Langdon v. Joy

14 F. Cas. 1109, 4 Dill. 391

• Court: U.S. Circuit Court for the District of Kansas
• Decided: July 1, 1877
• Status: Published

Opinion

DILLON, Circuit Judge

(orally). It is conceded in the argument that if Vaughan had l’emained on the land he would have been entitled to the benefit of the provisions of the treaty in favor of actual settlers. His rights were complete and in full force at the time the treaty of 1866 was ratified and proclaimed. But after this date he sold his improvements and rights in the land to the present plaintiff.

Substantially two objections are made by the defendant to the plaintiff’s right to the land. The one is that Vaughan had no power to sell the improvements to the plaintiff, and that the plaintiff did not, therefore, succeed to his rights in respect thereto. The other is that the decision of the commissioners rejecting the proof offered by the plaintiff is conclusive upon him. The most important question is the first one, for if Vaughan had the power to transfer his rights to the plaintiff, the decision of the commissioners, based upon a mistake of the plaintiff’s legal rights, would not conclude the party affected by it, even if thé secretary of the interior could clothe the commissioners with the power to decide upon the rights of settlers under the 17th article of the treaty. Johnson v. Tously, 13 Wall. [80 U. S.] 72. This case has been repeatedly approved.

If the language of the treaty be observed, it will be seen that it does not require that the improvements should have been made by the person residing on the land at the date of the signing or ratification of the treaty. But what is required is that they shall be owned by the actual occupant, and that such owner shall in person reside on such improvements at the date of the ratification of the treaty. At this date Vaughan was in possession and the owner of his improvements. His rights were then fixed. There is nothing in the treaty that makes it necessary that Vaughan should remain in possession and personally make the proof. If he had died, his heirs or devisees might doubtless, have made the necessary proof, and become entitled to buy. So, also, the actual settler, whose rights were perfect at the ratification of the treaty, may sell and convey his rights to another. It is argued that the reference in the amendment to the treaty to persons entitled to pre-emption laws, incorporates all tne restrictions of those laws into the treaty, including the provision which disables the pre-emptioner from selling and conveying, or contracting to sell and convey, before he receives a patent.

But such was not the purpose of this provision of the treaty. If Vaughan had not possessed the qualifications of a pre-emptor, this might possibly have defeatéd his rights under the treaty; but if he did possess these qualifications at the date of the ratification of the treaty his rights were perfect, he could have bought as soon as the appraisement was made, and there is no public policy, as in the public pre-emption laws, against the alienation of his rights to others.

Under the allegations of the bill, our opinion is that the plaintiff was entitled to make the proof before the commissioners; that their action in rejecting his proof and denying his claim on the ground alleged was illegal, and that if the bill be true, the plaintiff is equitably entitled to the land, and that the defendant holds the legal title in trust for him. Demurrer overruled.

Further construction of the 17th article of the treaty, see Stroud v. Missouri R., Ft. S. & G. R. R. Co. [Case No. 13,547].