Harkness & Wife v. Underhill
66 U.S. 316 (1861)

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U.S. Supreme Court

Harkness & Wife v. Underhill, 66 U.S. 1 Black 316 316 (1861)

Harkness & Wife v. Underhill

66 U.S. (1 Black) 316


1. A fraudulent entry of public land allowed by a register and receiver, upon false proofs of settlement, occupancy, and housekeeping, may be set aside and vacated by the commissioner of the General Land Office.

2. A contract between two persons, neither of them being settlers or housekeepers, that one of them shall enter land for the benefit of both under the preemption laws is a combination to defraud the government, contrary to public policy, illegal, and void.

3. Such a contract will not operate by way of estoppel to prevent one of the parties, his heirs or alienees, from setting up a good legal title subsequently acquired, against the fraudulent title obtained by the other in accordance with the contract.

4. Where a party has had possession of land for fourteen years under a legal title clear and free upon its face, and the land in the meantime has greatly risen in value, a court of equity cannot make a decree which will turn the owner of the legal title out.

James P. Harkness and Maria his wife brought their bill in the Circuit Court of the United States for the Northern District of Illinois, against Isaac Underhill, to compel the defendant to convey to Maria Harkness the west half of the east half of the southeast quarter of section 4 in township 8, range 8, east of the 4th principal meridian, in Peoria County, Illinois. The material facts set forth in the bill are these:

Isaac Waters, the father of Maria Harkness, was a settler and housekeeper on the half-quarter section of land described. As such he was in possession of the whole eighty acres from April 5, 1832, until July 13, 1833, and from the latter date until July 2, 1835, he was in possession of forty acres, the west half, cultivating it and making improvements, which began in April, 1832. On the 24th of November, 1832, he made his affidavit, which was corroborated by that of John G. Trail, that he was a settler and housekeeper on the half-quarter section; which affidavits of himself and Trail he afterwards presented at the land office and applied for the purchase and entry of the land, but failed because the public surveys of that

Page 66 U. S. 317

township had not then been returned. Subsequently to this the surveys were returned, but Waters died without renewing his application. He left a widow and several children. On the 7th of August, 1835, which was after the death of Waters and within one year after the return of the surveys, his widow, on behalf of herself and children, applied for a preemption right upon the proofs which Waters had made in his lifetime. The register and receiver allowed the claim, and the land was thereupon entered by the widow for herself and the heirs-at-law of Waters. The receipt was recorded in the office of the recorder for Peoria County.

The narrative now goes back to certain transactions of Waters with other parties. On the 13th of July, 1833, he made his writing obligatory to Stephen Stillman and William A. Stewart, reciting that Waters and Stillman were common owners of the eighty acres; that Stewart had bought half of Stillman's share; that Stewart should pay $50, one half of the whole purchase money, and Waters should make to Stewart and Stillman a good title for forty acres, the east half of the eighty acres. Stewart conveyed his interest to Francis Church. As to the west half, Waters bound himself on the 2d of July, 1835, to convey that to Moses Pettingal and William Wolcott. They assigned their interest to Aaron Russell who went into possession and made improvements worth $3,000. Russell died in possession in the fall of 1838, leaving no children, but a widow, who retained the possession to the time of her own death in the fall of 1839, when Gale and Cross, administrators of Russell took possession and kept it until they were turned out by force, as will be mentioned hereafter.

In 1836, Stillman, taking advantage of the possession which he had acquired, with Waters' consent, of the east half of the eighty acres, claimed a preemption right in the whole of it. He had previously sold a portion of it to Aquilla Wren. The land office refused to allow him a preemption or to permit him to enter the land, because a preemption for the same land had been already allowed to the heirs of Waters. Stillman died in 1837. The year afterwards, Wren, together with one Frisby, sent an agent to the land office, who got a preemption

Page 66 U. S. 318

right allowed, and an entry made in the name of himself as agent for Stillman's heirs. But this was done without the authority or knowledge of Stillman's heirs, and the purchase money and fees were paid by Frisby and Wren. They also got a patent from the General Land Office at Washington, and turned Russell's administrators Gale and Cross out of possession of the west half by force. In 1841, Wren conveyed the west half of the lot to Isaac Underhill.

After the administrators of Russell had been forcibly detruded from their possession, they brought an action against Waters' representatives on the bond which Waters had given to Pettingal and Wolcott for the title of the west half of the lot, and recovered $3,000. On this judgment execution was issued; the land now in controversy was levied on inter alia, and sold to Charles Balance for $5. Balance conveyed to Maria Harkness, a daughter of Waters, and one of the present plaintiffs The other heirs of Waters also released their respective rights to her.

The bill concludes by praying that Isaac Underhill, the defendant, be decreed to convey the west half of the eighty acres to Maria Harkness, and account to her for the profits he has received.

The defendant's version of the facts as extracted from his answer, and simply stated, is this:

Waters was not a settler and housekeeper on the land. His affidavit to that effect was false, and so was Trail's. He went on the land September 23, 1832, put up a log-pen, without a roof, stayed there one night only, and the next day made his affidavit. That was the only possession he ever had, and the certificate of preemption obtained upon it was fraudulent and void. Defendant knew nothing of the written contract between Waters of the one part, and Stillman and Stewart of the other part, until long after he purchased from Wren, and he denies that the facts recited in that writing are true, or that Stillman got possession of the east half of the lot under that writing; he was in possession before. It is true that Russell made improvements on the west half, but they were made with a full knowledge that Waters' preemption right was contested,

Page 66 U. S. 319

and its validity denied. When defendant made his purchase from Wren, the bond from Waters to Stillman and Stewart, as well as the receiver's certificate and receipt, were recorded in the recorder's office of Peoria county, but he did not know it; he had no actual knowledge of either transaction, and he insists that he is an innocent and bona fide purchaser for a valuable consideration, without notice of any adverse claim whatever. He has made valuable improvements, which the plaintiffs stood by and saw him make for years, without asserting any right of their own; and this, together with the lapse of time, should protect him. He admits that the land was sold by the sheriff at the suit of Russell's administrators, on a judgment against the personal representatives of Waters; but the sheriff's vendee acquired no title, because the title was then not in the heirs of Waters, but in Wren.

The evidence taken in the cause was convincing enough that Waters was not an actual settler and housekeeper on any part of the eighty acres when he made his application for the right of preemption. He was at that time a resident of Peoria, and continued to reside there afterwards. This was the only fact controverted between the parties. The Commissioner of the General Land Office ordered the entry of Waters' heirs to be vacated on the ground of fraud. The principal questions, therefore, which arose on the bill, answer, and evidence, were:

1. Whether Waters' right of preemption could be set aside and the entry of his heirs vacated on the ground that his proofs were insufficient or false.

2. Whether Stillman, and those claiming under him, were estopped by his contract with Waters to take advantage of the unsoundness of Waters' title.

3. Whether Underhill, the defendant, took the legal title which he purchased from Wren discharged of the equities against it in the hands of Stillman; and

4. Whether the lapse of time and the accompanying circumstances were, or were not, a protection to Underhill against the claim of the plaintiffs.

The circuit court decided all the points of fact and law

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against the plaintiffs and dismissed the bill. Thereupon, they took this appeal.

Page 66 U. S. 323

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