The trial in this case was to the court. No request was made under section 297 of the civil code, for a separate statement of conclusions of facts from those of law, and we cannot therefore see upon what the determination of the court proceeded, nor well review the several propositions discussed by counsel. Still, from the record brought here, I cannot discover how any other conclusion could have been reached than that arrived at.
The alleged contract, to enforce which, against the defendant, this action was brought, purports to be the mutual agreement of the subscribers thereto, upon “consideration of the mutual agreements and covenants therein expressed.” What are these agreements and covenants? Among them cannot be “the express condition that the capitol and other public buildings be located at, or adjoining, Lancaster.” The location of the capitol is a state matter, a subject of public concern with which none of the subscribers had anything to do, or which they could in any way lawfully influence. More than this, none of the subscribers undertook to build, or to have built, the capitol at Lancaster. There is no mutuality in this.
The only other suggestion of a foundation is the promise of the other subscribers. This will not bear
Then, again, how, or upon what basis is the fortunate grantee to be determined? The writing leaves this very uncertain. It says the subscribers shall convey to “ such of the parties hereto as may be agreed upon by a majority.” When and where is that agreement to be made?' Shall it be upon meeting of all, or by a majority upon notice to all? It seems that the mere chance of the-defendant, resting upon no rule or basis as disclosed by the writing, was subject to be destroyed by the arbitrary disposition of a majority. Whether this majority may have reached their conclusions by throw of dice, or with reference to some right or order, would appear to be a, matter of no great consequence. The fact that they did agree that Merrille should convey to Dawson, it is insisted, is sufficient. How the court found as to the fact that a majority did agree, we are uninformed in the absence of special finding. Did it appear, however, that the court found against the plaintiff, I should be slow to interfere with its finding. Where the plaintiff’s right depends-upon the decision of a majority, the court might well
Conceding tbat tbe agreement shows, or by tbe introduction of other evidence can be made to show, all tbat is claimed by tbe plaintiff, to-wit: tbat, in order to secure tbe location of tbe state capital at Lancaster, around which place tbe several subscribers were tbe owners of lands like to be enhanced in value by such location, tbe parties agreed to donate to tbe state certain lands, and to such of tbe parties whose lands might be taken for capital purposes more than they should in fairness contribute, still, tbe plaintiff in prosecuting bis action is opposed by other insuperable propositions of law. Tbe act providing for tbe location of tbe capital and state buildings, makes tbe governor, secretary of state, and auditor, commissioners for tbe purpose of such location. On or before tbe 15th day of July, 1867, they were required on actual view, to select from tbe lands belonging to tbe state, within certain prescribed limits, a suitable site of not less than six hundred and forty acres in a body, due regard being bad to its accessibility from all parts of tbe state, and its general fitness for a capital. Laws of 1867, 52. Tbe state asked no donations, nor empowered tbe commissioners to receive any. Yery evident reasons suggest themselves for having tbe capital located on lands belong to tbe state. Tbe state owned large quantities of
Again, it is admitted that the lands in question were entered and settled upon by the defendant as a homestead under the laws of the United States, and upon which he had some years yet to live before he could obtain a patent for it from the government. The very admission shows that the defendant had no title in law, or right in equity, that he could convey. But, it is said, it was understood that the several tracts were to be conveyed as soon as the legal title should be acquired by the respective signers. This is not so said in the writing, nor is it consistent with that provision which says that “ said conveyances are to be executed immediately upon the location being announced by the commissioners.” To show a different agreement, or to modify that introduced as having been, entered into in writing, would be a violation of the most elementary rules. 1 Greenleaf Ev., Sec. 275. Pym v. Blackburn, 3 Summer’s Ves., 38. With more plausibility might the defendant contend that his agreement was to abandon his homestead right so that the party designated might enter as a pre-emptor or for the purpose of a homestead, than that the plaintiff could claim that he had bargained for years of toil, residence, and cultivation, by the defendant and his family, in order that a patent might be obtained which should be handed
However, let tbe plaintiff be indulged in tbe still further concession, that such was tbe understanding, be then is no better off. Such agreement is opposed to tbe spirit of the Homestead Act. Tbe act evidently proceeded from a desire to benefit tbe jwor man, and tbe man of limited means who might be desirous of possessing a home for himself and family. "While tbe government demands good faith and an honest purpose on tbe part of tbe applicant for its bounty, it protects him carefully in tbe attainment of bis object. Tbe person seeking to avail himself of tbe benefit of this law must make oath that tbe land entered is taken for tbe purpose of actual settlement, and that it is not directly, or indirectly, for tbe benefit of any other person or persons whatsoever. In applying for bis patent, after five years residence, be must again swear, among other things, that no part of tbe land has been alienated. Chap. 75, Acts and Res., 2d Sess. 37th Congress. More than this, no lands acquired under tbe act shall in any event become liable for tbe satisfaction of any debt contracted prior to tbe issuing of any patent therefor. But we are told that here was no alienation — simply an agreement to convey — and because there is no inhibition against agreeing to convey, such agreement must stand. It is true that there was no alienation in fact, for tbe very good reason that tbe defendant bad no title to convey. “ It is laid down as a general rule,” says Bacon, (Abr. Tit. Grants, D. 2,) “ that a man cannot grant or charge that which be hath not.” Any right of the plaintiff to a conveyance from tbe defendant, after receiving bis patent, relates back to and is founded upon the alleged agreement, when he bad no estate to convey, and when be was expressly forbidden to alien. Yet we are asked, by ingenious construction, to say that an applicant can, in
Judgment aeeirmed.