, by John O'Brien against Eliza M. Perry and
others. The plaintiff's petition set forth that he was legally
entitled to the possession of the east fractional half of the
southeast fractional quarter of fractional section 15, in township
37 north, of range 2 east, in the County of Washington, Missouri,
containing 58 54/100 acres, into which the defendants unlawfully
entered and held him, the plaintiff, out of possession.
The defendants in their answer deny that the plaintiff is
entitled to the possession of the land, aver their own title, and
give a detailed history of it.
The cause was tried by the court without a jury, and after
Page 66 U. S. 133
the evidence and arguments thereupon were heard, the court found
the facts as stated in the opinion of MR. JUSTICE NELSON, and upon
these facts found, as a conclusion of law, that John Perry, under
whom the defendants claimed, by virtue of his waiver and
relinquishment, was entitled to a preemption for the land in
controversy; that the cancellation of his certificate of entry was
illegal and void, and therefore judgment was given for the
defendants.
The cause went to the Supreme court of the state by appeal,
where it was reviewed and the judgment affirmed, when this writ of
error was sued out by the plaintiff.
Page 66 U. S. 134
MR. JUSTICE NELSON.
This action was brought by the plaintiff, O'Brien, to recover
possession of a part of section fifteen in township thirty-seven.
He claimed title under a patent of the United States, dated May 4,
1854, which was founded upon a preemption certificate under the act
of 1841, dated July 3, 1847. His possession or settlement began in
April the same year.
The title which the defendants set up began as early as 1795,
under Basil Valle, who settled upon the premises, which were
situate at a place called Mine au Breton, in Missouri, and
continued cultivating and improving the same down to the year 1806,
when he sold and conveyed all his interest to John Perry, the
ancestor of the defendants. In 1807, Perry, as assignee of Valle,
presented the claim before the board of commissioners, enlarging it
to six hundred and thirty-nine acres. No decision seems to have
been made upon the claim till the meeting of the board in 1811,
when it was rejected.
In 1825, William and John Perry, who had become the owners of
the claim, had confirmed to them a town lot and out-lot of the
Village of Mine au Breton, lying within and constituting a part of
the original tract of six hundred and thirty-nine acres, under the
act of 1812 and the supplemental act of 1824. The dwelling house of
the Perrys was situate on this village lot.
In 1833, the claim was again presented to the board of
commissioners under the act of 1832 and the supplemental act of
1833, and further proof in support of it produced. No decision was
made by the commissioners.
In August, 1834, John Perry, Jr., who was then the owner,
relinquished all right and title to the claim, by metes and bounds,
including the whole tract of six hundred and thirty-nine acres, to
the United States, and afterwards applied to the register and
receiver to make his entry as purchaser of the tract under
Page 66 U. S. 135
the act of 1832, which was permitted on the 26th of November,
1839, satisfactory proof of possession, inhabitation, and
cultivation having been furnished, and the purchase money paid.
This entry was made under the direction of Whitcomb, the
Commissioner of the Land Office, but, on an appeal to his successor
by adverse claimants, the entry was cancelled on the 5th May, 1843,
three years and a half after Perry's entry, and which decision was
concurred in by the then Secretary of the Treasury.
Subsequently, in 1847, as we have seen, the plaintiff O'Brien
was permitted to make an entry for a part of the same premises, and
in 1854 a patent was issued to him.
Upon this state of the case and condition of the title, the
court below held that, by virtue of the waiver and relinquishment
of his claim under the act of 1832, Perry became thereby entitled
to a preemption of the land relinquished, and that the subsequent
cancellation of his entry by the commissioner was contrary to law
and void.
By the first section of the act of 1832, a board of
commissioners was appointed to examine all unconfirmed claims to
land in the State of Missouri, theretofore filed in the office of a
recorder, founded upon incomplete grants &c., under the
authority of France or Spain, prior to the 10th March, 1804, and to
class the same so as to show, 1 what claims, in their opinion,
would have been confirmed according to the laws, usages, and
customs of the Spanish government and the practice of the Spanish
authorities, if the government under which the claims originated
had continued in Missouri, and, 2 what claims, in their opinion,
are destitute of merit in law or equity under such laws, usages,
and customs, and practice of the Spanish authorities.
The third section provided that from and after the final report
of the board of commissioners, the lands contained in the
second class should be subject to sale as other public
lands, and the lands contained in the
first class should
continue to be reserved from sale as theretofore, until the
decision of Congress upon them, provided that actual settlers,
being housekeepers upon such lands as are rejected, claiming to
hold under such
Page 66 U. S. 136
rejected claim, or such as may waive their grant, shall have the
right of preemption to enter, within the time of the existence of
this act, not exceeding the quantity of their claim, and which in
no case shall exceed six hundred and forty acres, including their
improvements. And it is made the duty of the Secretary of the
Treasury to forward to the several land offices in said state the
manner in which all those who may wish to waive their several
grants or claims, and avail themselves of the right of preemption,
shall renounce or relinquish their said grants.
In the instructions to the board of commissioners by the
Commissioner of the General Land Office, under date of 2 November,
1832, he observes, that this 3d section of the act above recited
provides that actual settlers, being housekeepers at the date of
the act, upon such claims alleged and filed in the mode specified
in the first section as are rejected and who claim to hold under
such rejected claim, and also
that all claimants who may
relinquish to the government claims of the characters
designated in the first section, prior to any decision thereon by
the board, shall have the right of preemption. He also directs that
the recorder furnish to the party relinquishing a certified copy of
his relinquishment, which shall be evidence of his right to the
preemption privilege intended to be conferred by the act. The
Supplementary Act of March 2, 1833, extended the provisions of the
act of 1832 to all claims for donations of land in Missouri held in
virtue of settlement and cultivation. This supplementary act
embraced the class of claims to which the one in question belongs.
