Morton v. Green

2 Neb. 441

Opinions

Ckoense, J.

This was an action to recover the possession of lands, commonly styled an action of ejectment, and is purely legal in its character. The plaintiffs assert and must maintain a legal title to the lands claimed. Sect. 626, Code of Civil Procedure. By the laws of some States, ejectment may be sustained by proof of an equitable right to the lands, the possession of which is sought-, and an examination of some of the cases urged upon the attention of this Court will show them to have arisen under laws of that kind, and of course they can have no bearing here.

The plaintiffs claim as grantees of one Prey. Prey’s pretended title is from the United States, and is based on his attempt, in the year 1859, to obtain the lands in question by the location of land-warrants thereon. In the month of September of that year, he located his warrants, and 'received the usual certificate from the local land-office at Nebraska City. This was followed by the transmission of patents from the General Land-Office to the Local Office. Before their delivery, how ever, the Commissioner of the General Land-Office at Washington, ascertaining that these lands were saline and not agricultural lands, recalled the patents, and can-celled the location of Prey ; claiming that the lands were not subject to location pr sale, but that they were reserved by the Act of Congress of July 22, 1854.

To show how the defendants, Green & Smith, came into possession, I may remark, that, by the act of Congress admitting Nebraska as a State into the Union, “ all salt springs within said State, not exceeding twelve in number, with six sections of land adjoining, or as contiguous as may be to each, shall be granted to said State for its use, the said lands to be selected by the governor thereof within one year after the admission of the State, and, when so selected, to be used or disposed of on such terms, conditions, and regulations as the legislature shall direct; provided that no salt spring or lands, the right whereof is now vested in any individual or individuals, or which hereafter shall be confirmed or adjudged to any individual or individuals, shall, by this act, be granted to said State.” I may say, in passing, that this proviso has no peculiar application to the lands in question, being such as is usually attached to lands of like kind. Nebraska was admitted in March, 1867. In June of the same year the governor made selection of saline lands, including those in question. This selection was, at the time of the trial, before the land department at Washington for approval. In the mean time the legislature of Nebraska had given authority therefor, and the governor had leased these saline lands to said Green & Smith, who took possession of the same, and whom the State has been let in to defend. Whether the act admitting Nebraska, and the selection of these lands by the governor, gives title to the State without patent or other evidence of title, I will not stop to discuss. The plaintiffs aver that they “are seized in fee of” the lands in dispute. This they must maintain without reference to the strength of defendant’s title.

The highest evidence of plaintiffs’ title 'would be a patent from the United States. This they cannot produce ; and they admit, that, for their failure to show one, they could not hope to succeed were it not for sect. 411 of the Code of Civil Procedure, which is relied on. That section says, “ The usual duplicate receipt of the receiver of any land-office, or, if that be lost or destroyed or beyond the reach of the party, the certificate of such receiver that the books of his office show the sale of a tract of land to a certain individual, is proof of title equivalent to a patent against all but the holder of an actual patent.” But it is answered, the certificate in this case has been cancelled or destroyed by the return of, or offer to return, the warrants, and the cancellation of Prey’s location. To this it is replied, that the commissioner could not, by an ex-parte proceeding, destroy Prey’s right to the land in question; that, admitting that, if these lands were reserved by law, the location was void, yet the commissioner was wrong in his interpretation of the Act of July, 1854.

Upon this branch of the case the argument of counsel on both sides was very able and elaborate ; but in the view I take of the case I shall not follow in the discussion, nor consider the many interesting points debated. It is enough to know that the grantor of the plaintiffs not only never received a patent for these lands, but his right to do has most forcibly been denied by those acting for the United States. While, on the other hand, these lands have been selected under the general grant made by Congress, the State’s lessees have entered upon them, and, from all that appears, are holding them with no suggestion of opposition from the government. What ever grounds Prey or his grantees may have to demand a patent from the government constitute at most an equitable right, which in a proper suit, with proper parties, might be declared. Until they can show this patent, they are not “seized in fee of” the lands in question. When a patent shall have rightfully passed to them, the United-States authorities cannot destroy it. Before it has passed, this State, by its courts or its legislature, is not competent to wrest it from the United States. Congress is given full power to dispose of the public lands of the United States, and to make all needful rules and regulations respecting the same. Sect. 3, Art. IV., U. S. Constitution. Accordingly Congress has, from time to time, passed laws providing for the sale or donation of the public lands; has appointed the officers through or by whom the title shall pass from the government to the grantee, and prescribed the steps to be taken before title shall pass. In the case before us, the first requirement for a valid location of these lands is, that they should be subject to sale or location. The first officers to act upon this question are the officers of the local land-office. They might refuse to permit a location on lands properly subject to it, or allow a location on lands properly reserved. Their action is not conclusive. An appeal is provided to the Commissioner of the General Land-Office from the decision of the local officers. From this officer an appeal can again be taken to the Secretary of the Interior Department. Many mistakes are likely to be committed by these different officers in disposing of the public lands ; but their correction is left with these public officers in the control of their respective departments, and in the discharge of their several duties. But, until the issuance of a patent and the parting with the title by the government, the courts cannot interfere. Litchfield v. The Register and Receiver, 1 Wool worth's Circuit-Court Reports, 308; Brewer v. Kidd, 23 Mich., 440; Marbury v. Madison, 1 Cranch, 137; Kendall v. Stokes, 12 Peters, 608; State of Mississippi v. Johnson, President, 4 Wallace, 475. In the cases of Smiley v. Sampson, and Tousley v. Johnson, reported in 1 Nebraska Reports, this Court sustained suits brought to recover the legal title from those who had wrongfully obtained patents from the government which of right should have been issued to the plaintiffs. We there felt at liberty to review and overrule the decision of the Federal officers in their interpretation or construction of United-States laws ; and we were sustained in the United-States Supreme Court for so doing. But it will be remarked that the Court took no action, nor entertained jurisdiction, until a patent had been issued, and the lands had passed from the United States, and had fallen, in common with all other lands within the State, under State control or jurisdiction.

