
    Wm. R McKean v. Crawford, Swifle, et al.
    1. Preemptou — Title of. The inchoate rights of a pveemptor of a portion of the public lands, who proves úp his claim thereto, and enters the land, ripen into a perfect title to such land instantly on such entry; and he may sell and convey said lands, as an absolute owner thereof, before a patent is issued to him therefor.
    2. Preemption Law — Construction of §12 of Act of 1841. The prohibition contained in the twelfth section of the preemption act of 1841, (5 U. S. St. at Large, 456,) wasj, intended to prevent the assignment of the right of preemption, prior to the time of the entry and purchase of the land to which such right appertains, and the transfer of the certificate of purchase, so as to permit the assignee thereof to receive a patent in his own name.
    8. -Hight of Preemption Purchaser to sell. The right to transfer his land, is complete in the preemptor from the date of his entry and purchase thereof, and the receipt of the usual certificate therefor; and if he exercise such right before a patent has issued to himself, such patent inures to the benefit of his grantee.
    
      Error from Linn District Court.
    
    Action by plaintiff in error against Geo. A. Crawford, John J. Swifle, Amelia A. Swifle, and Anna R Massey, as defendants, to vacate and annul certain deeds of conveyance, and compel defendants to convey to plaintiff Wm. JR. MeKean, as trustee for himself and others, certain lands in Linn county. The petition alleges that plaintiff McKean, and nine other persons, in 1857, associated themselves together and organized the Montgomery Town Company, and laid out a town on the lands in controversy; that the plaintiff was elected president of said company; that the defendant Orawford was appointed attorney of and for said company; that defendant John J. Swifle was a preemption claimant of the said lands; that said Swifle, in company with plaintiff MeKean, and defendant Crawford, went to the local land office, on the 26th of July 1859, proved up his preemption right, and entered said lands in his own name, receiving from the register and receiver the usual “ duplicate receipt” issued by them on purchase of government lands; that thereupon, on the same day, said Swifle sold and conveyed said lands to the plaintiff McKean, as President of the Montgomery Town Company; that said Swifle, as part of his contract of sale obligated himself to execute to the plaintiff (within three days thereafter,) another deed of said lands, in ■ which his wife, the defendant Amelia A. Swifle, should join as grantor; that the defendant Crawford, as attorney for said Town Company, was to obtain such second deed, and cause the same to be recorded; that plaintiff returned to Indiana, where he resided; that Crawford and Swifle returned to Linn county; that no second deed was executed, and no conveyance made by said Amelia, to the plaintiff, of her interest in said lands; that on the 11th of August 1859, defendants John J. Swifle and Amelia, his wife,' conveyed said lands by deed of warranty to defendant Anna JR. Massey; that on the 27th of August,' 1859, said Anna E. Massey conveyed all of said lands to the defendant Crawford, who, on the 24th of January, 1860, reconveyed to said Anna B. Massey an undivided half of said lands. The petition charged that all the grantees purchased with full knowledge of the plaintiff’s purchase and deed from J olm J. Swifle, and of all of plaintiff’s equities in the premises. All the deeds mentioned wei’e duly recorded.
    The answer contained a general denial; alleged that defendants were innocent purchasers for value; and for a further defense, alleged, that defendants Geo. A. Crawford and Anna E. Massey, on the 6th of August, 1859, commenced an action in the Linn District Court, as plaintiffs, against said Wm. E. McKean, and those associated with him as the Montgomery Town Company, as defendants, to set aside and vacate said deed so as aforesaid executed by said John J. Swifle to said McKean, as president, etc., “in which action it was, on the 28th of “ September, 1860, duly adjudged and decreed by said “ district court, that the said conveyance from said Swifle “ to said McKean be set aside and held for naught, and “ declared to be absolutely null and void, and of no force “ or effect in law — which said judgment and decree “ remains in full force and effect.” The plaintiff’s reply was a general denial.
    This action was commenced in November, 1860, and continued from term to term, until March, 1866, when it was referred by consent of parties, “ as to all the issues “therein, to Nelson Cobb, Eeferee, for trial; files and “■original papers to be transmitted to said referee for that “ purpose, and either party may take the deposition of “ any witness to be used on the trial, without regard to “ his residence, upon the like notice required in other “ cases.” Tbe referee made bis report to tbe district court at tbe November Term 1869. No bill of exceptions was settled before tbe referee. No part of tbe testimony is preserved, or returned, and no record of tbe proceeding or trial, except tbe statement in tbe report, that “tbe cause was continued from time to time from May 25, 1866, until February 12, 1869, when it was submitted upon tbe evidence and written arguments of counsel.” Tbe referee reports tbe “ facts in tbe cause,” in detail, as found by bim, whereby it appears that all tbe averments in tbe plaintiff’s petition were true. (No reference is made to tbe answer of tbe defendants, nor to tbe “judgment and decree” pleaded in said answer.) Tbe referee, as conclusion of law, found as follows:
    “ And I find, as matter of law, that said deed of John J. Swifle to tbe plaintiff, having been executed and delivered before the patent for said,' land was issued from the United States to said John J. Swifle, is, for that reason, void; and tbe plaintiff* for that reason cannot recover, and tbe defendants are entitled to judgment for costs.”
    Tbe district court overruled plaintiff’s»motions to set 'aside tbe conclusion of law, and for judgment non obstante, upon tbe facts found by the referee, and gave judgment confirming said report, and in favor of tbe defendants for costs. Tbe plaintiff excepted, and brings tbe case here on error.
    
