Waters v. Bush

42 Iowa 255

• Court: Supreme Court of Iowa
• Decided: December 29, 1875
• Status: Published

Opinion

Beck, J.

In April, 1856, one Kilbourne entered the land at the proper United States land office, by the location thereon of a military boupty land warrant, and received the usual certificate of location. In May (following he sold the land to plaintiff, and transferred to him the certificate of location in due form, but no deed was executed for the land. The patent issued to Kilbourne, the certificate of location and assignment thereof not having been filed in the general land office.

In June, 1861, Van Alst recovered judgment in the District Court of Scott county against Kilbourne, and, in April, 1873, a transcript of the judgment was filed in the office of the clerk of the District Court of Cerro Gordo county. On the 9th of June, 1873, the defendant purchased the land at sheriff’s sale upon this judgment, and received a deed therefor.

i. public cOTtmoSe°nt’ I. The patent issued to Kilbourne vested in him the perfect legal title which related back to the date of the entry of

the land. Heirs of Kline v. Argenbright, 26 Ia., 494. The entry of the land and the issuing of the certificate of location transferred to him, at the time, all the property held by the government in the land, and conferred upon him “ all the equity ” thereto, which was an absolute and unconditional right to the land. “ The government retained only the formal legal title in trust for the purchaser until the patent issued.” Cavender v. Smith, 5 Iowa, 157 (189); s. c., 3 G. Greene, 349.

2_;con_ veyance. II. That a purchaser of public lands from the government, after his purchase, and before a patent is issued, can, by proper assurance, convey the same and transfer his interest therein, cannot be doubted.

3 _._. federal law. III. The laws of the United States control the disposition of the public lands, and the effect to be given instruments issued by the government in the sale of the land, anc[ (¿re rights of parties claiming thereunder. David v. Rickabaugh, 32 Iowa, 541; Irwin v. Marshall, 20 How., 558; Wilcox v. Jackson, 13 Pet., 498.

4___. mil_ warrants^ assignmeiit. IN. Under the Acts of Congress of 22d of March, 1852, and 3d of June, 1858, all valid locations of military bounty land warrants “ are declared to be assignable by f^eec*- or other instrument of writing, made and executed according to such form and pursuant to such regulations as may be prescribed by the commissioner of the land office, so as to vest the assignee with all the rights of the original owner of the * * location.” U. S. Rev. Stat., § 2414.

g__._. lien-V. The abstract shows a sufficient assignment of the certificate of location under the United States statutes. It follows that the assignee, the plaintiff, was vested fully with the property in the land, and clothed with all the rights of the original owner, Kilbourne. The legal title in the United States, before the patent issued and after the assignment of the certificate of location, was held in trust for plaintiff, the assignee of all the rights of Kilbourne. The issuing of the patent to Kilbourne could not divest plaintiff of the rights he acquired under the transfer of the certificate of location.

VI. No question arises in this case under registry laws, as there was no statute requiring the assignee of the certificate of location to record that instrument or the assignment thereof.

We conclude that the record before us shows the title to the land in question vested in plaintiff before the sheriff’s sale to defendant; no title, therefore, passed to defendant by that sale. The doctrines upon which our conclusion is based are supported by the prior decisions of this court in the cases cited.

The judgment of the District Courtis

Aeeirmed.