In Bagnell v. Broderick, 13 Peters, 450, it is said, “ Congress has the sole power to give dignity and effect to titles emanating from the United States; and the whole legislation of the Federal Government in reference to the public lands declares the patent the superior and conclusive evidence of legal title : until it issues, the fee is in the government; by the patent, it passes to the grantee, and he is entitled to recover the possession in ejectment.” As the State cannot compel the surrender by the government of a title, so it cannot, by any law it may pass, declare that to be a title that is not in fact such under the laws and regulations of the United States. Congress has granted a number of salt-springs and a quantity of lands to the State. The governor is selected to designate them. No provision is made for the issuing of patents for them, as under general land-laws. As between the United States and the State of Nebraska, the title to the lands selected may be regarded by both as in the latter. Yet the plaintiffs, with a certificate that may have been unadvisedly issued in violation 'of law, and perhaps fearing to test the strength of their claim by appeal to the highest land-officer, seek to obtain the possession of lands upon a certificate worthless between themselves and the government, because they chance to hold it, and the State has no patents. This is attempting a use of the section of our Code referred to never designed, and one wholly unwarranted. To those familiar with delays attending proceedings in the land department, the purpose of the section is evident. It is quite usual for years to intervene between the purchase of a piece of land and receiving a patent therefor. That it is competent for the State to pass a law which will enable a purchaser to defend his possession of lands purchased from the General Government, and for which he has paid his money and taken his certificate, I will not question. There he holds in harmony with the government, his certificate is in force, and his right is complete, except the possession of the patent, which is sure to follow. The case is entirely different where it appears that a patent is denied, and the very certificate is destined as far as the government is able to do it. It is not the design of this law to enable a party to build up a right on an empty technicality like this, in subversion of well-established rules governing the acquirement of public lands. It applies in cases where the possessor of the certificate holds harmonious relations with' the government.

In Astrom et al. v. Hammond, 3 McLean's C. C., R. 109, a bill was filed to restrain collection of taxes on land for which no patent had yet issued. The Court says, “ Until the patent is issued, the purchaser has not the legal title; but having made his entry of the land, and paid his money for it, the government can no more dispose of the land to another person than if the patent had issued. The final certificate, obtained on the payment of the money, is as binding on the government as the patent. “ To language like this we are pointed, to show, that, being possessed of his certificate, Prey’s right cannot be thus destroyed by the cancellation of his location. Taking the language alone, and as applied to the case there before the Court, it is all very proper ; holding, as the purchaser did no doubt, in harmony with the government, he had every right in and to the land that a patentee would have, and should pay tax accordingly. And further: if the lands were subject to entry, and had been properly entered, with no superior claim ahead of it, the government could not destroy his right to the land, and his claim to have the patent for it; that is, it could not legally do so. But, as will be seen by reference to the cases cited above, although the purchaser may be entitled to a patent, the evidence of legal title, yet he could-not compel its delivery by mandamus, nor enjoin the land-officers from giving the patent to a claimant not legally entitled to it. The purchaser, however clear his right may seem to be, must, when disputed, prosecute his claim through the several branches of the land department; and, if he fails there, he may, after the government has parted with the legal title by issuing a patent to another, proceed against such other person to obtain the legal title.” This rule is well established; and there is nothing in Astrom et al. v. Hammond, or in those cases containing like expressions, which militates against it, or which is authority upon which to predicate the argument, that, because one is entitled to a legal title, he may, therefore, prosecute ejectments without first obtaining it.

The construction I place upon this action will, I think, be seen by a full reading of the section. In case of the certificate being lost, or beyond the reach of the party, it provides that the certificate of the receiver, that the books of his office show the sale of a tract of-land to a certain individual, may be introduced in evidence ; the object evidently being to show, that, as between the purchaser and the United States, the former is rightly in possession, or is entitled to be. If, however, the books of the receiver were produced, or a transcript of them was offered in this case, the reverse of this would be shown. Further support of this view is found in the fact, that this section is standing alone, under a title relating to Evidence, with no other pertaining to public lands or equitable titles. If it had been the design to permit a recovery of the possession of lands upon proof of equitable right, there is no reason why it should be confined to the single case of a holder of a receiver’s certificate.

For want of time, I have not investigated the correctness of the additional ground upon which my associate placed his decision in the District Court, that these lands were reserved, and not subject to sale or location. Neither have I deemed this the proper case in which to enter upon such examination. I choose to place my decision upon the one ground, that, under our statute to maintain ejectment in a case like this, the plaintiff must produce a patent, or show that he holds a final certificate in harmony with the government. If 'the plaintiffs are entitled to a patent, let them first obtain it: then ejectment will be in order. If they are not entitled to one, the Court should not permit them to build up a claim to lands of great value, to which they have no right, upon a simple certificate unlawfully and unadvisedly issued.

Justice Lake concurring in that conclusion, the judgment of the Court below is affirmed.