Cumens v. Cyphers

ROSS, J.: In this case, the Court below sustained a demurrer to the complaint, the plaintiff declined to amend, and thereupon final judgment was entered for the defen dent, from which the plaintiff appeals. It appears from the averments of the complaint, that on the 22d of August, 1870, the land in controversy was unoffered surveyed public land of the United States, subject to be settled upon and pre-empted under the United States pre-emp[384]tion laws. On that day, the plaintiff, being at the time and ever since, a qualified pre-emptor, settled upon the land with the intention of acquiring the title to it from the Government, and accordingly, on the same day, filed -in the proper land office liis declaratory statement thereof in due form. He erected a dwelling-house on the land, and cultivated and improved it.» On the 25th of July, 1871, he, with the consent and approval of the proper land officers, transmuted his declaratory statement into a homestead entry.

May 23rd, 1876, the homestead entry was canceled by the Secretary of the Interior. On the 7th of June thereafter, the plaintiff filed a second declaratory statement in the land office for the same land, setting forth that he was a citizen of the United States, the head of a family, and over twenty-one years of age, and did, on the 22d day of August, 1870, settle upon and improve the said land, and that he intended to pre-empt it under the pre-emption • laws. On the same day, he took his family upon the land, and they have continued' to reside there, in the dwelling-house theretofore erected by him, ever since, and the plaintiff has ever since continuously cultivated and improved the land.

On or about the 10th day of September, 1876, the plaintiff was cited to appear, and did appear before the register and receiver of the land office, at the instance of one Johnson, to contest the right with the latter to pre-empt the said land. Upon the hearing of the contest, the plaintiff made the required proof to the satisfaction of the register and receiver, who thereupon decided that the plaintiff was entitled to pre-empt it. On appeal to the commissioner of the general land office, and subsequently to the Secretary of the Interior, those officials reversed the decision of the register and receiver, on the sole ground that the second declaratory statement filed by the plaintiff was illegal and void, by reason of § 2261 of the Eevised Statutes of the United States.

Johnson never made any settlement or residence upon the land, and with full knowledge of all the facts above mentioned, the defendant, about January, 1878, purchased from Johnson whatever right the latter had to pre-empt the land or to possess it; in 'consideration of which, Johsson, at defendant’s request,