Allison v. Halfacre , 11 Iowa 450 ( 1861 )

Lowe, C. J.

No evidence whatever has been certified up with the record in this ease; in the absence of which we must presume that the judgment of the court was a just’ response thereto. Whether the questions of law raised in this court were presented and passed upon by the court below, we have no means of determining from the record. If it should be said that this is a chancery case, and that questions going to the equity of the bill may be insisted upon at the hearing as well as by demurrer, then they should be limited to the facts presented in the petition, and not confounded with those arising upon the evidence.

In the present condition of the record there is” but one question, perhaps, which it would be proper for us to pas3.. upon; and this relates to the alledged invalidity of the acts ; of the Legislature granting pre-emption rights to swamp lands. The point made as we understand it, is, that these-, pre-emption acts were passed anterior to the time when the., swamp lands were patented to the State by the general government, and were on that account an unlawful interference with the primary disposal of the soil by the United States. The objection proceeds upon the idea that the title to these., lands is not vested in the State by the act of Congres3 granting them, but by the subsequent selection and patenting of the same. This is simply a mistake. The act granting,’ the swamp lands operates ex proprio viyore to pass the title ’ at once. The subsequent selection and patenting is required for the purpose of fixing their location and description.

The judgment below is aifirmed.