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SMILEY V. SAMPSON.

11. NEGLECT OF OFFICER. The law will protect an individual who, in the prose

cution of a right, has done all that the law requires him to do, but fails to attain his right, by reason of the neglect or misconduct of a public officer.

12 FRAUD IN PRE-EMPTIONS. If an indigent party give for a house standing

on a tract of the public land, his note for $3,000, and thereupon asserts a preëmption claim to the tract, without making any other improvement thereon, and as soon as he effects his entry, conveys a large tract to the payee of the note, in discharge thereof, and also conveys most of the remainder to parties, who as witnesses and attorneys have aided him in securing it, and who have previously endeavored to secure it by fraudulent practices, these circumstances unexplained, justify the opinion that there was at the time of his first asserting his preëmption claim, an agreement to do what was afterwards done.

In the summer of 1857, Smiley possessing such personal qualifications, as under the provisions of the act of September 4, 1841, entitled him to preëmpt a tract of the public land, erected on the west half of the south-east quarter of section three, and the west half of the northeast quarter of section two, in township fifteen north, range thirteen east of the sixth principal meridian, a substantial Jwelling and another house, and fenced an enclosure around the same, and made some other improvements, all of the value, and at a cost of about $1,500.

At this time an association of persons who assumed the name of the Sulphur Springs Land Company, “ claimed” – in the parlance of the frontier — these lands, together with several thousand acres adjoining. That is, without any right or title derived from the United States land laws, they assumed the proprietorship of these lands, and pretended to have, although they had not in reality, possession and occupancy thereof. The object of this company was to build a town on these lands. They laid them off into town lots with streets, and induced many persons to build houses on the lots and live on them. They also issued certificates of shares as in a joint stock company, which were held by large numbers of persons.

POLAND 0. O'CONNOR.

Poland v. O'Connor.

SPECIFIC PERFORMANCE of a parol contract for the sale of lands 1. Must be clearly established. A parol agreement for the sale and conveyance

of land must be established by clear and most satisfactory proof, or the court will not specifically enforce it.

2. PART PERFORMANCE. Payment of a small portion of the purchase price is

not such part performance as takes the contract out of the statute of frauds.

-: Possession. To take such a case out of the statute, the possession of the vendee must be by acts clear, certain and definite in their object, and having reference to the contract.

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- Possession taken by the vendee after the vendor has disavowed the contract, which has been made by a person pretending to be his agent, will not support the claim.

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-. Using a lot otherwise vacant, and adjoining the vendee's warehouse, for storing lumber, wagons and like articles, of himself, his firm and others who have placed the same in his hands for sale on commission. is not such possession as will take the case out of the statute.

-: Building. Not every possible act of the vendee done with reference

to the contract, but those only to which he has been induced by positive action or permission of the vendor, or at most by those results which naturally flow from the agreement, operate to take the case out of the statute.

7. -: An instance. A vendee under such contract, who has purchased a

house with the view of placing it on the premises, but who has not doue so, has not thereby taken his case out of the statute.

This was a bill in chancery for a specific performance of a parol contract, for the sale of certain real estate.

The plaintiff claimed to have made the purchase through one Clarke, who, as he insisted, was the defendant's agent. Whether O'Connor had ever appointed Clarke his agent, or in any way authorized him to sell the lot, was a ques. tion of fact in the cause, much discussed. Clarke testified very positively that O'Connor had employed him to sell the lot, had assented to the sale and the terms of it, and

POLAND 0. O'CONNOB.

detailed a number of circumstances to show that he was correct.

On the other hand, O'Connor contradicted Clarke as positively, gave a different version to their conversations, and testified to a continued and persistent refusal on his part to sell, at and about the time Clarke claimed to have received his authority to sell. The purchase price of the lot as alleged by the plaintiff

, was one thousand dollars. When informed that Clarke had made the sale to him, the plaintiff immediately sent bim $25 to apply on the purchase, and received from Clarke a receipt, saying that the deed was to be made in ten days. Shortly afterwards, and as the defendant alleged, as soon as he heard that the plaintiff claimed to have made the purchase through Clarke, he disavowed the sale, and informed the defendant that he should claim rent for the premises, if he occupied them.

