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LINDSEY ET AL. v. HAWES ET AL.

December 1, 1862

LINDSEY ET AL.
v.
HAWES ET AL.



Appeal from the Circuit Court of the United States for the Northern District of Illinois.

The opinion of the court was delivered by: Mr. Justice Millier.

Mr. Grant, of Iowa, for Appellants.

Mr. Scates, of Illinois, for Appellees.

This is an appeal from a decree of the Circuit Court for the Northern District of Illinois, in which the appellants here were complainants there.

The subject of the litigation is the legal title to the southwest part of the northeast fractional quarter of section No. 36, in township No. 18, of range No. 2, west, of the fourth principal meridian, in the county of Rock Island, Illinois. The course of the Mississippi river at this point is almost due west, and that portion of its waters which flows south of the island of Rock Island, divides the northeast quarter of section 36 into two parts, one of which, the smaller, is south of the stream, and the other constitutes a portion of the Island.

The section was surveyed in the year 1833 by Bennett, the Government Surveyor, and the survey duly filed in the proper office. The meanders of the Mississippi river, the quarter section posts, and the area of the fractional quarters, were all given by the survey. It appeared by it, that the south line of the quarter section impinged upon the river at a point near the centre of the line, and thus divided that part of the quarter which was south of the river into two separate fractions. The computation of this survey gave the contents of the east fraction at 1 87/100 acres, and of the west fraction at 5 17/100 acres. It is this latter parcel which is in contest. In April, 1839, Thomas Lindsey made application to the Receiver and Register of the land office at Galena to purchase the land, claiming a right of pre-emption under the Act of 1838 by reason of cultivation and actual residence thereon, and having established his claim to the satisfaction of those officers, he received from them on the 3d day of June, 1839, the proper certificate stating the receipt of the purchase-money, and that, on its presentation to the Commissioner of the General Land Office, he would be entitled to a patent. Shortly after receiving this certificate, Thomas Lindsey removed with his family, across the river into Iowa, and died on the 14th September of the same year, a little more than three months after its date. The present plaintiffs are his heirs, and were all, at the time of his death, either minors or femes covert. except James A. Lindsey. No patent ever issued to Thomas Lindsey or his heirs on this entry.

In 1845 David Hawes claimed a pre-emption right under the Act of 1841 for the same fractional southwest part of the northeast quarter of section 36, and in December received the certificate of the Register and Receiver that he had purchased and entered it, and on March 1st, 1848, received from the Government a patent.

The object of the present suit is to compel from said David Hawes and the other defendants, who are his grantees, a conveyance to plaintiffs of the legal title thus obtained by Hawes from the Government.

As Hawes took his patent from the United States with full knowledge of the certificate previously issued to Lindsey, it is quite clear that upon the facts above stated, without more, the complainants would be entitled to the relief prayed for in their bill. But the defendant Hawes, who alone has answered, sets up other facts upon which he relies as a full defence to the claim of the plaintiffs. There are in the record the depositions of some forty witnesses, besides letters and other documentary evidence, all of which have received the careful attention of the Court; although it will be found that the case must be decided upon a few facts about the truth of which there is but little conflict. These will be considered as we progress.

On the 9th August, 1845, James Shields, Commissioner of the Land Office, set aside the entry of Lindsey, ordered his certificate to be cancelled, and directed the Register and Receiver to hear proof of the right of David Hawes, and to adjudicate his claim.

They accordingly heard his proof, and gave him the certificate, on which he afterwards obtained his patent as before recited. It is claimed by the counsel of Hawes that this action of the land officers, including that of the Commissioner, was a conclusive and final adjudication of the matters now set up in plaintiffs' bill, and that the Courts of Law cannot go behind these proceedings to correct any injustice which may have been done to plaintiffs.

The proposition as thus broadly stated, and as necessarily so stated by defendant's counsel to avail him in this case, cannot be conceded. It appears from the evidence before us, that the ground on which the Commissioner set aside the entry of Lindsey, was, that there had been a mistake in the survey made by Bennett in 1833, and that by another survey made by order of the Commissioner in 1844, it was ascertained that the house in which Lindsey resided when he made his claim in 1839, was not on the land for which he received his certificate of entry from the Receiver and Register.

The order for this new survey emanated from the Commissioner of the Land Office June 1st, 1844, and the survey was actually made in the autumn of that year, five years after Lindsey's entry, and five years also after his death, and there is no proof whatever that any of his heirs had notice of this survey, or of any intention on the part of the Commissioner to set aside Lindsey's entry; but the whole proceeding was ex parte. It is true that subsequently, when the claim of David Hawes to a right to enter this land came before the Register and Receiver, James A. Lindsey seems to have had some kind of notice; but this was given him in regard to an attempt on his part to enter this land for himself, on a claim of improvement made by himself, having, as is clearly shown, no relation whatever to the right established by his father, Thomas Lindsey. Nor did the other heirs of Thomas Lindsey have any notice of the proceedings by which David Hawes established his claim before the Register and Receiver. These heirs were not in any sense parties, to any of the proceedings, by which the title to the land which their ancestor had bought of the Government, was vested in David Hawes, and their claim annulled.

Under these circumstances we have no hesitation in holding that the action of the officers of the land office was not conclusive upon their rights, and that a Court of Equity may inquire into the proceedings by which the title was vested in Hawes, and afford relief if a proper cause for it is shown to exist. That this is ...


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