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evidence of title and the effect of such evidence, than to the title itself.
In all these cases the title is original and not derivative. The fact that there is another and conflicting title is purely accidental, and has nothing to do with the reasons for which the title given by the state vests.
It is true that prescription at common law was supposed to rest on the fiction of a lost grant. But this was a mere fiction (see note 53, post), and may now be entirely dispensed with, and the true reason of the law recognized, as it is in the analogous case of the statute of limitations to debts.
"Formerly it was thought that the statute of limitations was designed to raise a presumption of payment or adjustment from the lapse of time, but the better view is now the prevailing one, that it is a statute of repose, and intended to afford security against stale demands when the circumstances would be unfavorable to just examination and decision." (Per Graves, J., in Jenny v. Perkins, 17 Mich. 28, 33, 1868.)
"The gradual change of opinion here noticed has been attended by a corresponding one in the application of the statute, and in the administration of those principles of equity which have the same foundation. The policy of the statute as now considered so harmonizes with the kindred doctrine of the court of equity, that in many cases they seem to be nearly blended." Upon the general subject of title by prescription, limitation, or possession, see 3 Washburn, ch. 2, ?? 3, 7; 2 Hilliard, ch. 75, 76; 3 Kent, pp. *441–443; Wharton on Conv. Trac. tit. 4, ch. 3; 2 Smith's Leading Cases, #466, Nepean v. Doe; Taylor v. Horde.
Under this head seems to be the proper place to speak of those interests in the public lands which are acquired by actual settlers, viz., pre-emption and homestead rights (not to be confounded with homestead rights under state law).
I do not see why these are not perfectly legitimate examples of the "taking possession of those things which formerly belonged to nobody." (2 Blackst. 258.) It is true that in most cases occupancy alone does not vest a complete title. It is necessary either that a certain price should be paid, or certain conditions of residence, etc., fulfilled before the settler's title becomes a fee-simple. But he has some rights recognized and protected by law, immediately on taking possession; and these rights cannot well be traced to any source but occupancy.
It is not inconsistent with this that such rights are recognized by the law, only when they arise by virtue of some express statute. This is only equivalent to saying that the government, which is the entire owner of all the public lands, will not recognize individual occupancy except in cases where the proper permission has been given. The statute does not create a right of occupancy it only regulates it. But the rule that no preemption right exists, unless given by some special statutory enactment, is well settled. (Perrin v. Griffith, 13 Iowa, 151; Frisbie v. Whitney, 9 Wall. 187.)
A much more difficult and important question is as to the nature of the estate thus acquired, prior to the completion of the title. What is a claim, personal or real estate, a chattel interest or freehold? The decisions on this point are conflicting. In Iowa it was expressly decided that it is not an inheritable estate. Bowers v. Keesecker, 14 Iowa, 301, followed in Corbett v. Berryhill, 29 Iowa, 157, and overruling Davis v. O'Ferrall, 4 Greene, G. 358, so far as the same held that a widow was entitled to dower in such a claim, as real estate. The opinion in B. v. K., claims to be supported by Dav enport v. Farrar, 1 Scam. 315; Harrington v. Sharp, 1 Greene, G. 431; Delauney v. Burnett, 4 Gilm. 454; Brown v. Throckmorten, 11 Ill. 530; Clark v. Schultz, 4 Mo. 235. Stewart v. Chadwick, 8 Iowa, 463, discusses the same question, and seems to decide the same way,
though some of the reasoning (see p. 467) is very ambiguous.
But in Illinois, Lester v. White's Heirs, 44 Ill. 464, 1867, is express, that "this right is not a mere chattel interest. The pre-emption laws grant to the pre-emptor an estate in land upon conditions which become[s] absolute upon the performance of those conditions. (McConnell v. Wilcox, 1 Scam. 344; Isaacs v. Steel, 3 Scam. 97; Bruner v. Manlove, 3 Scam. 339.) It has been said by this court in subsequent cases that the interest acquired by a pre-emption right is not an estate, within any definition known to the common law. It is not an interest in the legal title, but merely a right of occupancy for the time being, with the privilege of purchasing at some future period, at a stipulated price. Such interests, however, are regarded by the courts of this state as property which may pass by deed or other transfer (Delauney v. Burnett, 4 Gilm. 454; May v. Symms, 20 Ill. 95), and is liable to be taken and sold under execution, and of passing to an assignee under a decree of bankruptcy. (Turney v. Saunders, 4 Scam. 527; French v. Carr, 2 Gilm. 664.) The interest in the land occupied by the pre-emption is such an interest as descends to the heir at law, and does not go to the executor." (44 Ill. 466, 467.) Phelps v. Kellogg, 15 Ill. 435, held that pre-emption gave no title to the land, and yet recognizes the pre-emption right as the subject of a sale. Thredgill v. Pintard, 12 How. 24, is an authority on the latter point.
In the recent case of Frisbie v. Whitney, 9 Wall. 187, and 4 West. Jur. 69, 1870, the Supreme Court of the United States decides that while occupation and improvement on the public lands with a view to pre-emption do not confer a vested right in the land so occupied [against the United States is clearly the meaning], they do confer a preference over others in the purchase of such lands by the bona fide settler, which will enable
him to perfect his possession against other individuals, and which the land officers are bound to respect. This inchoate right may be protected by the courts against the claims of other persons who have not an equal or superior right, though it is not valid against the United States.
But this limitation or denial of right against the United States is consistent with good right against all other individuals, which may as well be of the nature of a freehold as a chattel. For analogies in this respect, see the case of possession of crown lands, Harper v. Charlesworth, 4 Barn. & C. 474.
The true classification of a claim seems to be among equitable estates, not legal, and this at once disposes of most of the arguments by which it is denied to be a fee. Then the question recurs, 66 as an equitable estate, what would be its nature and place in the system?" and to answer it, we need only ask what would be the estate of such a vendee in possession under the offer of a private owner. Plainly that which he anticipates having at law when the transaction is complete a fee. Properly speaking, therefore, a pre-emption claim should be treated as an equitable fee conditional.
And this seems to be Washburn's view when he says: "It constitutes an equity in favor of the occupant, located upon, and identified and attached to the particular quarter section occupied and cultivated by the claimant . . . . in a court of equity, the person who has first appropriated the land has the best title."
Hunt v. Wickliffe, 2 Peters, 201 (by Marshall, C. J.), holds expressly that an entry in the name of "heirs" is good, i. e., that the claim passes to heirs and that it is an equitable title, though no point was made on the latter. That a pre-emption right descends to heirs was expressly held in Johnson v. Collins, 12 Ala. 321, cited 3 Washburn, 183.
(49) Special occupancy by executor, page 260.
Blackstone's doctrine that executor cannot take as special occupant even by force of the statutes was sustained by Lord Redesdale in Campbell v. Sandys, 1 Schoales & L. 289; but is controverted by Professor Wooddesson's Lectures, ii. 163, by Sugden, Powers, 198, and by Ripley v. Waterworth, 7 Ves. 425. (See Cruise's Digest, tit. 3. ch. 1, 22 53, 59.)
In America the question is of no practical importance. By statutes in most states the executor, or even the adininistrator, takos all such estates by occupancy: and as there is now no difference between the heirs of realty and the next of kin entitled to personalty, there is no dispute to be litigated by the persons beneficially entitled.