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United States v. The Commissioner, 72 U.S. 5 Wall. 563 563 (1866)

United States v. The Commissioner

72 U.S. (5 Wall.) 563


A mandamus will not be granted to compel the performance of an office, such as the issuing of a patent for land, in a case where numerous questions of law and fact arise, some of them depending upon circumstances which rest in parol proof yet to be obtained, and where the exercise of judicial functions, some of them of a high character, is required. Nor will it be granted where it is reasonable to presume that there are persons at the time in possession under another title, and who therefore should have an opportunity to defend it.

Page 72 U. S. 564

The case in the above court arose on a petition by McConnell for a mandamus to command the Commissioner of the General Land Office to cause to be prepared, signed, countersigned, recorded, and issued, a patent to him for the north part of the south half of section No. 10, T. No. 39 W., range 14 E., situate in the City of Chicago. There was a rule to show cause and a return thereto by the Commissioner of the Land Office.

The right to the patent was founded upon a certificate of purchase by private entry at the register's office in Chicago on the 15th June, 1836. The relator complained that he had been denied the patent, since the issuing of the certificate down to the present time, some twenty-eight years, though repeated applications had been made by him for the same.

The return set up that one Robert Kenzie entered this same land under a preemption right as early as the 7th May, 1831, five years before the relator's entry, and that the letter's certificate of purchase on the 1st June, 1834, was cancelled on the 20th August thereafter, by the Commissioner on account of this previous entry.

Several objections were taken to the legality of the entry by Kenzie, such as that it was made in the wrong district, and, if in the right one that the entry on this part of the south half of section No. 10 was in violation of law, which objections were answered by allegations that an act of Congress was passed confirmatory of the defective entry, and also that the parcel entered and contested belonged to the north and not to the south part of the section.

It further appeared that a patent was issued to Kenzie 4 March, 1837, in pursuance of an Act of Congress passed 2d July, 1836, but to this it was objected that the rights of the relator had become vested by the previous entry of 1 June, 1836.

The court below refused to grant the mandamus, and the case was now here for review.

Page 72 U. S. 565

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