Levi v. Thompson/Opinion of the Court

The only question raised by the plea tings in this cause, and it seems to us the only one argued at its hearings in the District and Supreme Courts of Iowa, was, whether the lot, for which Levi and Thompson had a pre emption certificate, which had been entered and paid for by them, was or was not liable to be sold upon execution issued upon a judgment rendered against them previous to a patent having been issued for the land by the government of the United States. Their right to a pre emption purchase of the lot was acquired under the act of the 2d of July, 1836, ch. 262, entitled 'An Act for laying off the Towns of Fort Madison and Burlington, in the County of Des Moines, and the Towns of Bellevue, Dubuque, and Peru, in the County of Dubuque, Territory of Wisconsin, and for other Purposes,' and under the act of the 3d of March, 1837, ch. 36, amendatory of the preceding act just recited. The right of Levi and Thompson to a pre emption, under those acts; is not a controverted point in the case. Taking it for granted, then, that it had been lawfully acquired, that they entered the land in the proper office, and that it was paid for in their names, this gave them the right to the register's certificate of purchase, to be transmitted to the commissioner of the general land-office, as in other cases of the sale of public lands. The fee continues in the United States until the issue of the patent, but the right to the fee was in the purchasers, and they were entitled to a patent for the land, unless there was some legal objection by the United States against issuing it, of which this court is not advised.

This right to the fee and a patent in this case gave to Levi and Thompson that 'equitable right' to the land, under the certificate from the receiver of the land-office, which the law of Iowa has made subject to execution for the satisfaction of judgments. Stat. Law Ter. of Iowa, 197, January 25th, 1839.

We further remark, that the principle upon which the case of Carroll v. Safford, 3 How. 441, was decided, covers this case. Nor do we find any thing in the case of Bagnell v. Broderick, or of Wilcox v. Jackson, cited by the counsel for the plaintiff in error, or in any other case decided by this court, which conflicts with the decision it here gives.

We direct the decree of the court below to be affirmed.