Myers v. Croft
ERROR to the Circuit Court for the District of Nebraska; the case being thus:
An act of Congress entitled 'An act to appropriate the proceeds of the sales of the public lands, and to grant preemption rights,' approved September 4th, 1841, after prescribing the manner in which the proof of settlement and improvement shall be made before the land is entered, has this proviso: 'and all assignments and transfers of the right hereby secured prior to the issuing of the patent shall be null and void.'
Under and by virtue of this act, one Fraily, on the 3d of September, 1857, entered a quarter-section of land in Nebraska, at the land office for the Omaha land district, with the register thereof.
On the same 3d of September, 1857-no letters patent having as yet issued to him-in consideration of $36,000, as appeared on the face of the deed, he conveyed by a warrantee deed the premises to 'The Sulphur Springs Land Company;' the company being not otherwise described in the instrument, and there being nothing in the instrument or in other proof to show whether the said grantee was a corporation and capable of taking land or an unincorporated company.
On the 1st of May, 1860-more than two years after the date of the deed above mentioned-Fraily made another deed, for the sum, as appeared by the instrument, of $6000, to a certain Myers.
In this state of things Myers sued Croft, who was in under the company, in ejectment, to try the title to the land. And the deed to 'The Sulphur Springs Land Company' being in evidence on the part of the defendant, the plaintiff moved the court to rule it from the jury, for the reasons:
1st. That he had not shown that the Sulphur Springs Land Company was an organization capable of receiving the conveyance of land; and,2d. That under the provisions of the act of Congress, already quoted, the deed was void.
The court overruled the motion, charging contrariwise, that the deed was valid and passed the title to the premises. To this ruling and charge the plaintiff excepted, and judgment having been given for the defendant the case was now here.
Messrs. N. Cobb and L. Douglass, for the plaintiff in error:
1st. Although the Sulphur Springs Land Company, as we may here admit, was in fact incorporated, the fact nowhere appears in proof. Being a chartered company it was incumbent on the defendant to show the terms of the charter, and that by them the company could take the lands.
If not a corporation, the deed was void for want of certainty in the name of the grantee.
2d. Does the 12th section of the act of Congress of September 4th, 1841, intend to prohibit the pre-emptor from all alienation of the property which he has acquired under the pre-emption act prior to the issuing of the patent, or does it intend simply to prevent the transfer of the right to preempt?
The former view is the one best sustained by the statute. That is the way it reads; and when a statute is plain, it should not be frittered away by refinements. Until payment made for the land and certificate of purchase procured the pre-emptor has nothing which he can assign. If after certificate of purchase was obtained, there was intended to be no restriction on the sale of the land by the pre-emptor, why did the act use the words 'prior to the issuing of the patent?'
The other view is, that the right secured is the right to pre-empt: and that this right is fully secured when the purchase is made of the United States. The right thus preferably to purchase cannot be transferred, and it is this alone (it may be argued) which is prohibited. If so, why did the statute use the words 'prior to the issuing of the patent,' instead of prior to the issuing of the certificate? Congress knew the difference between a certificate of purchase and a patent. They are different instruments and subserve a different purpose. The certificate shows that the party has entered the land land is entitled to a patent at some future time; the patent transfers the title.
According to the course of business ordinarily, patents do not issue for years after the entry is made. This case proves that fact, and it is not unreasonable to suppose Congress was apprised of that fact.
The view we take of this law best accords with the policy of the pre-emption privilege. The object of the government was, in fact, to induce settlements upon the public lands, but chiefly to confer the preferable right to purchase on those persons, usually in indigent circumstances, who actually settled or improved them. It was not to aid the speculator in lands. 
Pre-emptions for purposes of speculations will be less likely to be made if the pre-emptor is obliged to wait until the patent issues before he can alienate.
There was a similar provision in the act of 29th May, 1830.  The language of the two acts is almost literally the same. By the act of January 23d, 1832,  the prohibition as to assignment and transfers of the right of pre-emption contained in the act of 1830 is removed, and it is provided that 'all persons who have purchased lands under the act of May 29th, 1830, may assign and transfer their certificates of purchase or final receipts, and patents may issue in the name of such assignee, anything in the act aforesaid to the contrary notwithstanding.' This shows that it was understood by Congress as restricting alienations by the pre-emptor, after payment and before patent issued. The effect of allowing such transfers was such that Congress, in passing the carefully-framed act of September 4th, 1841, renewed the prohibition against transfers which was contained in the act of 1830. The government had witnessed the practical effect of both policies, and the judgment of Congress as embodied in the latter act as to which is the better policy should be respected by the courts, and the language of the statute should be allowed its fair and natural meaning.
Though the point has never been before this court, it has frequently been before the State courts, and they have with great uniformity held that the pre-emptor had no transferable interest prior to the issuing of the patent. 
Mr. Justice DAVIS delivered the opinion of the court.
^1 Marks v. Dickson, 20 Howard, 501, 505.
^2 4 Stat. at Large, 420, § 3.
^3 Ib. 496.
^4 Arbour v. Nettles, 12 Louisiana An. 217; Poirrier v. White, 2 Id. 934; Penn v. Ott, 12 Id. 233; Stanbrough v. Wilson, 13 Id. 494; Stevens v. Hays, 1 Indiana, 247; McElyea v. Hayter, 2 Porter (Ala.), 148; Cundiff v. Orms, 7 Id. 58; Glenn v. Thistle, 23 Mississippi, 42-49; Wilkerson v. Mayfield, 27 Id. 542; McTyer v. McDowell, 36 Alabama, 39; Paulding v. Grimsley, 10 Missouri, 210.