Holden v. Andrews

Sawyer, C. J., delivered the following opinion, in which Sanderson, J., concurred: Plaintiff, Holden, being in possession of a tract of unsurveyed public land, sold and delivered the possession to Andrews for a sum specified to be paid at a future day. Defendant, Andrews, having failed to make payment according to the terms of the sale, plaintiff brought this action to recover possession of the land, and recovered judgment. The defendant, on the trial, offered to prove that at the time of the purchase the land was unsurveyed public land; that it had since been surveyed; that defendant was a person [122] qualified and competent to enter said land, under the homestead laws of the United States ; that he did enter said lands under the homestead laws of the United States, and that he now holds the same under said laws. Plaintiff objected on the ground that defendant entered under a contract of purchase, and that he is estopped from setting up a subsequently acquired title from the United States, without first surrendering the possession acquired by his purchase from the plaintiff. We think this is not a case that falls within the rule. The plaintiff did not pretend to have any title other than by naked possession. It was well known to both parties that the lands were public lands, and it was doubtless contemplated at the time of the sale that the defendant should purchase, or be in a position to purchase, the land of the Government so soon as it should be open to entry. It was not a case of doubtful title, in which possession is important with reference to a contemplated litigation. It may be unjust for the defendant to make use of the possession thus acquired, to enable him to acquire the title of the Government, without paying for the possession according to the terms of the contract with plaintiff. But the case does not appear to us to be within the rule of estoppel invoked by'plaintiff; and we think defendant should have been allowed to show that he had purchased the land of the United States. Judgment and order denying a new trial reversed, and a new trial granted.