As the relinquishment was made by Perry in conformity with the
third section of this act of 1832 and the instructions of the
Secretary of the Treasury, it is difficult to see any well founded
objection to his right of entry of the land as a preemptor, which
was permitted by the register and receiver upon satisfactory proof
of inhabitation and cultivation on the 26th November, 1839. Indeed,
according to the instructions from the Commissioner of the Land
Office, the certified copy of the relinquishment would seem to be
sufficient evidence of the right of preemption, even without
further proof.
Page 66 U. S. 137
But this entry was cancelled on the 5th May, 1843, by directions
of the then Commissioner of the Land Office, and which raises the
principal question in the case. As has already appeared, William
and John Perry, who then owned the claim, had confirmed to them, in
1825, a town-lot and out-lot at the Village of Mine au Breton,
embracing some eight or ten acres, under the act of 1812, and the
supplementary act of 1824, and which were included within this
claim. The dwelling house and out-houses of the Perrys were
situated on this town-lot, and, indeed, had been thus situated
since the purchase from Basil Valle in 1806. The commissioner held
that upon a true construction of the third section of the act of
1832, no claimant was entitled to the right of preemption unless he
was an actual settler, being also a housekeeper, on the land at the
date of the act, and that the condition applied as well to the
party relinquishing his claim to the government as to him whose
claim had been rejected. And as the town-lot, upon which stood the
dwelling house of the Perrys, had been confirmed under the act of
1812, he was of opinion it became thereby separated from the
remaining portion of the claim, and therefore they were not
settlers and housekeepers on the part entered in November, 1839.
And this view being concurred in by the Secretary of the Treasury,
the register and receiver were directed to cancel the entry of the
Perrys.
Now assuming the construction of the third section, as declared
by the Land Commissioner, to be correct, and that the Perrys must
prove they were actual settlers and housekeepers on the land at the
date of the act, we think the conclusion arrived at not at all
warranted. The confirmation of the title to the town-lot in 1812
did not in any just or legal sense affect their claim to the
remaining portion of the land or change the character of the
settlement or inhabitation. For aught that appears, the occupation
and claim continued the same after the confirmation as before,
except that, being secure in the title to the town-lot, they were
concerned only in their future efforts to obtain the title to the
other portion of the land. The act of 1812 was a general act
confirming town-lots, out-lots &c., to the inhabitants of
villages, and the argument would seem
Page 66 U. S. 138
to go the length of requiring the inhabitant to reject the
confirmation of his village lot upon which his dwelling stood or
forfeit his right to a confirmation of the adjoining plantation,
and of holding that his entire claim could not be confirmed in
parts by two different acts.
But the conclusive answer to the objection of the commissioner
is that Perry was an actual settler and housekeeper on the land he
relinquished to the government at the date of the act, as the deed
of relinquishment embraced the village lot and dwelling house, as
well as the other portion of his claim, and although the entry was
permitted only for the portion less the town-lot and out-lot, this
was not the fault of the claimant, but that of the register and
receiver, and cannot be justly used to his prejudice.
We have thus far assumed that the construction of the third
section of the act of 1832 by the commissioner, at the time of the
cancellation of the entry of Perry, was correct, and have
endeavored to show that the conclusion arrived at upon his own
premises was erroneous, and afforded no justification for setting
aside the entry made under the direction of his predecessor.
But this construction differed from the instructions of the
department at the time of the passage of the act, and which were
furnished to the land officers, to guide them in its execution. As
we have already said, that construction dispensed with the
necessity of requiring the claimant to prove that he was an actual
settler and housekeeper on the land in all cases of claims pending
before the board of commissioners and undecided. The rejected
claims were declared to be public lands, from the time of their
rejection by the board; and, of course, no relinquishment was
necessary to vest the title in the government. The claimants were
then in the condition of those who had no claim on the bounty of
the government, except as actual settlers on the land, which
furnished a meritorious ground of right to a preemption. But the
case of claimants whose claims were still under consideration and
undetermined was altogether different. They might still be
confirmed, and in that event the Treasury would derive no benefit
from them.
Page 66 U. S. 139
Congress therefore proposed to this class that if they would
relinquish their claims to the government, they should have the
right to enter the lands at the minimum price in preference to all
others. This was the inducement held out to them to relinquish
their claims. The government had no pecuniary interest, so far as
the preemption right was concerned, after the relinquishment,
whether given to the claimant or to some subsequent settler. The
minimum price was all it could receive for the land. The proposal
was a compromise offered to this class of claimants. Actual
settlement and housekeeping on the land, at the time of the passing
of the act of 1832, were not essential prerequisites of their
claims before the board as Spanish claims; they depended upon the
settlement right, under the act of 1807, and subsequent acts
relating thereto.
Without pursuing this branch of the case further, we are
entirely satisfied that the Commissioner of the Land Office erred
in canceling the entry of Perry, made in 1839, and that it was
contrary to law, and void, as was also the issuing of the patent to
O'Brien, upon his subsequent entry for a part of the same land in
1847. This was so held in
Lyttle v. State of
Arkansas, 9 How. 314, and in
Cunningham
v. Ashley, 14 How. 377;
See also Minter v.
Crommelin, 18 How. 87. It is true, in the first two
cases, bills in equity were filed in the court below by the persons
claiming under the preemption right to set aside the patent in one
of the cases, and a location, which operated to pass the legal
title in the others.
But in the present case, which comes up from a decision in the
Supreme Court of Missouri, though the action was at law by the
patentee to recover the possession, according to the practice of
that court, it is competent for the defendant to set up a prior
equitable title in bar of the suit founded upon the legal title to
the premises in dispute.
Judgment affirmed.