1. When the grantee in a deed is described in a way which is a
proper enough description of an incorporated company, capable of
holding land, as
ex. gr., "The Sulphur Springs Land
Company," the court, in the absence of any proof whatever to the
contrary, will presume that the company was capable in law to take
a conveyance of real estate.
2. A grantor not having perfect title who conveys for full value
is estopped, both himself and others claiming by subsequent grant
from him, against denying title, a perfect title afterwards coming
to him.
3. Under the 12th section of the Act of September, 1841, "to
appropriate the proceeds of the sales of public lands and to grant
preemption rights" -- which section, after prescribing the manner
in which the proof of settlement and improvements shall be made
before the land is entered, has a provision that "all assignments
and transfers of the rights hereby secured, prior to the issuing of
the patent, shall be null and void" -- a preemptor who has entered
the land, and who at the time is the owner in good faith and has
done nothing inconsistent
Page 80 U. S. 292
with the provisions of the law on the subject, may sell even
though he has not yet obtained a patent. The disability extends
only to the assignment of the preemption right.
An act of Congress entitled "An Act to appropriate the proceeds
of the sales of the public lands and to grant preemption rights,"
approved September 4, 1841, after prescribing the manner in which
the proof of settlement and improvement shall be made before the
land is entered, has this proviso: "and all assignments and
transfers of the right hereby secured prior to the issuing of the
patent shall be null and void."
Under and by virtue of this act, one Fraily, on the 3d of
September, 1857, entered a quarter-section of land in Nebraska, at
the land office for the Omaha Land District, with the register
thereof.
On the same 3d of September, 1857 -- no letters patent having as
yet issued to him -- in consideration of $36,000, as appeared on
the face of the deed, he conveyed by a warrantee deed the premises
to "The Sulphur Springs Land Company," the company being not
otherwise described in the instrument and there being nothing in
the instrument or in other proof to show whether the said grantee
was a corporation and capable of taking land or an unincorporated
company.
On the 1st of May, 1860 -- more than two years after the date of
the deed above mentioned -- Fraily made another deed for the sum,
as appeared by the instrument, of $6,000 to a certain Myers.
In this state of things, Myers sued Croft, who was in under the
company, in ejectment to try the title to the land. And the deed to
"The Sulphur Springs Land Company" being in evidence on the part of
the defendant, the plaintiff moved the court to rule it from the
jury for the reasons:
1st. That he had not shown that the Sulphur Springs Land Company
was an organization capable of receiving the conveyance of land,
and
Page 80 U. S. 293
2d. That under the provisions of the act of Congress already
quoted, the deed was void.
The court overruled the motion, charging contrariwise, that the
deed was valid and passed the title to the premises. To this ruling
and charge the plaintiff excepted, and judgment having been given
for the defendant the case was now here.
Page 80 U. S. 295
MR. JUSTICE DAVIS delivered the opinion of the Court.
In relation to the first objection -- that the Sulphur Springs
Land Company was not a competent grantee to receive the title -- it
is sufficient to say, in the absence of any proof whatever on the
subject, that it will be presumed the land company was capable in
law to take a conveyance of real estate. Besides, neither Fraily,
who made the deed, nor Myers, who claims under him, is in a
position to question the capacity of the company to take the title
after it has paid to Fraily full value for the property. [
Footnote 1]
The other objection is of a more serious character, and depends
for its solution upon the construction to be given the last clause
of the 12th section of the Act of Congress of September 4, 1841.
The act itself is one of a series of preemption laws conferring
upon the actual settler upon a quarter section of public land the
privilege (enjoyed by no one else) of purchasing it on complying
with certain prescribed conditions. It had been the well defined
policy of Congress in passing these laws not to allow their benefit
to enure to the profit of land speculators, but this wise policy
was often defeated. Experience had proved that designing persons,
being unable to purchase valuable lands on account of their
withdrawal from sale, would procure middlemen to occupy them
temporarily, with indifferent improvements,
Page 80 U. S. 296
under an agreement to convey them so soon as they were entered
by virtue of their preemption rights. When this was done and the
speculation accomplished, the lands were abandoned.
This was felt to be a serious evil, and Congress, in the law
under consideration, undertook to remedy it by requiring of the
applicant for a preemption, before he was allowed to enter the land
on which he had settled, to swear that he had not contracted it
away, nor settled upon it to sell it on speculation, but in good
faith to appropriate it to his own use. In case of false swearing
the preemptor was subject to a prosecution for perjury and
forfeited the money he had paid for the land, and any grant or
conveyance made by him before the entry was declared null and void,
with an exception in favor of
bona fide purchasers for a
valuable consideration. It is contended by the plaintiff in error
that Congress went further in this direction, and imposed also a
restriction upon the power of alienation after the entry, and the
last clause in the 12th section of the act is cited to support the
position.
This section, after prescribing the manner in which the proof of
settlement and improvement shall be made before the land is
entered, has this proviso: "and all assignments and transfers of
the right hereby secured prior to the issuing of the patent shall
be null and void."
The inquiry is what did the legislature intend by this
prohibition? Did it mean to disqualify the preemptor who had
entered the land from selling it at all until he had obtained his
patent, or did the disability extend only to the assignment of the
preemption right? Looking at the language employed as well as the
policy of Congress on the subject, it would seem that the
interdiction was intended to apply to the right secured by the act,
and did not go further. This was the right to preempt a quarter
section of land by settling upon and improving it, at the minimum
price, no matter what its value might be when the time limited for
perfecting the preemption expired. This right was valuable and,
independently of the legislation of Congress, assignable. [
Footnote 2]
Page 80 U. S. 297
The object of Congress was attained when the preemptor went,
with clean hands, to the land office and proved up his right, and
paid the government for his land. Restriction upon the power of
alienation after this would injure the preemptor, and could serve
no important purpose of public policy. It is well known that
patents do not issue in the usual course of business in the General
Land Office until several years after the certificate of entry is
given, and equally well known that nearly all the valuable lands in
the new states, admitted since 1841, have been taken up under the
preemption laws, and the right to sell them freely exercised after
the claim was proved up, the land paid for, and the certificate of
entry received. In view of these facts, we cannot suppose, in the
absence of an express declaration to that effect, that Congress
intended to tie up these lands in the hands of the original owners
until the government should choose to issue the patent.
If it had been the purpose of Congress to attain the object
contended for, it would have declared the lands themselves
unalienable until the patent was granted. Instead of this, the
legislation was directed against the assignment or transfer of the
right secured by the act, which was the right of preemption,
leaving the preemptor free to sell his land after the entry if at
that time he was, in good faith, the owner of the land, and had
done nothing inconsistent with the provisions of the law on the
subject.
Judgment affirmed.
[
Footnote 1]
Smith v.
Sheeley, 12 Wall. 358.
[
Footnote 2]
Thredgill v.
Pintard, 12 How. 24.
