Dearing v. Cate

Green J.,

delivered the opinion of the court.

This bill is brought for the value of an occupant right of entry of a quarter section of land, in the Ocoee district. The facts are these.. Dearing was entitled to a preference of entry of the land in question, and being absent from home, Shirley, by means of deceptious representations, procured the wife and son of Dearing to assign to him in Dearing’s name the said occupant right; no consideration was paid therefor, and Dearing was gone at the time to Arkansas as the driver of a team in company with the emigrating Indians. Before the time for making occupant entries expired Shirley assigned said right of. occupancy to said Cate upon a contract, that Cate should enter the land and then sell it,- and after retaining the money to be advanced by him in making the entry, the profits were to be divided between Shirley and Cate equally. In pursuance of this contract Cate did enter the land, and has obtained a grant therefor in his own name. Before Cate made said entry, or advanced any money to the state therefor, he was told Dearing would trouble him when he returned home.

The complainant relinquishes his right to have the land decreed to him, and insists only, that he shall have compensation for his preference of entry, which the defendants have obtained without consideration. This was allowed in the chancellor’s decree, deducting the value of the rents which have accrued since Cate obtained a title to the land; during which time it has been occupied by the complainant. We are of opinion the chancellor’s decree is correct.

The preference of entry under the occupant laws, is a valuable right. The lands may be worth much more than the price the government demands; and the excess of value above that price, is the value of the right of entry to which’ the occupant is entitled. The complainant has been deprived of this right by the fraudulent conduct of Shirley; and the defendant Cate was not only sufficiently informed of the manner Shirley obtained this assignment, to put him on inquiry, but he received the assignment from Shirley upon an agreement of partnership in the profits of the land thus fraudulently obtained.

Both these grounds, therefore, prevent Cate from setting up the defence, that he is an innocent purchaser without notice.

Affirm the decree.