HUSSEY V. SMITH, 99 U. S. 20 (1878)

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U.S. Supreme Court

Hussey v. Smith, 99 U.S. 20 (1878)

Hussey v. Smith

99 U.S. 20


An incorporated town in Utah was situate on public lands, which were duly entered at the proper land office by the mayor, to whom a patent was issued under the Act of March 2, 1867, 14 Stat. 641. The legislature of the territory, as authorized by that act, enacted the requisite rules and regulations for the disposal of the lots in the town, and provided that the party who was the rightful owner of possession, or occupant, or was entitled to the occupancy or possession of a lot, should on certain conditions be entitled to

a deed therefor from the mayor. A mode whereby contesting claims should

be determined was prescribed. A., before the lands were entered, was in the possession of a lot, and mortgaged it to B., but thereafter remained in possession. In a foreclosure suit brought in the proper court against A., wherein the process sued out was served by the marshal of the United States for that territory, a decree was rendered whereunder he, still acting as the ministerial officer of that court, under the decision of the local courts that he was entitled so to do, made sale of the lot to C. The sale was confirmed by the court, and C. conveyed the lot to D., a nonresident. A. and D. respectively claimed a deed from the mayor.


1. That A.'s interest in the lot, before the lands were entered, could be the subject of a sale or mortgage.

2. That although this court subsequently decided that the marshal could act only in cases where the United States was concerned, his doings in the premises were those of an officer de facto; that by his service of the process, the court acquired jurisdiction of the person of A.; that the sale under the decree extinguished A.'s right to the lot; and that D. was entitled to a deed therefor from the mayor.

The Act of March 2, 1867, entitled "An Act for the relief of the inhabitants of cities and towns upon the public lands," approved March 2, 1867, 14 Stat. 541, provides:


Page 99 U. S. 21

any portion of the public lands of the United States have been or shall be settled upon and occupied as a town site, and therefore not subject to an entry under the agricultural preemption laws, it shall be lawful, in case such town shall be incorporated, for the corporate authorities thereof, and if not incorporated, for the judge of the county court for the county in which such town may be situated, to enter at the proper land office and at the minimum price, the land so settled and occupied, in trust for the several use and benefit of the occupants thereof according to their respective interests, the execution of which trust, as to the disposal of the lots in such town and the proceeds of the sales thereof, to be conducted under such rules and regulations as may be prescribed by the legislative authority of the state or territory in which the same may be situated,"


In accordance with this act, the Legislature of Utah, by an Act approved Feb. 17, 1869, made the necessary "rules and regulations," and in November, 1871, Daniel Wells, as Mayor of the City of Salt Lake, entered certain lands in that territory as "the town site" of said city, wherein was included the lot which is in controversy in this suit. On the thirtieth day of September, 1868, Job Smith, then and for many years prior thereto in possession of the lot and the owner thereof, subject only to the paramount title of the United States, executed to one Bernhisel a mortgage of all "his right of possession, claim, and interest in and to the lot," to secure the payment of a certain sum of money in one year thereafter. In September, 1869, Smith executed another mortgage of the lot to one Linforth, to secure the sum of $1,058.43, payable twelve months from that date. On the third day of December, 1870, Bernhisel filed his bill of foreclosure in the District Court of the Third Judicial District of that territory against Smith and Linforth. The process sued out was served by the marshal of the United States for the territory. A decree was rendered by default in favor of Bernhisel. Pursuant thereto the marshal sold the lot, and on the thirteenth day of March, 1871, the court, on his report of his doings, approved and confirmed the sale to William Jennings, to whom the marshal made a deed for the lot. Jennings conveyed it, March 9, 1872, to Hussey, a resident of the State of Ohio.

Page 99 U. S. 22

Smith remained in possession of the lot, and Dec. 11, 1872, filed in the probate court his written statement, pursuant to said act of the territory, claiming that he, under its provisions, was entitled to a deed, and praying that he be adjudged to be the lawful owner. Hussey filed a similar statement, which was amended May 24, 1872.

It was adjudged that Smith was entitled to a deed from the mayor of the City of Salt Lake, and that a certificate of title should issue to him therefor. To the same effect was the judgment of the district court and that of the supreme court. Hussey then appealed here.

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