Dale v. Griffith

Mayes, J., delivered the opinion of the court. In the case of Newkirk v. Marshall, 35 Kan. 77, 10 Pac. 571, it is held that: “Under the United States homestead laws, and by a compliance with them, a person entering a homestead, or in case of his death, his widow, or in case of the death of both, his heirs or devisees, obtain a vested right in the homestead at the expiration of five years from the entry thereof, and upon making proper proof are entitled to a patent for the land from the United States; and as soon as a person is entitled to a patent, although it may not yet have been issued, and may not be issued for years, he or she may contract and be contracted with concerning the land, or sell it or convey the same, precisely the-same as though the patent had already been issued. Equity, ini order to do justice and to protect the rights of parties and to> prevent frauds, will generally consider that as having been done which ought to be done; and in order to protect the rights of all parties, where a patent-is due, but has not yet been issued,, equity will consider such rights precisely the same as though, the patent had in fact been issued on the very first day on which it ought to have been issued.” This case falls precisely within the rule laid down above. The final proof was made., on the 29th day of December, 1899, after five years’ residence and before the expiration of seven years, [578] such being the requirement of section 2291, Rev. St. H. S. (H. S. Comp. St. 1901, p. 1390). Tbe proof was not forwarded because of a failure to pay tbe necessary fees; but on that date tbe proof entitling Burke Hall to tbe patent was made, and bis right became a vested right. On the 30th day of November, 1901, nearly two years after making final proof, but before same had been forwarded, the land was sold to H. T. Griffith, and his deed to same duly recorded. Burke Hall had a perfect right under the facts of this case, to sell to Griffith, and if he had the right to sell Griffith could protect his title by recording same in the manner required by law, and, having done so it was notice to the world. It would be absurd to hold that the sale of the land in question was a valid sale, and yet hold that the purchaser had no way to protect his title. When Griffith recorded his deed it was notice to the world. The case of Bernardy v. Colonial Mortgage Company, 17 S. D. 637, 98 N. W. 166, 106 Am. St. Rep. 791, is directly in point. Affirmed.