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Under the statute of Illinois, a conveyance of plaintiff's title to third person, pending suit, does not defeat his right of recovery. In such case the recovery in ejectment inures to the benefit of the grantee of the plaintiff. This is probably the rule at common law, although the decisions of the courts in the several states are contradictory. But the statute of Illinois determines the question as above. (Mills v. Graves, 44 III. R. 50.)

The return of the officer who serves the process in an action of ejectment is sufficient proof that the defendant was in possession at the commencement of the suit, unless he files a plea denying such possession. (Harding v. Strong, 42 Ill. R. 148.)

It is held that the vacating of the judgment in ejectment, upon taking a new trial in the court below, under the statute, will not operate to discontinue a writ of error pending at the time, which was brought by the party thus taking the new trial, to reverse that judgment. Notwithstanding the judgment has been vacated, the superior court will retain jurisdiction of the writ of error, and decide the case as presented on the record. (Rees v. The City of Chicago, 40 Ill. R. 107.)

The statutes of Illinois require that the declaration in ejectment shall be served upon the actual occupant, and the practice of the courts of the state authorizes the appearance of the landlord, and his defense of the suit, either in his own name or that of the tenant, with his consent. (Williams v. Brunton, 3 Gilman's R. 600.) And when a landlord has undertaken the defense of a suit in the name of the tenant, with his consent, the tenant cannot interfere with the cause to his prejudice. (Doe v. Franklin, 7 Taunton's R. 9.) And upon these grounds the supreme court of the United States, in a case wherein a party had recovered a judgment in ejectment, in the circuit court of the United States for the northern district of Illinois, against a party or tenant in possession of a parcel of land in that district, held that where the defendant in ejectment in the court below, died after judgment, and his attorney and landlord who had conducted the suit in the name and with the consent of the deceased, sued out a writ of error in the name of the heirs, gave bond for the prosecution of the writ and for costs, a motion to dismiss the writ will not be entertained, although the heirs of the deceased authorize the motion to dismiss. It appeared to the court that the attorney of the deceased defendant, in such case, was a bona fide claimant of the land, and prosecuting the writ of error in good faith; and hence the motion to dismiss the writ of error in the case was overruled. (Kellogg v. Forsyth, 2 Wallace’s R. 186.)

At an early day in the history of the state of Illinois, the supreme court of the United States had under consideration a case involsing the title to a parcel of land in Chicago, in which some very important principles were settled. An action of ejectment was brought in the circuit court of Cook county, in said state, for the recovery of a part of the military post of Fort Dearborn, at Chicago, against a defendant who was in possession of the premises as the commander of the post. The defendant appeared, and after the usual pleadings the cause was tried, and resulted in a judg. ment for the defendant; and an appeal was taken to the supreme court of Illinois, by which court the judgment of the circuit court was reversed, and judgment entered for the plaintiff below. To reverse this judgment, a writ of error was sued out at the instance of the United States, and the case taken to the supreme court of the United States ; and after a very able argument by Mr. Butler and Mr. Grundy, attorney-general, for the plaintiffs in error, and by Mr. Key and by Mr. Webster, for the defendant in error, the following propositions, among others, were laid down:

The decision of the register and receiver of a land office, in the absence of fraud, would be conclusive as to the facts that the applicant for the land was then in possession, and of his cultivating the land during the preceding year, because these questions are directly submitted to those officers. Yet, if they undertake to grant pre-emptions to land on which the law declares they shall not be granted, then tlrey are acting upon a subject matter clearly not within their jurisdiction, as much so as if a court, whose jurisdiction was declared not to extend beyond a given sum, should attempt cognizance of a case beyond the sum. Appropriation of land by the government is nothing more or less than setting it apart for some particular use. In the case before the court, it was held that there had been an appropriation of the land, not only in fact, but in law, for a military post, for an Indian agency, and for the erection of a lighthouse.

By the act of congress of 1830, all lands are exempted from pre-emption which are reserved from sale by order of the president of the United States. The president speaks and acts through the heads of the several departments, in relation to subjects which

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appertain to their respective duties. Both military posts and Indian affairs, including agencies, belong to the war department. A reservation of lands, made at the request of the secretary of war, for purposes in his department, must be considered as made by the president of the United States, within the terms of the act of congress.

Whensoever a tract of land shall have once been legally appropriated to any purpose, from that moment the land thus appropriated becomes secured from the mass of public lands; and no subsequent law, or proclamation, or sale, would be construed to embrace it, or to operate upon it, although no other reservation was made in it.

