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by the enterprise of our citizens. The adventurous pioneer who is found in advance of our settlements, encounters many hardships, and not unfrequently, dangers from savage incursions. He is generally poor, and it is fit that his enterprise should be rewarded, by the privilege of purchasing the favorite spot selected by him, not to exceed one hundred and sixty acres.”
The time fixed by the laws for filing notices of pre-emption claims to unoffered lands, varies in different States and Territories.
In California, a claimant of unsurveyed lands must file with the Register and Receiver of the proper Land Office, a notice of his intention to purchase the specific tract claimed, under the provisions of the pre-emption laws, within three inonths after the return of plats of survey to the land offices. (No. 224.)
In Oregon and Washington Territories, notices must be filed within six months after the survey of the land has been made and returned. (Act 17th July, 1854, sec. 3, No. 244.)
the issui of patents for all grants of land under the authority of the Government of the United States, shall be subject to the supervision and control of the Commissioner of the General Land-Office, under tie direction of the President of the United States.' The necessity of supervision and control,' vested in the Commissioner acting under the direction of the President, is too manifest to require comment, further than to say that the facts found in this record, show, that nothing is more easily done than apparently to establish by ex parte affidavits, cultivation and possession of particular quarter-:ections of land, when the fact is untrue. That the Act of 1836, modifies the powers of Registers and Receivers to the extent of the commisssioner's action in the instances before us, we hold to be true. But if the construction of the Act of 1836, to this effect were doubtful, the practice under it for nearly twenty years, could not be disturbed without manifest impropriety.
• The case relied on of Wilcox v. Jackson, 13 Peters, 498, was an ejectment suit commenced in February, 1836; and as to the acts of the Register and Receiver, in allowing the entry in that case, the commissioner had no power of supervision, such as was given to him by the Act of July 4, 1836, after the cause was in court.
“In the next case, 9 Howard, 333, all the controverted facts on which both sides relied, had transpired and were concluded before the Act of July 4, 1836, was passed : and therefore its construction as regards the commissioner's powers under the Act of 1836, was not involved; whereas, in the case under consideration, the additional proceedings were had before the Register and Receiver in 1837, and were subject to the new powers conferred on the commissioner. In Lytle's case, we declared that the occupant was wrongfully deprived of his lawful right of entry under the pre-emption laws, and the title set up under the selection of the governor of Arkansas, was decreed to Cloyes the claimant, this court holding his claim to the land to have been a legal right, by virtue of the occupancy and cultivation, subject to be defeated only by a failure to perform the conditions of making proof and tendering the purchasemoney. Here the facts were examined to ascertain which party had the better right; and following out that precedent, we must do so here."
The ignorance of the pre-emptioner that the land was reserved, does not prevent the entry from being void.--Kissell v. St. Louis Public Schools, 18 How. 19.
Where a patent for land is issued by the officers of the United States, the presumption is that it is valid, and passes the legal title. But this may be rebutted by proof that the officers had no authority to issue it, on account of the land not being subject to entry and grant.-Winter v. Crommelin, 18 How. 87.
In a case where the Register and Receiver of public lands have been imposed upon by ex parte affidavits, and the patent has been obtained by one having no interest secured to him in virtue of the pre-emption laws, to the destruction of another's right, who had a preference of entry which he preferred and exerted in due form, but which right was defeated by false swearing and fraudulent contrivance, brought about by him to whom the patent was awarded, in such a case the jurisdiction of the courts of justice is not ousted by the regulations of the Commissioner of the General Land Office.-Garland v. Wynn, 20 Howard, 6.
It would be unsafe for the land officers to permit entries and to receive purchasemoneys from persons not claiming pre-emption rights, without first ascertaining whether there is a settler on the land entitled to pre-emption ; but such right is inchoate, and can only become complete by making the proof and payment required hy the act during its continuance, and consequently, will not prevent the emanation of a patent after the act has expired, if these requisites have not been complied with. --(Opinion of Attorney-General, August 23, 1830; vol 2, p. 367.)
In Kansas and Nebraska, within three months after the survey has been made in the field. (Act 22d July, 1854, sec. 12, No. 245.)
In Minnesota, within three months after the survey has been made, and the plats returned. (Act 4th August, 1854, No. 255.)
