delivered the opinion of the court.
This was an action of ejectment. The plaintiff claimed title by virtue of a patent from the United States, dated the 3d day of November, 1857. Thе defendants claimed the same lands (situate in Pettis county) by entry under two duplicate receipts of the receiver of the land office for the proper district, dated September 25th, 1854, in the name of ¥m. H. Campbell. It was proved that Campbell, at the time of the entry, was a minor, under twenty-one years of age; that he had taken possession of the land and made some improvements thereоn, and that his right to make the entry had been contested by the plaintiff before the Commissioner of the General Land Office on the ground thаt he was a minor, and- not entitled under the act of Congress to make the entry; and that for that reason the Commissioner had directed the entry to be set aside and cancelled, and that the plaintiff should be permitted to enter the land. The defendant’s entry was accordingly cancelled, and the plaintiff thereupon entered the land, and received the patent.
The third section of the act of Congress, entitled “ An act to graduate and reduce the price of the public lands to actual settlers and cultivators,” approved August 4th, 1854, (10 U. S. Stat. p. 574,) provided “ that any person applying to enter any of the aforesaid lands shall be required to make affidavit before the register or receiver of the proper land office, that he or she enters the same for his or her own use, and for the purpose'of actual settlement and cultivation, or for the use of an adjoining farm or plantation owned or occupied by him or herself, and, together with said entry, he
The act evidently contemplates persons who are at least sui juris, and capable of acting and contracting for themselves, and not persons who are, like married women and minors, subject to the dominion of another, as thе husband or the father. He must be capable of entering the land for his own use, and for the purpose of actual settlement and cultivation. It appears to have been one object of the act to encourage actual settlers and cultivators. It is obvious that these provisions did not contemplate minor children any more than married women. It is plain that to allow the head оf a family to make one entry for himself, another for his wife, and another for each one of his minor children, would be to extend the operation of the act beyond the intention of Congress. We need not go so far as to say that no person whatever, under thе age of twenty-one years, could be allowed to make an entry under the act. A minor may become completely emancipated from the parental control before arriving at that age, and might be capable of fulfilling all the requisites of the law. There is no proof that such was the case here.
Here the Commissioner of the General Land Office, upon an investigation оf the matter, decided that this party did not come within the purview of the act, and that his entry was not made in conformity with its provisions, but was an еvasion of the spirit and intent of the law. We are now asked to declare that this officer went beyond his powers, and acted without authority of law. This is not made to appear by anything contained in this record. It is proved only that he was a minor. It is not shown that he was capable of acting for himself as a person sui juris, nor that he came within the purview of the act by any construction
We are of the opinion, therefore, that the court erred in giving the instructiоns which were given for the defendant, and in refusing the second instruction asked for by the plaintiff.
It appears further, that after the causе had been tried and submitted to the court, and taken under advisement until the ensuing term, the defendants were allowed to file an amended аnswer, at that term, introducing new matter of defence, and stating a case for equitable relief, and then proceeded to givе further instructions, and to find a verdict and give judgment without any new trial or hearing of the case.
A motion to strike out this amended answer was overruled, and an exception taken. We think such a proceeding entirely erroneous. The amendments went far beyond what
A part of this amended answer was grounded upon the act of Congress of the 3d of March, 1857, entitled “ An act to confirm certain entries оf land therein named,” which had been made under the graduation act of 1854. This dct contained a- proviso “ that this act shall not be so construed as to confirm any of said entries which have heretofore been annulled and vacated by said Commissioner on account of frauds, evasion of laws, or other special cause.” Upon the evidence in this case we are of opinion that the defendants’ entries came within the exceptions contained in this proviso, and that they were not confirmed by this act of Congress. They had been annulled and vacated for the reason' that they had been made in evasion of law.
The judgment will be reversed and the cause remanded.