The premises were a business lot in Omaha, vacant at the time, adjoining a warehouse which belonged to the plaintiff, in which with a partner, he carried on the busiDess of selling articles of merchandize, particularly wagons, on commission. He had on the lot, shingles, timber, lum. ber, machinery and wagons. He had also purchased a house with the view of placing it on the premises, and designed to carry on therein a mercantile business. This house had been taken in pieces, brought from a considerable distance, and in consequence of the defendant's refusal to convey, bad been left at the wharf, and never been placed

on the premises.

The cause was heard upon pleadings and proofs, and a decree was rendered dismissing the bill.

The plaintiff appealed to this court.

A. J. Poppleton, for the appellant, contended that the agency of Clarke was proven, notwithstanding the defend

SMILEY V. SAMPSON.

Smiley's father owned one or more of these certificates. The Smiley family consisted of the plaintiff, the father and four maiden sisters. Immediately on their arrival in the Territory, with the lumber for the houses above mentioned and their household goods, they proceeded, (the plaintiff claims that he, and the defendants claim that the father proceeded) to the premises in question and built the said houses, and afterwards lived there for some time. The only other improvements upon the tract was a house built by one Gant. The tract was, like the other lands "claimed" by the Land Company, laid off into lots; but Smiley's house and enclosure was not built with any reference to the lines thereof.

Shortly after Smiley built the houses, the company caused John A. Mowrey to preëmpt under the act of September 4, 1841, the quarter section here in question, and immedi. ately convey the same to it. In March, 1858, Mowrey's entry was returned to the local from the general land office, with directions to the register and receiver to rein. vestigate his right to preëmpt; and on the 4th of June following, those officers decided against the validity of his entry. In the same month, Smiley asserted his right to preëmpt the land, by tendering to the register his declaratory statement of intention to claim the same, under the act of 4th September, 1841. The officer refused to receive the paper, on account of Mowrey's previous entry. Smiley then took steps in his own name, and on his own behalf against Mowrey's entry, and upon his caveat filed before the commissioner, it was by that officer again returned to the local office for reëxamination. The investigation commenced on the 13th of December, 1858, and was protracted till the 3d day of March, 1859. This matter was entitled "John A. Smiley v. James A. Mowrey.The result was a decision by the register and receiver adverse to the claims urged in Mowrey's name, which they communicated to the

SMILEY V. SAMPSON.

commissioner by their letter, dated May 19, 1859. This decision was approved by the last mentioned officer, and no subsequent efforts were afterwards made to reverse or modify it.

The ground of the decision was, that Mowrey had made the entry for the Land Company and not for himself.

At this point, the appellant Sampson first appears as a claimant of these lands. He had come to Nebraska the preceding spring, in very straightened circumstances, and rented the house on the tract built by Gant, and also a farm three miles distant, which he worked that season. In August, he filed his declaration of intention to preëmpt, adversely to Smiley, hy whose persistent efforts the tract had been discharged of the fraudulent entry in Mowrey's name. On the 16th of November, 1860, the investigation ordered by the commissioner was had ; and the matter was entitled John A. Smiley v. James A. Mowrey and others.Smiley stood on the proofs of his right taken in the former examination, and Sampson introduced proof, in support of his claims. The record thus presented was unsatisfactory to the commissioner; and on the 24th of January, 1862, he ordered a new and full examination on four points, namely: “First, the date of settlement; second, the nature and purposes of the same; third, the nature and extent of the improvements; and fourth, the date and duration of the residence of each claimant.On the 9th of June, 1862, this examination commenced before the register and receiver, and was very full and greatly protracted; and resulted in a decision by those officers in Smiley's favor. Sampson appealed to the commissioner, who on the 9th of October, affirmed the report of the loca. officer. Sampson appealed again to the Secretary of the Interior, who on the 11th of July, 1863, revised these decisions, and awarded the land to Sampson. The sole ground of the Secretary's decision is the fact that Smiley

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