Whitcomb v. Provost

Winslow, J. The defendant admitted that, under the decision of the supreme court of the United States in Wis. Cent. R. Co. v. Forsythe, 159 U. S. 46, the plaintiffs had the-title to the land in question, and must recover because the same was within the place limits of the grant to the Wisconsin Central Railroad, and hence not open to homestead entry in 1891. The defendant claimed to recover for his improvements, however, under sec. 3096, R. S. 1878, and the only question in this case is whether such a recovery can be sustained. That section provides as follows: “ In every case-where a recovery shall be had of any land, on which the party in possession, or those under whom he claims, while holding adversely by color of title asserted in good faith, founded on descent or any written instrument, shall have282 made permanent and valuable improvements, or shall have paid taxes assessed, such party, for himself and for the benefit of those under whom he claims, shall be entitled to have from the plaintiff, his heirs or assigns, if he insist upon his recovery, the value of such improvements at the time the verdict or decision against him is given, and the amount paid for taxes, with interest from the date of the payment, to be assessed and recovered as hereinafter provided, and for the payment' thereof shall have a lien on the real estate so recovered.” It is apparent that the defendant, in order to recover for his improvements in the present case, must show the concurrence of four conditions, namely: (1) Adverse holding, (2) by color of title, (3) asserted in good faith, and (4) founded on some written instrument. Failure in any one of these conditions will defeat his claim. It seems evident that these conditions are not all present in this case. “ Color of title ” has been generally defined as “ that which in appearance is title, but which in reality is no title.” Wright v. Mattison, 18 How. 50; Edgerton v. Bird, 6 Wis. 527. Now, unless a holding under a valid certificate of homestead entry is in fact a holding under title, a holding under an invalid certificate of homestead entry cannot be a holding under “ color of title.” If a valid certificate is not title, an invalid certificate cannot be appearance of title. The supreme court of the United States has recently held, after full consideration, that land entered as a homestead continues to be the property of the United States for five years following the entry, and until a patent is issued, and that the homesteader has no right to cut standing timber to sell, or any timber save such as is necessary to clear the land for cultivation and build, necessary buildings and fences, and may be criminally prosecuted if he cuts beyond such limitations. Shiver v. U. S. 159 U. S. 491; Stone v. U. S. 167 U. S. 178; Flint & P. M. R. Co. v. Gordon, 41 Mich. [283] 420. This principle seems to determine conclusively the question here. A man who mates a valid homestead entry has not the title to the land, and hence the man who makes an invalid homestead entry has not even the appearance of title. True, the homesteader may have rights as against third persons which he may enforce. Culbertson I. & W. P. Co. v. Olander, 51 Neb. 539; Pairier v. Comm’rs of Itasca Co. 68 Minn. 297; Red River & L. W. Co. v. Sture, 32 Minn. 95. Such rights are sometimes given to him by state laws. Whittaker v. Pendola, 78 Cal. 296. He may also have a right to carry out the conditions of his entry, and earn his patent. . But the question here is not whether he has rights in the land of some nature, or whether they may not be vested rights, but whether he has title. As said in Vilas v. Prince, 88 Fed. Rep. 682: “ The homesteader has a right to earn the land by residing upon and improving it, and that is the extent of his right. . . . It is always understood that such an entry is subject to be canceled by the land department in case the land is not subject to entry, as in this case.” There is no analogy between a certificate of homestead entry and a receiver’s certificate of purchase of public lands. This last is made evidence of title by our statutes (R. S. 1878, sec. 4165), and is held to convey all the substantial interest of the government in the land. Cawley v. Johnson, 21 Fed. Rep. 492. The consideration has been fully paid, and nothing remains to be done except to execute the patent. In a case of homestead entry, however, nothing has been paid for the land, and the homesteader simply has acquired a right to earn or buy it in the future. At most, the receipt amounts to nothing more than an executory contract to convey the land upon the performance of certain conditions. One who holds under an executory contract for the purchase of lands does not hold adversely, as against his vendor or [284] bis vendor’s grantee, until after full performance of the conditions of bis contract. Simpson v. Sneclode, 83 Wis. 201. So, in this respect also, the defendant fails to meet the requirements of the statute. The case seems to be a bard one, but, in any view which we have been able to take of it, we have been unable to see bow the'defendant can recover under the betterments statute. By the stipulation of facts, it appears that the defendant knew before bis entry that the lands which be entered were part of the “ Omaha land grant.” It seems very probable that be should have anticipated that bis claim to the land was liable to be disputed. By the Court.— That part of the judgment which is appealed from is reversed, and the action is remanded with directions to dismiss the defendant’s counterclaim.