Harkness & Wife v. Underhill

Mr. Williams for complainants. It makes no difference whether Waters's house and actual residence was on the land in question or on the adjoining tract. The substantial requirement of the law was, the improvement, and that was on the land. The United States were not wronged, for they got as much money, and as good, from Waters as they would have got from Stillman. Nor was Waters's entry a fraud upon Stillman. It was made with his consent and for his benefit. At all events, Waters's entry was good under the act of June 19, 1834, which provides that all persons who were in possession of and cultivated lands in 1833 shall be entitled to pre-emption. Besides, the irregularity was cured by the act of July 2, 1836. The register and receiver having sold the land to Waters in conformity with the instructions of the Commissioner of the General Land Office, had no further power or jurisdiction over it. Neither had the Commissioner of the General Land Office power to set aside the sale even for fraud. This could only be done by judicial authority. Opinions of Attorneys General, Public Land Laws, Instructions and Opinions, part 2, No. 15, p. 16; No. 57, p. 85; No. 58, p. 85; No. 64, p. 99; No. 88, p. 140; Elliott vs. Piersoll, (1 Pet., 340;) Wilcox vs. Jackson, (13 Pet., 511; 13 Curtis, 269;) Lytle vs. The State of Arkansas, (9 How., 333; 18 Curtis, 159;) United States vs. Arredondo, (6 Pet., 709, 729;) La Roche vs. Jones, (9 How., 17; 14 Pet., 458.) The entry of Waters was vacated on an ex parte application without notice. A judicial decree made under such circumstances, and in such a manner, would be a nullity. So, for a stonger reason, is the decision of a mere executive or ministerial officer.