The right of pre-emption was a bounty extended to settlers and occupants of the public domain. This bounty, it cannot be supposed, was designed to be extended to the sacrifice of public establishments, or of great public interests.

Nothing passes a perfect title to public lands, with the exception of a few cases, but a patent. The exceptions are, when congress grants lands in words of present grant. The general rule applies as well to pre-emptions as to other purchases of public lands.

The act of the legislature of Illinois, giving a right to the holder of a register's certificate of the entry of public lands to recover possession of such lands in an action of ejectment, does not apply to cases where a paramount title to the lands is in the hands of the defendant, or of those he represents. The exception in the law of Illinois applies to cases in which the United States have not parted with the title to the land by granting a patent for it.

A state has a perfect right to legislate as she may please in regard to the remedies to be prosecuted in her courts, and to regulate the disposition of the property of her citizens, by descent, devise or alienation. But congress are invested, by the constitution, with the power of disposing of the public land, and making needful rules and regulations respecting it.

Where a patent has not been issued for a part of the public lands, a state has no power to declare any title, less than a patent, valid against a claim of the United States to the land, or against a title held under a patent granted by the United States.

Whenever the question in any court, state or federal, is, whether the title to property which had belonged to the United States has

passed, that question must be resolved by the laws of the United States. But whenever the property has passed, according to those laws, then the property, like all other in the state, is subject to state legislation, so far as the legislation is consistent with the admission that the title passed and vested according to the laws of the United States.

Every tribunal acting judicially, while acting within the sphere of its jurisdiction, where no appellate tribunal is created, its judgment is final, and even when it only comes collaterally in question, so long as it is unreversed. But directly the reverse is true in relation to the judgment of any court acting beyond the pale of its authority.

The principles settled by this case are practical and important, and have an application, not only in the state of Illinois, but throughout the entire Union, and especially in all of the western states. Although there have been some changes in the departments at Washington since the disposition of the case, the decision is of the same practical effect now that it was at the time it was pronounced. (Wilcox v. Jackson, 13 Peters' R. 498.) The principle last above laid down is concisely and accurately stated in a much earlier case before the same court, wherein it was declared that “where a court has jurisdiction, it has a right to decide any question which occurs in the cause; and, whether its decision be correct or otherwise, its judgments, until reversed, are regarded as binding in every other court. But if it act without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void, and form no bar to a remedy sought in opposition to them, even prior to a reversal. They constitute no justification, and all persons concerned in executing such judgments or sentences are considered, in law, as trespassers. The jurisdiction of any court exercising authority over a subject may be inquired into in every other court, where the proceedings of the former are relied on, and brought before the latter by a party claiming the benefit of such proceedings." This, as a rule of evidence, is quite important to be understood in connection with the action to recover real property. (Elliott v. Piersol, 1 Peters' R. 329, 340.)

CHAPTER XL.

THE ACTION FOR THE RECOVERY OF REAL PROPERTY IN THE SEVERAL

STATES — THE PRACTICE IN WISCONSIN, MINNESOTA AND IOWA.

In the state of Wisconsin, the action to recover real property was formerly called the action of ejectment; but under the present practice it is termed an action for the recovery of specific real property, or of the possession thereof; and the action is commenced and proceeded in in the same manner as other civil actions, with such exceptions as are noted.

No person can recover in an action for the recovery of real property unless he has, at the time of commencing the action, a valid, subsisting interest in the premises claimed, and a right to recover the same, or to recover the possession thereof, or of some share, interest or portion thereof, to be proved and established at the trial. And, if the premises for which the action is brought are actually occupied by any person, such actual occupant must be named defendant in the complaint; if they are not so occupied, the action must be brought against some person exercising acts of ownership on the premises claimed or claiming title therein at the commencement of the action.

The complaint in the action must set forth that the plaintiff has an estate or interest in the premises claimed, particularly stating the nature and extent of such estate or interest, whether in fee, in dower, for life or a term of years, specifying such life or lives or the duration of such term, and that he is entitled to the possession of such premises, and that the defendant unlawfully withholds the possession thereof from him, to his damage such sum as the plaintiff claims for his damages, and must contain a demand for the relief to which the plaintiff supposes himself entitled. In the complaint the premises claimed must be described with convenient certainty, designating the number of the lot or township, if any, in which they shall be situated ; if none, stating the names of the last occupants of the lands adjoining the same, if any; and if none, describing such premises by metes and bounds, or in some other way, so that from such description possession of the premises claimed may be delivered.

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