O'Brien v. Perry,
66 U.S. 132 (1861)

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O'Brien v. Perry, 66 U.S. 1 Black 132 132 (1861)

O'Brien v. Perry

66 U.S. (1 Black) 132


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

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