Attorney Gen. v. Thomas

• Decision Date: 26 February 1875
• Citation: 31 Mich. 365
• Court: Michigan Supreme Court
• Parties: The Attorney General v. Richard S. Thomas and another

31 Mich. 365

The Attorney General v. Richard S. Thomas and another

Supreme Court of Michigan

February 26, 1875

Heard January 26, 1875

Appeal in Chancery from Ingham Circuit.

Decree modified in this regard, with costs of this court to the respondents, and in all other respects affirmed.

Isaac Marston, Attorney General, for complainant.

B. F Spencer, D. C. Holbrook and Ashley Pond, for defendants.

Cooley J. Graves, Ch J., and Campbell, J., Concurred. Christiancy J., did not sit in this case.

OPINION

Cooley J.:

An information was filed in this case to vacate a patent which had been issued to Richard S. Thomas for lands afterwards conveyed by him to the respondent Irvin. The lands were of that class known as "indemnity lands," which had been granted by the general government to the state to indemnify the state for swamp lands to which it was entitled under the legislation of congress, but which had become lost to it in consequence of being taken with script or land warrants issued by federal authority. The lands were not swamp lands in fact, and one question that arises in the case is, whether, before they could be subject to private entry at the state land office, it was necessary they should be offered for sale at public auction. It is not claimed that these were so offered, and it is not denied that the existing legislation made it necessary that swamp lands should be; but it is said none of the statutory provisions relating to public offerings mention the "indemnity lands." On the other hand, the state appears to regard these as taking the place of swamp lands, and as being included by intendment in the general designation of swamp lands in the statutes which provide for the latter being offered and sold. If this view is correct, the lands were not subject to sale by private entry, because they had never been publicly offered; but if it is erroneous, it seems equally clear that the sale was unwarranted, because, if we consider these a separate class of lands, not included in the term "swamp lands," as used in the statute, then there seems to be no statute on the subject which provides for their sale, and legislation would be essential. In any view of the case, the sale to Thomas was void.

Irvin claims to be a bona fide purchaser. To prove this he makes a witness of Thomas, whose testimony shows, beyond a question, that he at least did not buy in good faith; but that with full...