      Wilson Shannon, for plaintiff in error:
    Tbe referee’s “ conclusion of law,” upon tbe facts of tbe case, as found by him, was wrong, and the court below erred in overruling tbe motion to set such finding aside. Tbe reason assigned by the referee, (and followed by tbe court,) for bolding tbe deed from Swifle to McKean to be void, is not good. The precise question presented by tbe record in this case is fully and elaborately considered by the court in Camp. v. Smith, 2 Minn., 155 to 175. See also Dillingham v. Fisher, 5 Wis., 475 to 482; Morgan v. Curtenius, 4 McLean, 366.
    A party who has preempted land and paid for it, and received the usual certificate of purchase, is the owner of the land. Carroll v. Safford, 3 Howard, 460; same case, 15 Curtis, 511.
    The judgment should be reversed, and a special mandate sent, (§559, civil code, 1868,) to the district court, directing it to render such judgment in the premises as it should have rendered .on the facts found by the referee.
    
      Higgs, Nevison Foote, for defendants in error :
    1. Defendant Amelia A. Swifle was not a party to the contract between plaintiff and her husband; she made no deed to plaintiff, and did not agree to join in any such conveyance. As against her, plaintiff is not entitled to the relief demanded in his petition.
    2. There was jio error in the refusal to set aside the referee’s conclusion of law. Section 12 of act of Sept. 4, 1841, provides that, “ all assignments and transfers of the right hereby secured, prior to the issuing of the patent, shall be null and void.” Aud § 13 of the same act requires the preemptor to swear, before being entitled to the benefits of the act, that he has not made any agreement by which the title which he might acquire from the government should inure to the benefit of any person except himself. The object of the law was to prevent any person from preempting land for the benefit of speculators. Marks v. Dickson, 20 How., 501.
    From the plaintiff’s own showing it is clear that there was an understanding between him and Swifle, before the entry; and tbat tbe land was entered for McKean’s benefit, and for tbe purpose of speculation.
   Tbe opinion of tbe court was delivered by

Sarford, J.:

Tbis was a proceeding in error brought to reverse tbe judgment of tbe district court, rendered upon the report of a referee, to whom all of tbe issues in tbe case below, both of fact and of law, were submitted for decision. No exceptions were taken to the findings of fact in said report; but to tbe conclusion of law, as found by the referee, objection was made by the plaintiff, and such objection was beard, upon a motion to set aside tbe report so far as it related to tbe said conclusion of law. But the court refused tbe motion to set aside, and proceeded to render judgment in accordance with tbe said finding of law by tbe referee; whereupon tbe plaintiff duly excepted.

By reference to tbe facts as found it will, among other things, be seen tbat John J. Swifie, one of the defendants, here and-below, preempted the land which was tbe subject of tbe action, on tbe 26th day of July, 1859; tbat after be had so preempted tbe land, and bad paid for tbe same, be received from tbe proper officers tbe usual certificate of entry; tbat thereupon, and upon tbe same day be executed and delivered to tbe plaintiff, as president, etc., a deed of tbe same land, with tbe usual covenants, and received a valuable consideration therefor. But bis wife did not join in said deed. Upon these facts tbe conclusion of law was based, and was as follows, to-wit: “ And I find as matter of law, that said deed of “John J. Swifie to tbe plaintiff having been executed “ and delivered before tbe patent for said land was issued “ from tbe United States to said John J. Swifie, is, for that “ reason, void; and the plaintiff, for that reason, cannot “ recover, and the defendants are entitled to judgment “ for costs.”

Here then, is to be found the all-important, and almost the only question, which is raised in this case : Was the deed of John J. Swifle to the plaintiff, void, and for the reason stated ? The claim or assumption that the deed was so void is based upon the construction which was given to the twelfth section of the preemption act of Sept. 4, 1841, (5 U. S. St. at Large, 456,) by the referee and the court below. Said section is 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 lie, 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.”