In New Mexico, within three months after the survey has been made and returned. (Act 22d July, 1854, sec. 7, No. 245.)
Notices of claims on lands which have once been offered at public sale, must be filed within thirty days after the claimant has settled, throughout the United States.
Claimants of unoffered lands, which have been surveyed, must file their notices within three months after settlement, and must make proof and payment before the date fixed in the President's proclamation, for the sale of the body of lands in which their claims may be situated.]
No pre-emption claim set up by any person, will justify the cutting and removing of timber from such lands, until title to the land claimed is acknowledged by the government, or maintained by the judgment of the court.-(Opinion, June 9, 1832; vol. 2, p. 524.)
The assignee of a pre-emption certificate (under Act of 1830,) takes it subject to the equities subsisting between the settler and the United States.-(Opinion, April, 1836; vol. 3, p. 91.)
The legal title is in the United States, until a patent issues; and where the equities are equal, the legal title will prevail.-16.
In cases of doubt, patents may be suspended until the question shall have been determined by a competent tribunal.-(Opinion, April 23, 1836 ; vol. 3, p. 102.)
There is reason to doubt whether a pre-emption to an accumulation of land in the Mississippi can be allowed to exist.-- 1b.
Legal evidence from competent sources, (excluding the oaths of claimants and all interested parties,) is what is intended by the word "proof,” contained in the Act of 29th May, 1830.-(Opinion, June 18, 1836; vol. 3, p. 126.)
The Commissioner of the General Land Office may prescribe the mode and kind of proof; how, and by whom it should be taken; but cannot prescribe anything as proof which is not such in fact, nor any rule as to its weight and force.-16.
Any entry allowed by the Register and Receiver upon the affidavit of the interested party, and only corroborated by facts within their knowledge, is only erroneous and voidable, not void as against the United States.-16.
Settlers or occupants within the meaning of the law of 1832, are those who resided personally on the public land in question, or who occupy and use it. Settlements and occupancy cannot be effected by proxy.-16.
Certain lands having been actually entered under the pre-emption laws, pursuant to instructions sent to the Register and Receiver from the Treasury Department, the case is clearly brought within the terms of the second section of the Act of July 2, 1836, “to confirm the sales of public lands in certain cases ;' and the patent should issue accordingly.-(Opinion, July 6, 1836; vol. 3, p. 139.)
A pre-emptor cannot be undermined by a subsequent fraudulent purchaser.(Opinion, March 29, 1837; vol. 3, p. 182.)
A failure to pay for a pre-emption before a public sale of the lands in which it is situated, forfeits the right, and consequently the right to select eighty acres elsewhere; it may be saved, however, by a tender of payment in due time.-(Opinion, April 27, 1837; vol. 3, p. 211.)
An officer of the army of the United States, in actual service, may have a valid
Circulars to Registers and Receivers of the United States Land Offices.
GENERAL LAND OFFICE,
September 15, 1841. Gentlemen :- Annexed (see No. 48, sections 10 to 15, inclusive,) is a copy of that portion of an act of Congress approved on the fourth instant, entitled “An act to appropriate the proceeds of the sales of the public lands, and to grant pre-emption rights,” which has relation to the subject of pre-emptions. Your attention is directed to the several provisions of that portion of said act, and your observance enjoined of the rules hereinafter stated, as prescribed by the Secretary of the Treasury, in accordance with the 12th section of said act.
pre-emption claim as settler or occupant of public lands, although it may seem to be incompatible with the condition of an officer in actual service.-(Opinion, January 19, 1838; vol. 3, p. 303.)
The right of pre-emption attaches only to such public lands as are subject to the operation of the general land system of the country, and not to those which have, by the Act of Congress, been taken out of the class of public lands and appropriated to specific objects, or reserved for particular purposes, as for the cultivation of the vine and olive.-(Opinion, April 18, 1839; vol. 3, p. 456.)
The permissive possession of twenty-seven years may give the party strong equities, which may be addressed to the legislature; yet the land officers can only be governed by existing acts of Congress.—(Opinion, July 8, 1840; vol. 3, p. 563.)
The right of pre-emption, if otherwise mature, may be allowed to lands reserved from sale, under the supposition that they fell within the limits of the grant in aid of the Milwaukie and Rock River canal, but subsequently found not to be included. -(Opinion, July 25, 1840; vol. 3, p. 577.)
