Levi v. Thompson

THE commissioners under the act of the 3d of March, 1837, amendatory of the act entitled 'An Act for laying off the Towns of Fort Madison,' &c., approved July 2d, 1836, confirmed unto Alexander Levi and John Thompson, as tenants in common, the right of purchase, by pre emption, of lot No. 68, in the town of Dubeque, being of the first class, containing seventeen one hundredths of an acre. The lot was entered in the land-office, and the receiver's receipt given to Levi and Thompson for the purchase money, on the 1st of April, 1840. It appears that William Chilson and Joel Campbell had instituted a suit, on the common law side of the District Court of Dubuque County, against Levi and Thompson, and that judgment was rendered against them for $780.50 and costs of suit, in August, 1839. Execution was issued upon the judgment in due form of law; it was placed in the sheriff's hands to be executed, and he levied upon the lot for which Lee and Thompson had a pre emption certificate, and the same was sold to satisfy the execution, before a patent had been issued by the United States to Levi and Thompson for the same. Thompson, the tenant in common with Levi, became the purchaser, paid the purchase money, and took the sheriff's deed for the same. Thompson, in November, 1841, sold the lot to the other defendants, who had paid for the same before Levi sued out his bill. They state, in their answer to Levi's bill, that when they bought the lot from Thompson, they were informed by him, and so supposed the fact to be, that he had a full and perfect right thereto, free from all encumbrances and of all claim by any other person or persons, and that at the time of their purchase, and when they made the payments to Thompson for the same, they were utterly ignorant of any title or claim to property in Levi, or that he set up or pretended to have any claim or title to the same. That the first notice they had of any such claim by Levi was about three weeks before the date of their answer to his bill, when he sent them word that he desired them to make a division of the property with him. They further state, at the time of their purchase there was a small log-house upon the lot, of little or no value to them, which they tore down and removed. That they went into quiet and peaceable possession of the lot at the time of their purchase, and have so remained ever since; that they had made lasting and valuable improvements upon the lot; that for a considerable part of the time whilst they were making these improvements, Levi had been in the city of Dubuque, and they believe must have discovered them, as he frequently passed and repassed the lot, and never informed them of his having any claim to the same. The cause was tried in the District Court, upon the bill and answers of the defendants, and the court adjudged that the petition of the complainant should be dismissed. An appeal was taken to the Supreme Court, and that court affirmed the decree of the court below; and from that court it has been brought to this court by appeal.

The cause was submitted on printed arguments, by Mr. Washington Hunt, for the appellant, and Davis and Crawford, for the appellees.

Mr. Hunt contended, that the legislature of the Territory of Iowa could confer no authority upon the sheriff to sell the property in question, because the title was yet in the United States, and had not passed to Levi and Thompson at the time of the sheriff's sale, and cited Bagnell et al. v. Broderick, 13 Peters, 436, and Wilcox v. Jackson, 13 Peters, 498, 516, 517.

He also contended, that the sheriff's deed could pass no title, because it was sold as real estate, whereas the fee simple was at that time in the United States.

Mr. Hunt also raised other objections, which it is not necessary to state, because the decision of the court turned upon a single point.

Messrs. Davis and Crawford, for the appellees, relied upon the validity of the statute of Iowa.

Mr. Justice WAYNE delivered the opinion of the court.