32 Kan. 446 | Kan. | 1884
The opinion of the court was delivered by
The plaintiffs, by their petition in the court below, allege that about the first day of April, 1870, William Appleton, under the provisions of the United States homestead law, passed May 20, 1862, entered the northeast quarter of section 35, in township 6 south, of range 10 west, in the district of lands subject to sale at Kirwin, Kansas; that pursuant
The defendant demurred on the grounds—
“1. That the said plaintiffs have not the legal capacity to sue in this action.
“ 2. That there is a defect of parties to this action.
“3. That this court has not jurisdiction to try the matters and things set forth in said amended petition.
“4. That the matters and things in said amended petition set forth are not sufficient to constitute a cause of action against the defendant.”
The court below sustained the demurrer, and rendered judgment against the plaintiffs for costs of suit. The plaintiffs make their bill of exceptions, and bring their petition in error in this court.
In actions for the recovery of the possession of real property, it is not ordinarily necessary that the plaintiff should state in his petition how his title was derived, but there is nothing in the statute that prevents him from so doing if he so desires. If the statement of his cause of action discloses :the fact that he has no legal or equitable title to the land claimed, and does not show some ground for the recovery of tjhe possession other than as the holder of the legal or equita
The plaintiffs, by their petition, claim to be the owners of the land, and to be entitled to the possession because of such ownership, but have shown that the United States has conveyed the title by patent to the heirs of William Appleton, deceased, and that they, and-not the plaintiffs, are the owners, and are presumed to be in the possession; and if not, that they are entitled to the possession, and for anything that appears, may not be in the actual possession by their lessee, or agents. At all events, the plaintiffs have not shown by their petition that they are entitled to the possession, but on the contrary have shown that they are not entitled to the possession, and have failed to make a case by their pleading.
Again, Appleton made the entry o.f the land in question about the first of April, 1870, and died April 15, 1874, and before a patent was issuable under the homestead law under which the entry was made.
These sections of the homestead law (U. S. Rev. Stat.) provide:
Sec. 2289: “That any person who is the head of a family, or who has arrived at the age of twenty-one years, and is a citizen of the United States, or has filed his declaration to become such, as required by the naturalization laws, shall be entitled to enter one quarter-section, or less quantity, of unappropriated lands,” etc.
Sec. 2290 provides the manner of making the entry.
Sec. 2291: “ That no certificate, however, shall be given or patent issued therefor until the expiration of five years from the date of such entry; and if at the expiration of that time, or at the expiration of two years thereafter, the person making such entry; or if he be dead his widow, or in case of her death his heirs or devisees,” on making proof “that he, she or they have resided upon or.cultivated .the land for the term of
The intention of this homestead law evidently is that an entry under it should be for the sole benefit of the person making it, if he should survive and continue in possession for five years from the date of the entry, but if he died before the expiration of five years, then that all the rights he had acquired in the land entered, by virtue of his entry and possession, should pass to and belong to his widow, if living, and if not, to his heirs, and that they should take the same right and interest in the'land as if they had made the original entry, and if they continue in possession until the end of fivfe years from the date of the entry, are entitled to a patent for the land.
The statutes provide who shall succeed to the rights of the person making the entry if he dies before his title is perfected by a patent, and prohibit him from making any disposition of any interest he may have in the land, or in any manner incumbering it.
Under this entry by Appleton, and because of the continuous possession of the land by himself and. his heirs for five years, a patent was due' and issuable by the United States, and was issued to these heirs. This patent is conclusive evidence that, all of the provisions of the statute had been complied with by Appleton and his heirs; and it transferred to these heirs the title to the land, which, so far as is shown by the petition, they still hold. Appleton had no interest in the land that could pass by his will, and the plaintiffs took no title to or interest in the land under the will as executors or otherwise. Section 2269 of U. S. Eev. Stat., which is as follows: “No lands acquired under the provisions of this chapter shall in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor,” confirms the construction of the statutes as hereinbefore expressed.
We think the petition does not state a cause of .action, and