The disallowance of a pre-emption claim, made by an assignee, of a certificate of purchase by the Register and Receiver, who had competent authority to judge of its validity on grounds satisfactory to them, that it was unfounded, is conclusive against the claim.-(Opinion, Oct. 19, 1841; vol. 3, p. 664.)
The acquittal of M‘Donald and Norton for perjury, charged to have been committed in swearing to the affidavit upon which the claim of pre-emption was grounded, is not conclusive upon the United States in the Land Department.–16.
The pre-emption grants give to the pre-emptioner a jus ad rem, but not a jus in re; and such a right, resting in contract, cannot always be carried out by specific performance.--(Opinion, April 29, 1842; vol. 4, p. 23.)
The sales made to pre-emptioners within the admitted or ascertained limits of the Houma grant, are entirely void under the sixth section of the Act of 1811.-(Opinion, Sept. 2, 1842 ; vol. 4, p. 92.)
In the cases of patents issued, there is no remedy except in the courts.--16.
Pre-emptioners under the act for the armed occupation and settlement of the unsettled part of the peninsula of East Florida, approved August 4, 1842, have no right to cut live oak or other timber for any purpose other than to clear, improve, and fence their land, until after the five years' occupation shall have enabled them to acquire a perfect title.—(Opinion, July 16, 1845; vol. 4, p. 405.)
A party, prima facie entitled to pre-emption, should not be precluded from receiving a patent for the land by the mere allegation of his being an alien.-(Opinion, May 27, 1852; vol. 5, p. 551.)
Decisions of Registers and Receivers upon the facts offered to etablish pre-emption rights under the Act of 29th May, 1830, are conclusive.—(Opinion, April 21, 1836; vol. 3, p. 93.)
They act in a judicial capacity in weighing and deciding upon the sufficiency of the evidence offered ; and although they are to observe the rules prescribed by the Commissioner of the land-office, they cannot be compelled to act upon any judgment but their own.-16.
The individual claiming the benefits of said act must be
First. A citizen of the United States, or have filed his declaration of intention to become a citizen.
Second. Either the head of a family, or a widow, or a single man over the age of twenty-one years.
Third. An inhabitant of the tract sought to be entered, upon which, in person, he has made a settlement and erected a dwelling-house* since the 1st of June, 1840, and prior to the time when the land is applied for; which land must, at the date of the settlement, have had the Indian title extinguished and been surveyed by the United States.
* If a suitable house was already on the land, the claimant, according to recent decisions, is not required to erect another.
The issuing of patents, however, depends on the Commissioner, who may suspend them, where the decisions were obtained by fraud; or founded on material errors of fact or law, until the decision of the judiciary or the direction of Congress can be obtained.-(Opinion, April 21, 1836, vol. 3, p. 93.)
A certificate of pre-emption issued on the 1st June, 1840, under a right acquired under the pre-emption law of June 22, 1838, will prevail against a certificate of entry made April 10, 1839. The entry was subject to the condition that there was no pre-emption right to the land, and the pre-emption certificate relates back to June 22, 1838, and is thus the older right.-Pettigrew v. Shirley, 9 Mo. Reps. 675.
A State court will not interfere to set aside decisions of Registers and Receivers in pre-emption claims, under the Acts of 1838 and 1840, unless it be affected with fraud or coupled with a trust. But a State court will protect the rights of a pre-emptor against one claiming under a certificate merely, upon which a patent has not issued. -Lewis v. Lewis, 9 Mo. Reps. 182.
Where A. was entitled to a pre-emption right to certain lands, they could not be entered at private sale by B., and A. having applied to prove his pre-emption right, and being prevented by the officer, under the impression that the land was not subject to pre-emption, and entry of the land by B. while subject to the pre-emption of A. is void, although the pre-emption right was not proved up before the expiration of the law granting such right.-Allison v. Hunter, 9 Mo. Reps. 741.
The decision of the Register and Receiver granting a pre-emption, is conclusive only against the Government, that a right of pre-emption exists in consequence of a certain improvement; it is not conclusive between individuals contesting the right to the land.--Bird v. Ward, 1 Mo. Reps. 398.
