Cruise v. Riddle , 21 Ala. 791 ( 1852 )

PHELAN, L

— The act of Congress of 11th of February, 1847, (P. Acts, p. 15) conferring bounty lands on soldiers, after declaring that warrants -may be located on any lands of the United States subject to private entry, contains this proviso ; “ Provided, thar no land warrant issued under the provisions of this act, shall be laid on any lauds of the United States to which there shall be a pre-emption right, or upon which there shall be an actual settlement and cultivation.”

The act of Congress of 4th September, 1841, (U. S. Statutes, vol. 5, p. 455,) the last general law on the subject of pre-emptions previous to the act of 1847 aforesaid, requires, that a person seeking to obtain a pre-emption should be a-citizen of the United States, or one who had declared his intention under the naturalization laws, and who actually lived on and cultivated the land. It required further, that he should not have obtained a pre-emption previously; that he should not be the owner of 320 acres of land in the United States; and that he should not have abandoned his own land to get a pre-emption. He was required to state these several matters under oath, and also, that he had made the settlement bona fide for his own exclusive use and benefit, and not, directly or indirectly, for the benefit of another, under an agreement to sell, or otherwise. And, by the 15 th section of the same act, the settler, and the person intending to settle and improve public land, was required to file with the register a statement of such intention, and pay out the land in twelve months from the filing of such statement, or the land was made subject to entry after that time.

It would hence appear, that there are several classes of persons who may be actual settlers on the public lands and cultivate tbe same, who are not entitled to the right of pre-emption, and who would consequently be liable to lose their improvements by an entry under a regular purchase from the Government. But, does it follow, that these persons are also liable to lose their-settlements by an entry under a bounty land warrant issued under the act of 1847 ?

The words of the act of 11th February, 1847, conferring bounty land certificates'or warrants, expressly restricts them, as we have seen, from being laid on any land subject to a “ pre-emption right, or upon which there shall be an actual settlement and cultivation.” A plain distinction is made, and it is manifest the statute was intended to go beyond pre-emption claimants merely, and to embrace also those who actually settled and cultivated the land, although they might not, under the law, be entitled to a pre-emption. It was the intention of the law-making power evidently, to regard all such as objects of bounty and good will, as well as the soldier in the service, and to say, that the soldier with his bountyland warrant should not oust any actual settler who lived on a piece of public land, even if he were a person not entitled to a preemption. This law, taking its complexion from the spirit of the age and country, regards the actual settler on wild lands less in the light of a trespasser than formerly; and there seems to me to be reason for it.

But admitting that the act of Congress forbids a bounty land warrant to be laid on such a settler, what remedy is provided if this injunction of the statute be disregarded? Can the settler defend against the bounty land claimant holding a certificate of the register of the land office, or a patent? This will depend upon the nature of the interest conferred upon him by the statute in the land he cultivates. The certificate •of the register is a title under which the bounty land claimant must recover in an action of ejectment, unless the settler can show better title in himself or some one else. He has no title himself. It cannot be pretended for a moment, that the act of Congress invests him with any interest in the land, or with anything more than a license to cultivate and occupy it. It may admit of controversy, if it even goes that far. This license, then, conceding it to be such, the Government of the United States may withdraw or revoke at any time; and the grant of a certificate or patent for tbe land to another, by the official agents of the Government, is of itself a revocation of the license to the settler. The settler, then, has no title in himself, and the title of the Government, whose tenant at sufferance he was, is in the bounty land claimant; and consequently, in an action of ejectment, this title must prevail.

Has the settler, then, a privilege or favor granted him by the law of the land, that any bounty land claimant may take away in defiance of the statute ? There is a remedy every way equal in dignity to the right. The right is only a license, and the remedy is, by application to Government to recall the certificate, or refuse the patent, if it shall appear that it was wrongfully obtained. But that must rest with the Government and the department having charge of public lands, to whom the application must be made.

From the view taken of the nature of Cruise’s occupancy, it is needless to consider the question, whether he entered upon this land by contract with Biddle, and was holding under him when he cleared and built houses, or not. The certificate of the register of the land office gave Biddle a title, upon which he was authorized to recover under either aspect of the case; so that there was no error, either in the charge the court gave, or in refusing the charge it was requested by defendant to give.

Before proceeding to enter into the consent rule, the defendant moved to quash and set aside the declaration and notice served upon him, which the court refused. The argument offered here in support of this motion is, that the statute (Clay’s Digest 334, §123) requires, “ that all original process, and all subsequent process thereupon, to bring any person or persons to answer any action,” &c., shall be issued by the clerk of the court; and declares, “ that all "writs or process issued in anj^ other manner may be abated on the plea of the defendant.” This statute was passed in 1807. In 1835 the statute was passed authorizing the “ action of ejectment,” which had been previously abolished. This statute authorized the “action of ejectment,” and of course the mode of proceeding in that action according to the course of the common law. Any other construction would make the latter statute nugatory and unavailing. It authorizes a notice from the plaintiff to bring the defendant into court by necessary implication, just as fully as tbe express authority given by statute to bring a sheriff into court by notice, to answer for a default, authorizes that proceeding. The statute of 1807 does not affect either.

There is no error in the record, and the judgment below is affirmed.