3. Preemptor may Intry.nandbe-1 fore patent is-6Ue8’ — Patent issues to preemptor lor gmntee.oí his We do not think that the last clause of this section sustains the position assumed. The right here mentioned, as being secured by the act of which this section is a part, is the right of preemption. Such right is defined to be, the right “which a person, who has complied with certain requirements ot the law, has, to purchase a portion of the public lands at the minimum price, to the exclusion of all others. It is wholly a creature of the statute, and is exercised and exhausted as soon as the purchase and entry are made.” 2 Minn., 168. If these views be correct as to what the (3xpression; “ right hereby seóured,” as used in said section twelve, relates, and as to the meaning of the term “ preemption,” it would seem to follow, that it is only of such right of preemption., that an assignment or transfer, prior to the issuance of the patent, is prohibited; and that upon the exercise of such right by the purchase and entry of the land, which has been made the subject thereof, there would be nothing substantial upon which the prohibition could act. It is true, that such prohibition may be held to operate so as to prevent the assignment and transfer of the preemptor’s certificate of purchase from being made in such a way as to enable the assignee to receive a patent for the land covered by it, in his own name; but this is all that can be claimed for it. There are. good and no doubt sufficient reasons for saying that the’pi’ohibition reaches to this extent, though it does not seem important that, they should be given here. But to say that, because the assignment of a preemption certificate will not be sufficient to authorize and cause the patent which is supposed to follow it, to be issued in the name of the J assignee, the preemptor cannot dispose of his purchase in any other way, or at all, is, to our minds, reaching a conclusion which does not follow, and which has no sufficient premises .upon which to rest. But, to return to the line of argument above suggested, it is to be observed, that, from the time of the preemption, and payment of the price of the land, the rights and relations of the preemptor are changed. He has now become a purchaser. Relative to this point, the same Judge above quoted from, remarks that, “ After the entry, the rights belonging to the preemptor, as to the land, are those acquired by reason of his having purchased a portion of the public land, and are not different from those of other purchasers.” By reason of his compliance with all of the requirements of the law in respect of his preemption, he was entitled to the exclusive right to purchase a particular portion of the public domain; and having paid therefor, he has obtained the same legal title or right to his land as such other purchasers have to theirs; and he cannot be deprived of such right, nor the benefits to be derived therefrom. As a matter of course, this conclusion is reached upon the presumption that every successive step in his proceedings has been free from fault or fraud; and this is implied in the statement made. It is further to be observed in this connection, that when the preemptor has properly and honestly “ proved up,” as it is called, and has paid for his land, which he must do on receiving his certificate of purchase, he has done all that the law requires of him, or any other purchaser, and indeed all that he can do in the premises. His rights are no longer inchoate, but have become fixed and absolute; and it only remains for the government, through its proper officers to furnish him with the verification of his title, by the issuance to him of the patent. To the preemptor himself this, it seems, must x x 7 go ; but in case of a previous sale of the land, such patent inures to the benefit of his grantee upon plain and well-established principles. The right which such preemptor has to his patent is full and complete, from the date of the purchase, although as a matter of fact, the receiving of it may be, and often is, for a long time delayed. But this fact cannot opex’ate to his detriment, and it ought not. He already has, or may have, all of the elements of a perfect title as defined by the books, to-wit, the actual possession — the right of possession, by virtue of having complied with the law — and the right of property, by reason of having purchased and paid the consideration for his land. If this be true, it is surely in vain to contend against the proposition sought to be established in this case. But a further argument is to be drawn from the language which has been used in the section referred to. The word land is not used at all, nór any corresponding term ; and it seems reasonable to suppose that if a sale of the “ land,” after the right ■spoken of had been exercised, had been intended to be prohibited, such intention would have been expressed in the clearest and most unmistakable terms. This certainly is not the case here. Another argument is to be derived from the fact, that in many of the states the same view as above expressed has been recognized, and a policy in harmony therewith has been adopted.

But it is perhaps unnecessary to pursue the subject further, as in our opinion enough has already been advanced, to show sufficient grounds upon which to base our conclusions. ¥e shall therefore hold that the prohibition referred .to only prevents the assignment and transfer of the right of preemption, prior to an entry of the land preempted, and the issuing of a patent to the assignee in his own name, in case of a sale of such land; and that the right to sell the land so preempted, or his interest therein, rests with the preemptor from the date of entry and purchase. 2 Minn., 155; 5 Wis., 475.

The judgment heretofore rendered herein is reversed, and the case remanded to the district court, with instructions to dismiss the action as to Amelia A. Swifle so that her rights may be saved, and to entey judgment against the rest of the defendants, upon the facts found by the referee, and in accordance with the views expressed in this opinion.

All the Justices concurring.  