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WALSH V. PRESTON, 109 U. S. 297 (1883)

U.S. Supreme Court

Walsh v. Preston, 109 U.S. 297 (1883)

Walsh v. Preston

Argued March 13-14, 1883

Decided November 19, 1883

109 U.S. 297


Prior to 1844, the Congress of Texas authorized contracts to be made for settling emigrant families on vacant lands to be designated in the contracts. Subsequently that Congress passed an act to repeal this law, and presented it to the President of Texas for his signature. He vetoed the repealing act. Congress then passed it over the veto. While the repealing act was thus suspended, the president contracted with one Mercer and associates to settle families on a designated tract, capable of identification. Preston, the appellant in one suit and appellee in the other, was assignee under Mercer. In February, 1845, the Congress of Texas enacted that on failure of the associates to have the tract surveyed and marked by the first day of the next April, the contract should be forfeited. In October following, suit was begun to have the contract annulled for noncompliance with these provisions. A decree was entered declaring it forfeited, but it did not appear that proper service of the subpoena or other process or notice was made to give the court jurisdiction. After lapse of several years, suit was brought against the Commissioner of the Land Office of Texas to obtain certificates for location of land for which claim was made under the contract, either within the limits of the grant or in case the land there had been appropriated, then land of equal value elsewhere. The bill also prayed for an injunction to restrain the commissioner from issuing patents for lands outside the grant until the claims under the contract should be satisfied. The defendant denied the principal allegations of the bill and demurred on the ground that the Texas had not been made a party, averring that it was a necessary party. The court below found for the plaintiff on the facts and made a decree enjoining the commissioner and his subordinates forever from issuing patents within the boundaries of the contract tract except to Preston or his order:


1. That the decree was defective in not defining specifically the rights of the plaintiff in the land, in not adjusting the conflicting rights of Texas trod the plaintiff, and in tying up forever the hands of the government and all other interested parties without affording final relief.

Page 109 U. S. 298

2. That as the court could give no affirmative relief, and in the absence of the State of Texas could not settle its rights in the tract, it was without jurisdiction.

3. That even if the court had jurisdiction, the case was without equity on the merits.

Bill in equity to compel the delivery of patents of public land in Texas. The facts appear fully in the opinion of the Court.

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