# Walworth v. Kneeland

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United States Supreme Court
56 U.S. 348
Walworth v. Kneeland
THIS case was brought up from the Supreme Court of the State of Wisconsin, by a writ of error issued under the 25th section of the judiciary act.
The case is stated in the opinion of the court.
It was submitted, on a printed brief by Mr. Smith, on behalf of the plaintiff in error, and argued by Mr. Baxter, for the defendants in error.
The counsel for the plaintiff in error made the following points.
1st. The contract in which this suit originated was made in violation of the act of Congress, approved March 3d, 1807, en titled 'An act to prevent settlements being made on lands ceded to the United States, until authorized by law. 2 U.S. Stat. 445.
The first section prohibits the occupation and cultivation of the public lands, under the penalty of forfeiture of all the right and claim of the occupant.
The fourth section provides for the removal of such occupants and their punishment by fine and imprisonment.
At the time all the contracts connected with the land in question, to which Walworth was a party, were made, there was no pre emption law of the United States in force. Every occupant of the public lands was a trespasser and occupied in violation of the act of 3d of March, 1807, unless he had permission pursuant to the provisions of the second section of that act.
2d. The bond of Walworth to Arnold, and the contract in which it originated, were made in violation of the 4th section of the act of Congress, of the 31st of March, 1830. U.S. Stat. vol. 8, p. 278.
3d. These agreements respecting this land between Frisbee and Walworth, Frisbee and Arnold, and Walworth and Arnold, all originated in, and were part of, a combination to hinder and prevent, at first any other person than Frisbee, and after his sale, any other than Walworth from purchasing the land at the public sales of the United States. There was a double combination. Walworth, Arnold, and Frisbee, combined together, and they also combined with and became a part of the general organization of the settlers upon the public lands in the Milwaukie land district, to prevent any one, excepting the actual claimant under the rules of such organization, from purchasing such lands at the public sales.
4th. Frisbee testifies that whether the title was obtained by pre emption or under the claim laws, the title to the land, according to the original contract, was to come to him; that is, he was to purchase direct from the United States, and convey one half to Walworth; and he (Walworth) for that one half was to furnish money to pay for the whole, in addition to the $100 he paid Frisbee at the time of making the original contract. In other words, he was to give something more than the price for which the land should be purchased of the United States.
This contract was clearly within both the spirit and the letter of the act of 31st March, 1830, which declares all such contracts absolutely void.
5th. The contract between Walworth and Arnold, if ever valid, was annulled or rendered impossible to be performed by the act of Congress, passed 18th day of June, 1838, entitled 'An act to grant a quantity of land to the Territory of Wisconsin for the purpose of aiding to open a canal to connect the waters of Lake Michigan with those of Rock River.
The counsel for the defendant in error moved to dismiss the case for want of jurisdiction, and on that motion and on the argument of the case, relied on the following points:
I. Foster, the plaintiff in the court below, purchased from Arnold the land in question, and took the assignment of the title bond executed by Walworth, without any knowledge of, or participation in, the illegality (if any existed) between Frisbee and Walworth. He expended his money in the purchase and improvement of the land, without any design to violate or encourage the violation of law.
He therefore contends that Walworth cannot set up the defence of illegality against him.
1. Because they are not in pari delicto.
2. Because he was able to establish his case as stated in his bill, and claim specific performance of the contract, without relying on the illegal contract alleged by Walworth to exist between Frisbee and Walworth.
On this point the defendant in error will rely on the following cases: Faikney v. Reynous, 4 Burr. 2070; S.C.. 1 W. Blackstone's Rep. 633; Petrie v. Hannay, 3 T. R. 418; Simpson v. Bloss, 7 Taunt. 246; Fivaz v. Nicholls, 2 M. G. & S. 501-52; Eng. Com. Law Rep. 501; Bunn v. Winthrop, 1 Johns. C. R. 337; Ellis v. Nimmo, Lloyd & Goold, 333; 10 Cond. Eng. C. Rep. 533; Lewis v. Davison, 4 Mees. & Wels. 654.
II. This court has not jurisdiction, because the decision of the Supreme Court of Wisconsin does not question the validity of any of the statutes referred to in the assignment of errors, nor has the plaintiff in error set up any right, title, privilege, or exemption under said statutes or any of them.
III. The Supreme Court of Wisconsin has not misconstrued the acts of Congress named in the assignment of errors.
On these points the defendant in error will refer to the acts of Congress and authorities mentioned below.
The Judiciary Act, 1 Stat. at Large, 85, L. & B.'s edition. An act to prevent Settlements, etc. 2 Id. 445. An act for the relief, etc. 4 Id. 391-2. An act to grant, etc., 5 Stat. at Large, 245. An act regulating grants, etc., south of Tennessee, 2 Id. pp. 229-30, §§ 2, 3, 1803. An act supplementary, etc. 2 Id. c. 43, § 5, 1805. An act to authorize the State of Tennessee, etc., 1806, c. 31, § 2, condition and 2d proviso, 2 Id. 383. An act regulating grants of land in Michigan, 1807, c. 34, § 2, p. 438, vol. 2. An act supplemental, etc., 1808, c. 10, § 1, p. 455, vol. 2. 1808, c. 40, § 6, p. 480, an act concerning sales. 1808, c. 67, § 3, p. 503, an act supplemental, etc. Act of 1811, c. 46, § 4, 1st proviso, vol. 2, p. 664, preference given to occupants. 1813, c. 20, § 1, p. 797, preference, in sales in Illinois territory, given to settlers. 1814, c. 61, § 4, p. 126, vol. 3, preemption to settlers in Illinois prior to February 5, 1813. 1815, c. 63, § 3, p. 218, vol. 3. 1816, c. 101, § 1, p. 307, vol. 3. 1816, c. 163, §§ 1, 2, and pp. 330, 331. 1820, c. 86, p. 573. 1826, c. 28, vol. 4, p. 154, pre emptions to settlers in Alabama, Mississippi, and Florida. 1830, c. 208, vol. 4, p. 420. 1834, c. 54, vol. 4, p. 678. 1838, c. 119, vol. 5, p. 251. Piatt v. Oliver and others, 2 McLean, 278; Oliver v. Piatt, 3 How. 410, 411.
Mr. Chief Justice TANEY delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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