DECEMBER TERM, 1871.
The case of Johnson v. Towsley, held applicable although no patent certificate was issued to the claimant who showed the better right of pre-emption; the general principle being laid down that when a party is deprived of his right of pre-emption otherwise perfect, by a mistaken construction of the act of Congress by the land department, equity will relieve.
IN this case the controversy had been between one Samson and a certain Smiley, and the register and receiver had decided in favor of Smiley. Samson accordingly brought the case here. The case differed, as this court considered, in no respect from the case just decided, but one, which was that when the register and receiver decided in favor of Smiley against Samson, in the contest for the right of pre-emption to the land, they did not give him a patent certificate as they did to Towsley. The reason for this seemed to be that the contest between him and Samson was prosecuted immediately from the register and receiver's decision to the commissioner, and from the commissioner's decision affirming that of the register and receiver, to the secretary, so that there was no period, until the final decision of the latter, when either party could have been permitted to make the entry; but the record showed that, on a full and thorough investigation, all the officers of the land department decided that Smiley had established his right of pre-emption, and the secretary overruled this on the sole ground that he had filed a declaratory statement for another tract of land.
After argument by Mr. Trumbull, for Samson et al., plaintiffs in error, and by Messrs. M.H. Carpenter, J.M. Woolworth, and A.J. Poppleton, contra, the judgment of the court was delivered by Mr. Justice MILLER, to the effect that the land in question, having never been subject to private entry, the construction of the statute made by the secretary was erroneous, and operated to deprive Smiley of his right, otherwise perfect, to the land, and to vest the legal title, which he ought to have received, in Samson. The case came, therefore, as the court considered, within the principle just decided in Towsley v. Johnson, and the judgment of the Supreme Court of Nebraska was accordingly