A bill setting forth that A. made improvements on a tract of land and sold the same to B., who sold it to C., and that afterwards A. fraudulently obtained a certificate for the pre-emption right, contains equity, and a general demurrer will not lie to it. The equitable right in such case is in C., and a court of equity will compel A. to give up what he has fraudulently obtained.-16.
General Land Office Rulings.-Upon an inquiry recently addressed to this Office it was held as follows:
Where an individual enters land at private entry, which is at the time claimed by pre-emption, he so enters it subject to the pre-emption, and is not entitled to notice of the time when, and place where the claimant by pre-emption makes his proof and payment; but if afterwards, he files in this Office, affidavits going to show fraud on the part of the pre-emptor, or a non-compliance with the law, a reinvestigation will be directed.
That neither the law nor the instructions require that the claimant should be an inhabitant of the tract claimed before the filing of his declaratory statement, and as to the meaning of the word "settler," the opinion of the Attorney-General, John Y. Mason, of the 25th April, 1846, in the case of certain conflicting claims, declared, that “from the moment he, (the claimant,) enters in person on land open to such a claim, (pre-emption,) with the animus manendi, or rather, with the intention of availing himself of the provisions of the Act referred to, (4th September, 1841,) and does any act in execution of that intention, he is a settler. He must afterwards give his notice of intention, inhabit, improve, build his house, and make his proof and pay
A person failing in any one of these requisites can have no claim by virtue of this act.
A person bringing himself within each of the above requirements by proof satisfactory to the Register and Receiver of the land district in which the lands may lie, taken pursuant to the rules hereinafter prescribed, will, after having taken the affidavit required by the act, be entitled to enter, by legal subdivisions, any number of acres not exceeding one hundred and and sixty, or a quarter-section, to include his residence, and he may avail himself of the same at any time prior to the day of the commencement of the public sale, including said tract, where the land has not yet been proclaimed.
Where the land was subject to private entry at the date of the settlement made since 1st of June, 1840, and prior to the passage of this act, and the settler is desirous of securing the same under this act, he must give notice of his intention to purchase the same under its provisions within three months from the passage of the law : that is, before the fourth day of December next.
[Where the land was subject to private entry at the date of the law, and a settlement shall thereafter be made upon such land, or] where the land shall hereafter become subject to private entry, and after that period a settlement shall be made, which the settler is desirous of securing under this act, such notice of his intention must be given within thirty days after the date of such settlement. Such notice, in both [all] cases must be a written one, describing the land settled upon, and declaring the intention of such person to claim the same under the provisions of this act. (See forms A and B, hereto annexed.)
In the first case the proof, affidavit, and payment, must be made within twelve months after the passage of this act; and in the second case, within twelve months after the date of such settlement.
These declaratory statements are to be regularly numbered by the Register in the order of the date of their reception, and entered in a suitable book, columned off, to show the number, date when received, name of the party, and description of the tract claimed ; and monthly abstracts of the
ment within the time stipulated, to perfect his right.”—(Report of Chief Clerk of General Land Office, for January, 1856.)
In the pre-emption case of John Douglass, where the testimony showed, that the pre-emptor, who was the owner of the farm on which he resided, in the same township in which the tract claimed is situated, made a contract for its sale, receiving a portion only of the price, and gave a bond for a deed conditioned to be executed upon the payment, in full, of the price agreed upon, it was held, that the title of the vendee being defeasible by the non-performance of the condition, the fee simple was still in the vendor, and he was therefore such an owner and occupant of real estate as to preclude him from acquiring a right under the Pre-emption Act of 4th September, 1841; decided that the entry should be cancelled, and the purchase-money refunded.-(Report of Chief Clerk of the General Land Office, for July, 1856.)
In the case of German Button, who, on the 17th March last, made a regular application for the south half of the southeast quarter of section 33, township 28, north, range 9, west, Michigan, and paid the purchase-money, it appeared there was some informality or defect in the affidavit. He was allowed to perfect the testimony. This was not accomplished until July 14, 1856, being subsequent to the order for the general withdrawal of lands in that district, which reached the land officers on the 8th of June last. It was held, that the fact of the prior inception of the claim justified the recognition of his right to enter, and it was ordered to permit the entry accordingly.-(Report of the Chief Clerk of the General Land Office, for July, 1856.)