St. Paul daily globe., 1885-06-30
IMPORTANT LAND DECISION,

The last number of the Federal Reporter
contains the decision of Judge DEADY,
rendered in the federal district court of Ore.
gon on the first day Of this month, which
has an important bearing on the titles of
pre-empted lands and the power of the gen.
eral government to revoke such titles. Itwas
held by the court, first, that a certificate of
purchase issued in due form, in favor of
pre-emptor, for land subject to entry under
the pre-emption law, cannot be cancelled OF
set aside by the land department for al
legged fraud in obtaining it; but in such case
the government must seek redress in the
courts, where the matter may be heard and
determined according to the law applicable
to the rights of individuals In like circum-
stances; and, second, that purchaser in
good faith. and for valuable consideration,
from pre-emptor of the land included in
the latters certificate of purchase takes the
same purged Of fraud which might have
been committed in obtaining said certifi-'
cate.
The history of the case was as follows:
A man by the name Of WEBB, in August,
1881, settled as pre- -emptor under the
laws of the United States on and i'm
proved certain tract of land in Oregon,
and filed in the local land office at La Grande
his declaratory statement therefor; that
after due publication of notice thereof
WEBB made his final proof of such settle
ment and improvement to the satisfaction
of the receiver and register of said office,
and paid for the land at the rate of $3.50
per acre, for which he received from the
receiver a certificate ''of purchase and entry
of said land, as by law required, (which was
duly recorded in the county clerks office.
Subsequently WEBB sold and.cOnveyed the
same land to another party, and the con-
veyance was duly recorded. In 1888
another settler by the name of EWING en-
tered upon and took possession of the same
tract of land under claim of pre-emption
made in 1876, but which had been forfeited
for want of final proof and payment. A
contest was ordered thereon by the commits
sioner of the general land Office and hear
ing had before the receiver and register,
who thereupon decided that neither
WEBB nor EWING had complied
with the pre-emption law in the
matter of residence, cultivation and i'm
provement, and recommended ''the cancel
lation Of the filings and entries of both of
said parties by the commissioner" WEBB
appealed from said decision to the commits
sioner, who affirmed the same, and from
there took the case to the secretary of the
interior, where WEBB's grantee intervened
for his rights as purchaser and asked that
for tba ha 70 Thn
secretary of the interior denied the applica
ton and, affirming the decision of the COM
missioner, entered an order canceling said
filings and entries and annulling all rights
thereun der Immediately thereafter EWING
entered the same tract as homestead and
has since continued to reside upon it.
The effect of the decision Of the Oregon
district court is to confirm the validity of
the WEBB title. In rendering the decision
the court says: when certificate of
purchase has been issued to pre-e mptor,
and no appeal has been taken from the de-
cision or action of the register and receiver,
the land described in the certificate becomes
the property of the pre-emptor. He
has the equitable title thereto. and has a
right to the legal one as soon as the patent
can issue in the due course of proceeding;
and he can dispose of the same and pass
his interest therein as if the purchase had
been made by private person." In sup
port of this position the court quotes from
the United States supreme court decision in
the case Of CARROLL versus Stafford, in
which Justice MCLEAN, in delivering the
opinion of the court, said: ''When the
land was purchased and paid for it was no
longer the property of the United States,
but of the purchaser. He held it for final
certificate, which could no more be can
celed by the United States than patent. :"
The Oregon court held that ''a certificate of
purchase issued in due form in favor of a
pre-emptor for land subject to entry under
the preemption law cannot be Cancelled or
set aside by the land department for alleged
fraud in obtaining it." And it was further
held that ''the right of a party holding a
certificate of purchase of public land and
that of his grantee is right in and to prop
erty of which neither of them can or ought
to be deprived without due process of law"
POOR MCCULLOUGH.