Pourier v. Barnes

NELSON, District Judge, (after stating the facts.) Conceding that the instrument executed by Louisa Dryer to Boggs gives, not [958] only the right to sell and convey the land after location, hut includes also an assignment of the right to enter the additional land under section 2306, the question arises, is that right assignable? The answer must be that it is, unless the power so to do is expressly or impliedly restrained. The original homestead act of May 20, 1862, required occupation, an oath of exclusive use and benefit at the time of entry, and of nonalienation at the time of final proof. April 4, 1872, an act was passed, the second section of which gave additional homesteads to soldiers, and as first enacted it seemed to indicate that the entry of the additional homestead must he made in accordance with the provisions of the act of 1862, above referred to. This section was amended June 8, 1872, and subsequently March 3, 1873; and if we look at the history of this legislation, and examine the original act and amendments thereto, (contained in 17 Stat. 49, 333, 605,) it seems clear that the right to enter additional land was given to the soldier as a gratuity. As said by Judge Brewer iu Mullen v. Wine, 26 Fed. Rep. 206. “Services already rendered during the war are the consideration. The homestead duty of occupation or improvement has already been performed. It amounts simply to this: In view of what has been done, congress makes this gift. It places no restriction on the donee, but leaves him to use the gift as he sees fit.” I think the amendment of March 3, 1873, which is section 2306, Rev. St. U. S., granted the absolute right to the extra land, to he taken, not necessarily contiguous to the original homestead, nor subject, to the restrictions of the homestead act, and was tantamount to the right formerly held by the holder of a land warrant. Nothing-had to he done to perfect it, and it was therefore the subject of sale. It seems to me that to ingraft the restrictions in the homestead act of 1862, as modified by the first section of the act of 1872, upon section 2306, would tend to defeat the legislative will, for the terms of that section are plain, and the rule established in such cases is that, where congress enacts a plain provision without limitation, no limitation can he imposed by the court. Counsel for defendant assert that the power of attorney to Boggs is in contravention of the laws of the United States, and is against public policy. It is difficult to see how that can be, in the absence of restrictive or prohibitory legislation. An individual owning property, or a right to property, necessarily has the power of alienation; and public policy rather favors the theory that a man may do what he chooses with his own, unhampered by restrictions or hindrances. As said by the supreme court of Wis* cousin in Knight v. Leary, 54 Wis. 459, 11 N. W. Rep. 600: “It is sufficient to say that the law does not favor restraints upon alienation, and nothing short of a positive provision to that effect will justify the court in holding that a statute imposes such restraints.” I find nothing in the case of Anderson v. Carkins, 135 U. S. 483, 10 Sup. Ct. Rep. 905, cited by counsel for defendant, conflicting with the view taken by me in this ease. There the question arose [959] under the homestead law proper, and the affidavits required by law seem to forbid alienation before the homestead title is perfected. Entertaining these views, without any further discussion of the question, I am of the opinion that the complainants are entitled to a decree. Let an order be entered accordingly. Mem. The several cases of Chippewa Company v. Amos L. Warner, Andreas M. Rutan, Herbert W. Coffin, Charles W. Piper, and Alfred F. Webster, defendants, are controlled by this decision, and a decree in each of those cases will be entered for the complainant.