Holloman v. Bullock

Calhoon, J., delivered the opinion of the court. Amanda Pittman was the mother of three bastard children. So situated, she entered the land in 1882. One Jesse Bullock afterwards married her. She died, leaving as her heirs this Jesse Bullock as husband, .and Van Burén Bullock, W. M. Robertson, and William Pittman, Jr., her bastard children. She had no legitimate child. Penora Holloman, one of the appellants, appears as the sole heir of William Pittman, Jr. Jesse Bullock, the husband, indulged a presumption that he was de facto, if not de jure', the actual father of Van Burén. Whether he was or not, he demonstrated his faith by his works. He stood by Van Burén in a crucial test, and very freely made for him the sublime sacrifice of perjury in order that he might be the sole patentee of his mother’s homestead entry to the ex409 elusion of Ms two brothers. This fact, indisputable from the record, would end the case but for some questions of law which require attention. Amanda Pittman, before her marriage, and on February 3, 1882, made her application for entry of the land, though then she had been actually settled on it since 1879. She died May 23, 1886, before the five years had elapsed. On March 18, 1889, Jesse Bullock, representing himself as the legal guardian of Van Burén Bullock, and that the latter was the only heir, made final proof. The land commissioner, however, very properly issued the certificate, of date September 18, 1889, to “the heirs” of Amanda. Immediately then, of course, the title vested in her husband and three children as tenants in common, each with an undivided one-fourth interest. But for some cause not disclosed the commissioner, on November 7, 1891, without notice to the parties in interest, amended the certificate so as to give all to Van Burén Bullock. Perhaps, on a review of the proof, he was misled by the false affidavit of Jesse Bullock that Van Burén was the only heir, or perhaps he thought the case fell within section 2292, Rev. St. U. S. (IT. S. Comp. St. 1901, p. 1394). Jesse Bullock died in 1892, after this change. Section 2291, Rev. St. TT. S. (H. S. Comp. St. 1901, p. .1390), directs, in case of the death of the person making the entry, that the certificate issue to the “heirs or devisees” of such person, as was properly so done at first in the case before us. Section 2292 (U. S. Comp. St. 1901, p. 1394) provides that, “in the case of the death of both father and mother, leaving an infant child or children under twenty-one years of age, the right and fee shall inure to the benefit of such infant child or children.” In the construction of these two sections it was held in Bernier v. Bernier, 147 U. S., 242, 13 Sup. Ct., 244, 37 L. Ed., 152, that they did not conflict, and that section 2292 was only intended to give to the minors exclusively when there are ño other heirs. [410] The bill in tbe case before us was filed October 13, 1900, and appeared to by the defendant October 23, 1900, and so there is no bar of our statute of limitations. Section 8, c. 561, Act March 3, 1891, 26 Stat. 1099 (IT. S. Oomp. St. 1901, p. 1.521), does not apply. It refers only to suits by the United States government to vacate and annul patents. Complainants are entitled each to one-fourth interest in the land, and to partition as prayed by them, and it is so decreed here, and the cause is Reversed and remanded for proper proceedings to partite.