Foster v. Brost , 11 Kan. 350 ( 1873 )

The opinion of the court was delivered by

Valentine, J.:

The petition in the court below shows that the plaintiff Hiram Foster, in February 1871, settled upon and afterward occupied and improved ascertain eighty-acre tract of land situated in the Osage diminished reserve, with the intention of purchasing it from the government of the United States; that afterward one John Brost, one of the defendants in this action, also claimed the right' to purchase said land, and instituted a contest therefor in the proper land-office, which contest was to be heard on the 29th of October 1871; that prior to the hearing of said contest, to-wit, on September 12th 1871, the said Foster and Brost .compromised their matters of difference by agreeing with each other that Foster should purchase the whole of said land from the government and then convey the west-half thereof to Brost, Brost paying therefor fifty dollars; that at the time of said compromise Brost executed a quitclaim deed for said land to Foster; that Foster, relying upon said compromise, did not appear at said land-office at the time said contest was to be heard, but Brost did appear, and then fraudulently, and in violation of his said agreement, purchased the whole of said land from the government; that afterward Brost conveyed said land to his wife, and mortgaged it to one John H. Ellinger, both of whom are defendants in this action, and both of whom had full knowledge of Foster’s rights in the premises. The plaintiff asks to be allowed to pay the defendants the sum of fifty dollars, the entrance fee for the east-half of said land, and then to have a decree in his favor giving to him the east-half of said land. The defendants demurred to this petition on the ground substantially that tbe petition does not state facts sufficient to constitute a cause of action. The court below sustained the demurrer,- and the plaintiff excepted, and now brings the case to this court for review.

Does said petition state facts sufficient to constitute a cause of action? We think it does. The only objection that seems to be urged against it, is, that it shows upon its face that the plaintiff made an illegal contract with reference to said land, and thereby forfeited his right to purchase the same or any part thereof from the government; and we are referred to the act of congress of September 4th 1841, (5 Stat. at Large, 456, §§12, 13,) concerning pre-emption entries, in proof thereof. We think however that said act of congress of September 4th 1841 is not applicable to this case. The plaintiff?s rights, as we think, are not necessarily determined by that act, but are governed by § 12 of the act of congress of July 15th 1870, (16 Stat. at Large, 362.) If we are correct in this, then the plaintiff made no illegal contract or agreement. Under the act of July 15th 1870 the plaintiff had a perfect right, before he purchased his land, to make a contract to sell and convey a portion of the same or all of it, if he so chose, without forfeiting his right to purchase any part thereof from the government. We do not wish however to be understood as deciding that persons cannot pre-empt lands within the said Osage diminished reserve under the act of September 4th 1841. All that we desire to say is, that they are not bound to do so; that if they comply with all the provisions, fulfill all the conditions, and satisfy all the terms of the act of July 15th 1870, regarding settlers purchasing lands from the government, they may purchase their lands under said act, whether they could pre-empt the same under the act of September 4th 1841 or not. But if the act óf September 4th 1841 is applicable to this case, then how did the defendant John Brost, after executing said deed of conveyance for all of said land to the plantiff, purchase the land from the government? Did he commit perjury? If said compromise was not illegal, we suppose it will hardly be claimed that it was so much against public policy that the plaintiff forfeited his right to purchase his land by making the contract. The record does not disclose what the rules or the practice of the land-office were with reference to settlers purchasing lands on the Osage diminished .reserve, from the government. But that makes but little difference; for neither the officers of the local land-offices nor the commissioner of the general land-office, nor even the Secretary of the Interior, have any power to make laws. They are all governed by the laws of the United States made by proper authority, as much as other people are, and are bound to allow settlers to purchase their lands in any manner which the law may prescribe.

The judgment of the court below is reversed, and cause remanded, with the order that said demurrer be overruled.

All the Justices concurring.