Bennett v. Farrar , 7 Ill. 598 ( 1845 )

The Opinion of the Court was delivered by

Scates, J.^*

.A demurrer to the complainant’s bill "was sustained, and is the error assigned here. The bill was filed to set aside a certificate of pre-emption granted to the county of Jo Daviess in 1838, by the Commissioners appointed under the Act of Congress of July 2, 1836,- pursuant to the provisions of the Act of the 5th of February, 1829, for lot No. 52, in Galena; and also to compel Sophia Farrar, who had purchased of the county, to convey to him; also, for an account of the rents and profits, See.

A short history of the case will show the equity insisted on in the bill. One John Connelly had resided on and improved the lot at a time to entitle him, his heirs or legal representatives to a pre-emption under the Act of 1829. On the 22d of May, 1829, Connelly had conveyed his interest in the lot to one Amos Farrar. On the 21st of May, 1829, Farrar made a deed of partition and settlement between himself, and one Russell Farnham and one George Davenport, by which he conveyed two undivided thirds of said lot to them. Amos Farrar died in 1831, leaving the defendant, Sophia, his widow, and an infant daughter, since deceased. Farnham also died, leaving an only son. In 1834, proceedings for partition of this lot, amongst other property, were instituted in the Jo Daviess Circuit Court, in which all those interested were parties. An order of sale was made, and Commissioners appointed, who sold the premises to complainant, Bennett, for $1000; of which $100 was paid in hand, and the balance secured by bond and security. Commissioners conveyed to him. Afterwards, in 1828, when the Board of Commissioners sat, under the Act of Congress, to hear and determine conflicting claims to, and grant certificates of pre-emption for lots in Galena, Bennett preferred his claim to a pre-emption for said lot, by virtue of the occupancy and improvement of said Connelly, and as his legal representative by virtue of the purchase of his title. The County Commissioners of Jo Daviess preferred a claim also, upon the ground that Bennett had purchased the same as the agent of the county. The Commissioners decided that the county was entitled to the pre-emption, granted them a certificate, and the land was accordingly entered by and patented to the county by the United States. The county then sold and conveyed to the other defendant, Sophia Farrar.

It is admitted by both parties that Connelly had so occupied the lot as to entitle him, his heirs or legal representatives to a pre-emption for the lot. But it is contended by the plaintiff, that the county is not entitled to a pre-emption under the law, not being within the description of “ person” in the statute; and further, because it is not, and cannot be, the “ legal representative” of Connelly. So far as this last objection goes, it applies equally to the plaintiff, for any thing shown upon the bill. Bouvier includes, under the term “legal representative,” “ heirs, executors, administrators,” &c., but not purchasers. 2 Bouvier’s Law Dic. 357. As to the other branch of the objection, it is well answered by saying, that it was for the judicial determination of the Board of Commissioners to determine, and not a question for this Court. It has been decided that the decision of the Register and Receiver of a land office upon pre-emption claims is a judicial determination, and that no appeal or writ of error lies from it. 13 Peters, 511.

It is well settled, that the decisions of judicial tribunals, unreversed, upon matters within their jurisdiction, are final and conclusive between the parties. 1 Peters, 340. It has also been decided that a decision by a Board of Commissioners to hear and determine a claim, and a certificate of its allowance, is final and conclusive upon the parties; 1 do. 666-8; 2 Public Land Laws, 85, 93, 99, 140; though the Attorney General and the President have given their opinions, that the Patent ought to be withheld, if there were fraud, or other sufficient grounds, until application could be made to the Courts or to Congress for relief. See 2 Land Laws, 85, 92, 93.

The plaintiff’s remedy, therefore, if he had any, against an unjust allowance of the pre-emption to the county, was to have presented his case before the Commissioner of the General Land Office, the Secretary of the Treasury or the President, to have the Patent withheld until he should have made application to the Courts of Justice, on the ground of fraud, or to Congress for relief. He has shown no such case upon the face of his bill, as would authorize this Court to interpose.

A further objection to the bill is, that he does not show that he ever paid the remainder of the purchase money for which he gave his bond in 1834, under the judicial sale. We are of opinion, that the rights set up in the bill, by the plaintiff’s own showing, are res adjudícala, and, therefore, there is no equity in the bill, and the demurrer was well sustained. The allegations of fraud are not sufficient to put the defendant to answer.

Decree affirmed with cost.

Decree affirmed.

* Wilson, C. J., did not sit in this case.