Camp v. Smith

• Decision Date: 01 January 1858
• Parties: GEORGE A. CAMP vs. ROBERT SMITH.
• Court: Minnesota Supreme Court

2 Minn. 155

GEORGE A. CAMPvs.

ROBERT SMITH.

Supreme Court of Minnesota.

Appeal from judgment of district court, Hennepin county.

Points and authorities for the appellant:

1. The act of congress, May 20, 1830, granting pre-emption rights to settlers, makes void all transfers of such rights before the issuance of the patent; therefore, such assignment cannot be given in evidence, in an action to try title brought by the patentee. Cundiff v. Orms, 7 Port. 58. By the act of congress of 1812, and the several acts subsequently passed relating to military bounty lands, the grantees entitled to such lands are prohibited from assigning or transferring any claim thereto until after the issuing the patent therefor. Any assignment of the certificate of location is prohibited until the issuing of the patent; and if priorly made, will be disregarded, and of no effect to the assignee, or to the person to whom it may have been assigned, as conferring any title, or creating any rights. When the party entitled to a patent, before its issue, conveys the lands to another, no title is acquired, and any subsequent conveyance by his grantee, or any subsequent grantee, to a subsequent purchaser, will convey no title to either Nichols v. Nichols, 3 Chandler (Wis.), 189. Under the act of congress of 1830, granting pre-emption of land to settlers, but inhibiting all assignments and transfers of the pre-emption right prior to the issuance of the patent, a power given by a settler to convey land entered under that act, as soon as the patent should issue, is void, and consequently any conveyance under it is void. McElyea v. Hayter, 2 Port. 148. By the act of congress of 1841, persons obtaining rights to land as pre-emptors under its provisions, are prohibited from assigning such rights before a patent has been issued; and such assignments are declared to be null and void. Hence the assignee of an assignee acquires no title.

Points and authorities for respondent:

1. The moment a pre-emptor has complied with the requirements of the act of 1841, and paid the purchase money for the land, his title to the land is perfect, and the delivery of a duplicate certificate of entry and purchase, as well as the patent, are the mere evidences of that title — it being complete without either. Goodlet v. Smithson, 5 Port. 245; 5 U. S. Dig. 667, §§ 60, 61, 64, 65; 6 Port. 84.

2. After the pre-emptor has fully complied with the requirements of the law granting pre-emption rights to settlers upon the public lands, and has paid the purchase money, the title vests in him; and from that moment congress has no further control over it; and the tenure and alienation of the estate are regulated by and subject only to the laws of the state or territory within whose territories it is situated. Morgan v. Curtenius, 4 McLean, 366; Carroll v. Michigan, 3 How. U. S. 441.

3. The sale and conveyance by warranty deed, from Anson Northrup and wife, dated April 28, 1855, the date of the entry, to Isaac Atwater, his heirs and assigns, vested in the vendee a fee simple estate.

4. The sale from Atwater and wife to his vendees, by warranty deed, passed to them an estate in fee simple.

5. That whatever title or estate passed to Isaac Atwater by the deed from Northrup and wife, dated November 13th, 1855, after the actual issuance of the patent by virtue of the covenants of warranty in the former deed of conveyance from Atwater and wife to their vendees, enured to the benefit of the latter by way of estoppel. Somes v. Skinner, 3 Pick. 51, 58; White v. Patten, 24 Pick. 324; Duchess of Kingston's case, 2 Smith's Leading Cas. (5th Am. Ed.) 625; Allen v. Parish, 3 Ohio 118-134.

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J. Parsons and Jno. B. Brisbin, for appellant.

F. R. E. Cornell and D. Cooper, for respondent.

EMMETT, C. J.

