pre-emption right

The claim of a pre emption is not that shadowy right which by some it is considered to be. Until sanctioned by law, it has no existence as a substantive right. But when covered by the law, it becomes a legal right, subject to be defeated only by a failure to perform the conditions annexed to it. It is founded in an enlightened public policy, rendered necessary by the enterprise of our citizens. The adventurous pioneer, who is found in advance of our settlements, encounters many hardships, and not unfrequently dangers from savage incursions. He is generally poor, and it is fit that his enterprise should be rewarded by the privilege of purchasing the favorite spot selected by him

The right given to settlers upon the public lands of the United States to puirchase them at a limited price, in preference to others.

The right given or; as, when a creditor has obtained a judgto settlers upon the public lands to purchase ment against his debtor which binds the latthem at a limited price in preference to ter’s land, he has a preference. others. A failing creditor, if an individual or part- It gave a right to the actual settler who nership, may at common law prefer any one was a citizen of the United States, or who creditor to the exclusion of others; Wilder had filed a declaration of intention to be- v. Winne, 0 Cow. (N. Y.) 285; Clarke v. come such, and had entered and occupied White, 12 Pet. (U. S.) 178, 9 L. Ed. 1046; without title, to obtain a title to a quarter- York County Bk. v. Carter, 38 Pa. 446, 80 section aC the minimum price fixed by law, Am. Dec. 494. See Sartwell v. North, 144 upon entry in the proper office and payment, Mass. 192, 10 N. E. 824. Knowledge of into the exclusion of all other persons. It is solvency does not render a preference inan equitable title: Mc Afee’s Heirs v. Keirn, valid, except under some statute; Merillat 7 Smedes & M. (Miss.) 780, 45 Am. Dec. 331; v. Hensey, 221 U. S. 333, 31 Sup. Ct. 575, 55 Pettigrew v. Shirley, 9 Mo. 0S3; U. S. v. L. Ed. 758, 36 L. R. A. (N. S.) 370, Ann. Cas. Fitzgerald, 15 Pet. (U. S.) 407, 10 L. Ed. 1912D, 497. 785; and does not become a title at law to At common law, unless prohibited by statthe land till entry and payment; Craig v. ute, a corporation whether insolvent or not, Tappin, 2 Sandf. Ch. (N. Y.) 78; Brown v. had a right to pay a creditor, whether a Throckmorton, 11 111. 529. It may be trans- director, officer, stockholder or outsider; ferred by deed; Delaunay v. Burnett, 4 Coats v. Donnell, 94 N. Y. 168; 2 Moraw. Gilman (111.) 454; and descends to the heirs Corp. § 802. As to preference by failing corof an intestate; Hunt v. Wickliffe, 2 Pet. porations, there are now two doctrines; one (U. S.) 201, 7 L. Ed. 397. that the assets are a trust fund for the bene- No person is entitled to more than one fit of all creditors pro rata and no preference pre-emption right to public land; and where can be given to any creditor; Consolidated a party has filed a declaration, he cannot Tank-Line Co. v. Varnish Co., 45 Fed. 7; file another for another tract, or for an ad- Beach v. Miller, 130 111. 162, 22 N. E. 464, dition to the first tract; Sanford v. Sanford, 17 Am. St. Rep. 291; Haywood v. Lumber 139 U. S. 042, 11 Sup. Ot. 000, 35 L. Ed. 290. Co., 64 Wis. 039, 26 N. W. 184; Rouse v. A person cannot acquire by his occupa- Bunk, 46 Ohio St. 493, 22 N. E. 293, 5 LR. tion only of unsurveyed lands of the United A. 378, 15 Am. St. Rep. 044; Billet v. Moody, States, a right of pre-emption to them; Bux- 3 N. Y. 479; State v. Brockman, 39 Mo. App. ton v. Truvor, 130 U. S. 232, 9 Sup. Ct. 509, 131; Goodyear Rubber (!o. v. G. D. Scott Co., 32 L. Ed. 920. The word heirs as used in 90 Ala. 439, 11 South. 370; Kendall v. Bishop, R. S. § 2209, which provides for the issuance 76 Mich. 634, 43 N. W. 645. The other that of a patent to the heirs of a deceased pre- a corporation has the same power in dealing emptor, includes illegitimate children, when with llie assets and preferring creditors as such can inherit it from their father in the an individual has under similar circumstancstate where he was domiciled and the land es; Garrett v. Plow Co., 70 la. 697, 29 N. W. located; Hutchinson Inv. Co. v. Caldwell, 395, 59 Am. Rep. 4G1; Allis v. Jones, 45 Fed. 152 U. S. 65, 14 Sup. Ct. 504, 38 L. Ed. 35G. 148; Pyles v. Furniture Co., 30 W. Va. 123, By act of March 3, 1891, the pre-emption 2 S. E. 909; Planters’ Bk. v. Whittle, 78 Va. laws were repealed, saving the rights of 737; Harwell Co. v. Sweetzer, 10 Colo. App. claims already initiated; 1 R. S. Sup. 942; 421, 51 Pac. 1012; Cowan v. Glass Co., 184 and bona fide pre-emption claimants were Pa. 1, 38 Atl. 1075. In the absence of statupermitted to transfer any part of their land tory prohibition it has been held a corporafor church, cemetery, and school purposes tion may convey its property to a creditor and for the right of way of railroads, canals upon condition that he pay himself and reand irrigation and drainage works. turn the surplus; Catlin v. Bank, 6 Conn. 233. See Hands, Public. It has been held that a failing corporation may prefer its own stockholders; Reichwald

The right given to settlers upon the public lands of the United States to purchase them at a limited price in preference to others.

Defined under Pre-Emption in Black's Law Dictionary.