Oaks v. Heaton

Day, J. As is apparent from the statement of facts, the sole question in this case is: Can an occupier of land, under the homestead act of 1862, make a valid contract to convey his homestead, when he shall have acquired the legal title? [120] í public stealaot™6" contract. [119] Section 2 of the act in question, 12 United States Statutes [120] at Large, 892, provides that the person applying for the benefit of this act shall, upon application to the reer or receiver of the land office in which he she to make such entry, make affidavit before such register or receiver that such application is made for his or her exclusive use and benefit, and that such entry is made for the purpose of actual settlement and cultivation, and not either directly or indirectly for the use or benefit of any other person or persons whomsoever; and, on payment of ten dollars, he or she shall thereupon be permitted to enter the quantity of land specified. Provided, however, that no certificate shall be given, or patent issued therefor for the space of five years from the date of such entry; and if at the expiration of such time, or at any time within ten years thereafter the person making such entry * * * shall prove, by two credible witnesses, that he, she or they, have resided upon or cultivated the same for the term of five years immediately succeeding the time of filing the affidavit aforesaid, and shall make affidavit that no part of said land has been alienated, then he or she shall be entitled to a patent. It is conclusively presumed that plaintiff knew of the provisions of this law. He is presumed to have known, at the time he made this contract with defendant, and accepted a conveyance for one-half of the land intended to be homesteaded, that he had placed defendant in a position which rendered it necessary for him to perjure himself, before he could obtain a patent to the land. How can plaintiff be permitted to compel a conveyance, under a contract which rendered it necessary that a crime should be committed, before there could be anything to convey. If plaintiff had agreed with defendant, that plaintiff would abandon his pre-emption claim in consideration that defendant would convey to plaintiff one-half the land, and then go before the register or receiver of the land office, and falsely make affidavit that no part of the land had been alienated, and and thus, by perpetrating a fraud upon the government and committing a felony, obtain a patent for the land, no one, probably, would claim, that, any court could lend its aid to the enforcement of the agreement. [121] Although not in words so expressed, yet such is precisely the effect of the agreement which the plaintiff seeks to enforce. In Dawson v. Merrille, 2 Nebraska, 119, it was held that the policy of the Act of Congress, granting homesteads on the public lands, is adverse to the right of a party availing himself of it to convey, or agree to convey, the land before he receives a patent, and that a court will not lend its aid to the enforcement of a contract which is against public policy. Appellee relies upon Snow v. Flannery, 10 Iowa, 318, and Nycum v. McAllister, 33 Iowa, 374. Snow v. Flannery was quite different in its facts and in its principles, from this case. Snow and Flannery settled upon different parts of the same quarter section of public land, before survey, and both filed pre-emption claims upon the entire tract. Each remained in possession of his claim. The quarter was not subdivided and could not be entered in parts. Their rights, by actual settlement, were equal. Snow proposed to pay Flannery his share of the entrance money and withdraw his filing, if Flannery would enter the entire quarter and convey to him his share. Flannery declined making a positive agreement before taking the pre-emption oath, but said he did not want Snow’s land, and would do what was right about it. Snow withdrew his filing and Flannery entered the entire tract. There was no contract which contemplated any false swearing, or fraud upon the government. The case of Nycum v. McAllister is still less like the present case. In that case, a mortgage was executed upon the homestead, after the homesteader had occupied five years, and was entitled to a patent, but before the patent was issued. It was claimed that the mortgage was invalid under section 4 of the Homestead Act, which provides “ that no lands acquired under the provisions of this act shall, in any event, become liable to the satisfaction of any debt or debts, contracted prior to the issuing of the patent therefor.” It was held that this provision was simply for the benefit of the settler, and was not intended to disable him from incumbering his interest before receiving the patent. The ease at bar arises under a distinct, and entirely different provision of the Homestéad [122] Act. The court below erred in granting the plaintiff the relief asked. Whether plaintiff would be entitled to the value of his improvements under the provisions of the occupying claimant law, this case does not involve, and we do not determine. Eeversed.