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CORNELIUS V. KESSELL, 128 U. S. 456 (1888)

U.S. Supreme Court

Cornelius v. Kessell, 128 U.S. 456 (1888)

Cornelius v. Kessell

No. 60

Submitted November 2, 1888

Decided November 19, 1888

128 U.S. 456


In Wisconsin, an equitable defense may be set up in an action at law, but it must be separately stated, in order that it may be considered on its distinctive merits and in order that, if established, the appropriate relief may be administered.

When, under the practice prevailing in a state, an equitable defense is set up in an action for the possession of land, the grounds set forth must he sufficient to entitle the defendant to a decree that the property be transferred from the plaintiff to him, or that the plaintiff be enjoined from prosecuting the action for the possession of the property.

Page 128 U. S. 457

When an entry is made of two or more tracts, one of which is not at the disposal of the United States by reason of being within a swamp land grant to a state, the validity of the entry of the remainder is not affected thereby.

When an entry is made upon public land subject to entry, and the purchase money for it is paid, the United States then holds the legal title for the benefit of the purchaser, and is bound, on proper application, to issue to him a patent therefor, and if they afterwards convey that title to another, the purchaser, with notice, takes subject to the equitable claim of the first purchaser, who can compel its transfer to him.

The power of supervision possessed by the Commissioner of the General Land Office over the acts of the register and receiver of the local land offices is not unlimited or arbitrary, but can only be exerted when an entry is made upon false testimony or without authority of law, and cannot be exercised so as to deprive a person of land lawfully entered and paid for.

When the Commissioner of the General Land Office, without authority of law, makes an order for the cancellation of an entry of public land made in accordance with law and accompanied by the payment of the purchase money, the person making the entry and those claiming under him can stand upon it, and are not obliged to invoke the subsequent reinstatement of the entry by the Commissioner.

The case is stated in the opinion of the Court.

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