Nichols v. Council

COCKRILL, C. J. Nichols brought his action of ejectment in 1886 against Council for the posession of 80 acres of land, relying upon a patent from the United States, issued, as it recites, “pursuant to the act of congress approved 20th May, 1862, to secure homesteads to actual settlers on the public domain, and the acts supplemental thereto.” The homestead entry upon which the patent is based, was made November 13th, 1875, the final proof certificate issued January 12th, 1885, and the patent followed in November of the latter year. The defence was a conveyance from the plaintiff to the defendant’s ancestor, and seven years adverse possession under that claim of title. The conveyance under which defendant claims, was executed by one Wittich on the 18th day of November, 1875, pursuant to a power of attorney from the plaintiff, dated August 24th of the same year. It empowered the attorney to convey any lands of which the plaintiff was then, or might thereafter become seized, including any which might be located under the soldier’s additional homestead act of June 8th, 1872, under which, the instrument recited, the plaintiff was then entitled to enter 120 acres in additon to what was called his “[my] forty acre homestead.” 1. Public Lands: Alienation of homestead From this statement it will be seen that the power of torney, which is the basis of the defendant’s claim of title, was executed by the plaintiff before he had made application to enter the land for a homestead. But it is against the policy of the United States homestead laws to permit a conveyance of any part of the homestead before the entry is completed. An agreement to convey or a conveyance by the homesteader is. therefore void, and it is the recognized doctrine that the public interest requires that the courts shall lend their aid to carry out the. policy'of the statute, notwithstanding the homesteader is the plaintiff and party to an agreement looking to the violation of the law. Cox v. Donnelly, 34 Ark., 762 ; Sorrels v. Self, 43 Id., 451 ; Shorman v. Eakin, 47 Id., 351; Marshall v. Cowles, 48 Id., 362. It is argued that the land in suit was entered by the plaintiff as a soldier’s additional homestead under the act of June 8th, 1872, and that the inhibition of sale contained in the original homestead act does not apply to this class of homesteads. The record does not make apparent the fact contended for, but the conclusion as to the law would not follow if we should view the facts as the appellee does. What is known as the soldier’s additional homestead right is the privilege granted by the second section of the act of June 8th, 1872, to honorably discharged soldiers and sailors who had previously made homestead entries of less than 160 acres, to make an additional entry of a sufficient number of acres to make the aggregate 160. The act is supplemental to the original homestead law. The first section, which favors the veteran by deducting his time of actual service from the period of residence on the land required by the general homestead law, expressly requires of those who attempt to-take advantage of its terms, a compliance with the provisions of that law, except as modified by the new act. One of those provisions is an affidavit by the enterer on making final proof, that he has not alienated any part of the land. The soldier who makes an original homestead entry under this act is then, by the express terms of the law, subject to this provision, and there is no general policy manifested by-the act to remove his incapacity to alienate before final entry. The section which confers the additional homestead right contains nothing that indicates a change of this policy. No procedure to govern in making the additional entry is provided. The old law, therefore, so far as applicable, must govern, for no rule of construction warrants the conclusion that a repeal of the law in force at the passage of the act was intended, except as it is expressly changed or irreconcilably conflicts with the last act. Whatever other proof required by that law is dispensed with in an effort to acquire the additional homestead, that of non-alienation has not been. The practice adopted by the land department requires it. See French’s Case, 2 Land Decisions of Interior Department, 235. 2. Same: Same: Statute of limitations. It follows that the additional homestead which the soldier may acquire is inalienable before the right is perfected. This leaves the defendant to stand upon his plea of adverse2-possession. But the statute of limitations could not be in motion while the title was yet in the United States. Gibson v. Choteau, 13 Wallace, U. S., 92; Simmons v. Ogle, 105 U. S., 271. If the statute can run at all before the patent issues, it would be only in a case where the right to the patent has been completed by the performance of every act going to the foundation of the right. In such cases it has been held by the supreme court of the United States that the land is segregated from the public domain; that it becomes private property and consequently the subject of sale for taxes. Witherspoon v. Duncan, 4 Wall., 210; Railway v. McShane, 22 Ib., 444; Van Brocklin v. Tennessee, 117 U. S., 151. The same reasoning, it would seem, would give operation to the statute of limitations. But in this case the right to the patent did not accrue until the patent certificate issued in 1885, which was only one year before suit was brought. The verdict and judgment, then, cannot be sustained on that theory. Reverse the judgment and remand the cause.