On the foregoing statement of facts, I should arrange the inhabitants of Beloit, in their contest with Dillingham,---into two classes---those who claim under conveyances from Crane before his Patent issued, forming one class; and those claiming under conveyances from him, after his Patent, forming another.
In the contest with the latter class, both parties claiming under Crane, neither can dispute his title.
2. Greenl. Ev. Sec. 307 & cases cited
2. Carter (Ia). 123
And the title of the inhabitants being the elder is unquestionably the better, unless the deeds are void for vagueness of description.
But a deed for land is never void for vagueness of description, when the land can be identified by anything and every thing referred to on the face of the deed.
McIver vs Walker. 9 Cranch 173 (in
3 Cond. 338 & note at the end of the on)
3 Ark. 18
11 Illinois 318---279
13. Illinois 308---16 Mis. 124.
In this case I have not seen the deeds; but doubtless they mention the town of Beloit, and refer to the recorded Plat. Geography fixes the general locality of Beloit; and living witnesses will prove itsPage 337 more precise location from the first. Also the Plat, to which the deeds refer, connects itself with the known State line on the South, and with the natural boundary of Rock-River on the West. By this unmistakeable boundaries [sic], apply the Plat to the face of the ground and it identifies each lot where the inhabitants claim it to be---locates the lots on the land owned by Crane when he made the deeds, and so passes the titles under and by the deeds.
There being no difficulty in identifying or locating the several lots, the deeds are not void.
I assume that the deeds from Crane to the inhabitants were duly recorded, before the execution of Cranes deed to Cooper, under which latter, Dillingham claims. If so, Dillingham can not set up want of notice to Cooper, first, because the recorded deeds notified him of the Plat, and the Plat notified him of the locality of the ground,---and it is nothing to the point, that the Plat was wanting in legal sufficiency to pass the title of a boat-landing, or other easement, to the public. And secondly, because the actual possession was notice to him as to all the lots actually occupied.
I have no doubt this class can successfully defend against ejectment brought by any one claiming through the deed from Crane to Cooper.
The class who claim under conveyances from Crane before his Patent issued, have to meet some additional questions.
The titles of this class, I think, are also good, in Equity, if not at law, as against the Cooper title. Any one claiming under that title can not, in equity, question the validity of Cranes pre-emption entry---because his own title, equally with ours, stands on that entry. In equal right → better is the condition of him in possession.
The validity of the pre-emption entry being thus out of question, Crane's quit claim deeds to us, gave us the equitable title at least, even granting that the strict legal title did not devolve upon Crane before his Patent issued, and did not inure to us when the Patent did issue.
This, however subject to the question whether our deeds from Crane are or not absolutely void, as being in the teeth of the pre-emption law under which Crane made the entry.
That they were so void, our adversary can urge against us, without, at all, assailing his own title.
The pre-emption Act of Congress, May 29, 1830 was for one year's duration only, and contained a provision that ``all assignments and transfers of the ← right → of pre-emption given by this act, prior to the issuance of patents, shall be null and void'' 1. Land Laws---473.
On the 23. Jany. 1832, and after the above act had expired byPage 338 its own limitation, but while many patents remained unissued upon entries made under the act, congress passed another act, supplementary to the former, providing that persons who had purchased under the former act, ← might → assign and transfer their certificates of purchase, or final receipts, and that patents ← might → issue in the name of such assignee, anything in the former act to the contrary notwithstanding. 1 Land Laws, 492.
July 14---1832. Congress revived the act of May 29, 1830 for a special class of cases. 1 Land Laws, 510.
June 19, 1834. Congress passed another act reviving the act of May 29, 1830 to continue in force for two years from its passage, but being silent as to the supplementary act of Jan. 23, 1832. 1 Land Laws, 525
March 6, 1835. Mr. Attorney General Butler gave an official opinion that the revival of the original law of 1830, by the act of 1834, was to be considered as embracing the provisions ingrafted thereon by the supplementary act of 1832. Land Oppinions 196
June 22, 1838 congress again revived the act of 1830, for two years longer. 1 Land Laws, 574
Under this latter act the pre-emption entry now in question, was made.
If, as decided by the Attorney General, the act of 1834, revived the Supplementary act of 1832, as well as the original of 1830, so did the act of 1838. As to that question there is no difference between the Acts of 1834 and 1838. That the act of 1838 revived the Supplementary act of 1832, has the additional argument in it's favor, of being passed by congress with the supposed knowledge of the constructions the Attorney General had put upon the act of 1834. It is a rule of law that when a statute has been enacted, and has been construed by the courts, and another Legislature, even of a different state, re-enacts, or adopts the old statute, it also adopts the courts construction of it. And this is reasonable. If a Legislature approve a statute, but disapprove a construction which the courts have given it, they will not re-enact the law, without, in some way, protesting against the construction.
So in this case---From 1835, to 1838, pre-emption entries, before patents issued, had constantly been assigned and transferred, under the decision of the Attorney General, and with the approbation of the Land Departments, and congress, when in 1838 it again had the subject in hand, had it not approved the practice, would have expressed its disapproval.
Page 339This being so, Crane's conveyances before his patent, were not void, but valid, at least in equity. And, of this equity, as in the other class of cases, Cooper had full notice.
But in addition to this, the Circuit Court of the United States for the District of Illinois, in the case of Morgan vs. Curtenius et al, 4 McLean 366, fully decided, against the very objection made in this case, that the deed of a pre-emptioner, under the act of 1830, made before his patent issued, was after the patent issued to the pre-emptioner, a valid legal title, against a title derived from the pre-emptioner subsequently to his patent. This is our case precisely---and it is worthy of note that, the decision being made by a court of the U.S. upon laws of the U.S. is of superior authority to decisions made by the State courts, if indeed there were any such to the contrary. The decision is also important, in holding that the title is a legal one; and there is no doubt this is the law in Illinois, and also in Wisconsin, unless, in this particular, the law of Wisconsin is different from ours,---which is not probable.
I therefore think both classes of the inhabitants of Beloit, have a full legal legal [sic] defence against the Cooper title.
The case of Gardner vs Brown et al 2. Wisconsin R. 153, is nothing against this. In that case, the defendants had no deed from Crane or any one else---had never purchased of Crane or any one else. The public had no deed from Crane or any one else. The Plat was legally insufficient to pass the title of the ``Landing'' to the public. The landing was not a necessary easement to the lots afterwards sold by Crane; and the public had never used it as a landing so as to get a ← right → in that way. And if they had, that would have given the defendants no ← right to squat upon it for private use.
The Streets certainly, and perhaps the public square, stand on different ground. The inhabitants are doubly protected as to them. First, because they are necessary and convenient easements to the lots sold by Crane, and so designated by him at the time of selling. Secondly, because the public had used them, with Crane's knowledge and approbation, long enough before his deed to Cooper, to establish a dedication. 8 Wend. 85. 11 do. 487. 11 B. Mon. 155. 12. Ills. 35-60. 13 Ills. 312 [.] 15. Ills. 236. 6 Peters 431. Upon the whole case, as to both classes of the inhabitants of Beloit, I should advise that they pay nothing for the Cooper title; bring no suit of their own; but quietly await the attack of the adversary. If the attack shall ever be made, it will be made at law, and should be defended at law; and if, finally, the interposition of a court of Equity shall become necessary, there will still be time and oppertunity of resorting to it. A. LINCOLN
March 24, 1856