The Lansing state Republican. [volume] (Lansing, Mich.) 1855-1874, 1859-11-15
Swamp Land Decision.


preme Court, rendered last week iE Detroit, We
take from the columns of the Detroit Tribune:
The People er. rel. Cummings, rs. TIE STATE
Treasurer.
The relator, claiming TO be the assignee of a
certificate of purchase OF tract of swamp land
living in Lapeer county issued 10 one Bently, on
the 10th OF March, ls5S, as an adjoining owner
or occupant" state that on the 9th of February,
1859. he offered TO pay TO the State Treasurer
the balance due for principal and interest on the
same. but that the State Treasurer refused TO
receive the amount, for the reason that the
Commissioner of the State Land Office refused
TO treat the certificate as legal.
The relator further showed that by an official
letter. dated July 9Th, ISIS, addressed 10 Bently,
the Commissioner cancelled and anuulei the
certificate, on the ground that in his application
for the land, dated March l7th, ls5o, he had
sworn that he had resided upon the adjoining
land since Dec LIST, 1857. and that lie had sworn
falsely in this particular and had not so resided;
which annument or cancellation is founded upon
sundry atfidavts filed in his office
On the "a of April, 1855, VIM. II. Clark made
an application for the same lands, and on the
9TH of July, 1855 the Commissioner issued TO
him q certificate of purchase thereof.
One question was whether the Commissioner
purchase issued TO Bently.
The statute Il Comp. L., Sec. 249s) provides
that in case OF any sale made 10y mistake, or
not in accordance with law, or obtained by fraud,
the same shall be void, and no certificate of
purchase issued thereon shall be of any effect
but the holder of any such certificate shall be
required 10 surrender the same 10 the COmmis.
sloner, who shall thereupon refund the amount
paid, in like funds received 10y him on such Ger
tifcate." This class is applied to the sales 81.
the swamp lands, by Sec. l. OF the act of SIS,
l.. SIS, p. l15)
Another question was whether, under the 9th
section OF the act of 1855, it was necessary that
a person applying TO enter swamp lands as OWL
ing and occupying lands adjoining should be al
actual resident. The Commissioner, in his
printed Instructions, had required actual resi-
dence as a condition to the right of entry.
The case was argued by +. Romcyn for the
Relstor, and by Attorney General Howard for
the State Treasurer The decision Of the SUI
preme Court was given by Chief Justice Martin,
and is ~ follows:
The late Commissioner Of the Land Office com
| mitted very great error in his construction oi
| the 9th Section OF the act for the sale of swamp
lands, (Sess. l.. 1858, D. l73 in the Instructions
| contained in his circular letter of Feb. 2ith
1858. This section made provision for two di.
| tnct classes of purchasers, viz, settlers aud oc-
cuparts of such lands AT the time of the paSsage
OF the act, who should have been such settler
| thereon on the first of December, 1857, and
owners and occupants of adjoining lands who
were such on said first of December. The Com
missioner appears To have overlooked this dis
] tinctlon between settlers upon the lands and
owners and occupants OF those adjoining, and 10
have required as condition to the right to pur-
/ IL. Il a.. 4
APPARENT is not the requirement of the law H.
the one case residence is requisite, ia the other
is is not, for there may be ownership and occu
pancy without aetna! residence. That there
may be ownership without residence requires n,
demonstration, and occupancy NAV consist o
cultivation and Improvement without actual resi-
| dence, or may be by Il tenant. This error and
the supposition that he had power to aunul the
sale. and convey the land 10 another, with the
first certificate outstanding led the late Commits
| siouer, upon the evidence offered by Clark, Il
aunul the sale To Bcntly, and sell the same land
10 Clark. But We do not conceive thai, be had
the power t. annul the sale unless the certificate
WAS surrendered up. The statute Comp. Law,
Sec. 2i?S) cnacts that in case uf any sale OF
land made toy mistake, or not in accordance with
law, or obtained by fraud the same small bs
void and Tat no certificate of purchase issued
l
any such certificate shall Toe Guircd To surrcn-
der the same to the Comniss oncr. vino sial!
thereupon refund the amount pad, Nc. Thi-
statute is dccIaratory OF the effect oi mistake
lcg aiity fraud; and in this respect contains
no provision novel to the law II also provides
that the certificate shall he required To bc dcliv
cred up To the Commissioner, and the return
upon such delivery of the money paid. The du
" Of requiring the delivery of the certificate /,
undoubtedly devolved upon the Commissioner
and if il shall bc surrendered, hc must rc,un,
the money paid. But neither this statute, MOI
| that which gives the Commissioner the general
charge and supervision of all lands belonging Il
the State Comp. l., See. 3l2o) conftrs upon
him Judicial power to try and determine the va
lidity Of "a sale.
His acts are ministerial: if from any caus,. hc
should discover that a sale had been made by
mistake or fraud, or not in accordance with law
it would be his duty to notify the purchaser o
that fact, and that the law required the scrrcn
dering of his certificate. But he has no power:
conferred to Try and determine a charge of fraud
nor TO exercise any judicial functions respecting
sales made in his Office. II such charge b,
made, the Commissioner, if he deems il worthy
of consideration, may institute legal procccdin g.
To avoid sale the in which the purchaser as wei
"a the State can he heard, and the charge inves
tigated under the sanction OF law. Until the
sale shall be adjudged void for one OF the rea.
ons mentioned in the statute, the Commissioner
has no power to declare it so, and TO sell tho
land 10 another purchaser. Nor has he in any
case, before the certificate is surrendered. 1t i:
not the policy of the State to create conflicting
titles, and no more mi,chievous policy could b,
pursued than that of issuing certificates Of pur
chase for the same land to different persons un
der circumstances Ike those before Us in til.
case.
| Let the - GhdaRtus issue.
COOP TAsTE.-The Richmond Wig Illustrate.