It appears by the complaint that on the 28th day of April, A. D. 1855, one Anson Northrup purchased and entered, as a pre-emptor, at the land office at Minneapolis, in this state, lot 10 of sec. 23, town. 29 of range 24, west of the 4th principal meridian, containing 48 10-100 acres; and that afterwards, on the 17th day of July, A. D. 1855, a patent for said lot was duly issued to him. That on the day of the purchase, but after the entry was perfected, the said Northrup and his wife, for a valuable consideration, executed and delivered to Isaac Atwater a deed of general warranty for the land so entered, and that after the patent had issued, said Northrup and wife executed and delivered to said Atwater another deed, bearing date the 26th day of October, A D. 1855, whereby, for the consideration therein mentioned, they remised, released, and quit-claimed, to the said Atwater, his heirs and assigns, all their right, title, and interest in and to said lot. The land has been divided into lots and blocks, and now forms part of the town of Minneapolis. The plaintiff claims title to lot 2 of block 17 of the town of Minneapolis, being a portion of the land so entered through Atwater and his grantees. The complaint sets forth these facts, with the particulars of the plaintiff's chain of title; alleges that the defendant is unlawfully in the possession of said lot 2 of block 17, "claiming title thereto, or some interest therein, or lien thereupon," and unlawfully withholds possession of the same from the plaintiff, and demands that the defendant be adjudged to surrender the possession to the plaintiff, with damages, &c. To this complaint the defendant demurs. The demurrer was overruled by the court, and judgment thereon entered for the plaintiff, and from this judgment the defendant appeals to this court.

The grounds of demurrer, as urged in the argument, are, in substance, that Northrup had no title to the land entered, before the patent issued; that the first deed to Atwater was, therefore, void; that Atwater, having no interest, no estate passed from him to his assignees; and that no estate passed to, or vested in, the grantees of Atwater, by virtue of the deed made by Northrup and wife after the issuing of the patent, because the deed was made in confirmation of Atwater's interest or estate, which was void in law.

Whether the deed first made by Northrup is of any validity, depends upon the interpretation, force, and effect of the last clause of § 12 of the act of congress of September 4, 1841. The section reads as follows: "Sec. 12. And be it further enacted: that, prior to any entries being made under and by virtue of the provisions of this act, proof of the settlement and improvement thereby required, shall be made to the satisfaction of the register and receiver of the land district in which such lands may be, agreeably to such rules as shall be prescribed by the secretary of the treasury, who shall each be entitled to receive fifty cents from each applicant for his services to be rendered as aforesaid; and all assignments and transfers of the right hereby secured, prior to the issuing of the patent, shall be null and void."

We shall be better able to determine the meaning of the clause in question by referring to the legislation of congress on the subject of pre-emption rights, prior to the act of September 4th, 1841. It will not be necessary to go back beyond the act of May 29, 1830. By the terms of that act, every settler or occupant of the public lands, prior to the passage thereof, who was then in possession, and had cultivated any portion of the land in the year 1829, was authorized to enter, at the minimum price, any number of acres, not exceeding one hundred and sixty, provided said lands were not reserved for the United States or either of the several states. Sec. 3 of this act is almost identical with § 12 of the act of September 4, 1841. It is in the words following: "Sec. 3 And be it further enacted, &c.: that prior to any entries being made under the privileges given by this act, proof of settlement or improvement shall be made to the satisfaction of the register and receiver of the land district in which such lands may be, agreeably to the rules to be prescribed by the commissioner of the general land office for that purpose, which register and receiver shall each be entitled to receive fifty cents for his services therein; and that all assignments and transfers of the right of pre-emption given by this act, prior to the issuance of the patent, shall be null and void."

It will be observed that the section just recited makes void all assignments and transfers of "the right of pre-emption given by this act prior," &c., while the act of September 4, 1841, vitiates all assignments and transfers of "the right hereby secured." The language in each is the same, in substance and effect, as the other. If there be a difference, it is in the number only of the words used to express the same idea.

The next act, in order of time, is that of January 23, 1832, which is supplementary to that of May 29, 1830. It consists of the following section only: "Be it enacted, &c.: that from and after the passage of this act, all persons who have purchased under an act entitled `An act to grant pre-emption rights to settlers upon public lands,' approved the twenty-ninth of May, one thousand eight hundred and thirty, may assign and transfer their certificates of purchase, or final receipts, and patents may issue in the name of the assignee, anything in the act aforesaid to the contrary notwithstanding."

The act of May 29, 1830, having expired by limitation, the act of April 5th, 1832, was passed, which gave to all actual settlers, being housekeepers, upon the public lands, the right to pre-empt eighty acres, including their improvements, within six months from that time; and also required them, when they made application to enter, to file an affidavit that they made the entry in their...