Pain v. Miller

Evans, P. J. This is a proceeding by mandamus to compel the surveyor of Houston county to survey the homestead of the plaintiff. [80] The statement of facts shows that Pain, being a tenant of Coleman’s, and cultivating a part of his farm in 1869, for convenience of wood and water, moved with his family, and erected a house on public land, under the impression that it was Coleman’s, and not vacant. On learning his right, by our homestead law, to acquire ahorne for himself and family where he was living, as it was public land, he applied to the surveyor, in June, 1871, to have his homestead surveyed. The surveyor refused, upon the ground, as he alleged in his answer, that he had already surveyed the land upon which he lived, on a file made by W. H. Cundiff for Mrs. L. C. Coleman, on the eleventh of September, 1870. How, though cultivating Coleman’s land, and residing on public land, it did not make Pain a tenant of Coleman’s as to his homestead. He could not hold his homestead as tenant of Coleman, for Coleman had no interest in the land whatever, it being public domain. We think that Pain was a settler in good faith, and entitled to his homestead; the statute of the twelfth of August, 1870, gave him twelve months to learn and perfect his rights to the same. And, in the language of the statute, “no person had the right to interfere by file, location or survey, by virtue of any land certificate, or other land claim whatever, within said prescribed time.” This case is therefore reversed and remanded, to be proceeded in according to this opinion. Reversed and remanded.