74 Minn. 134 | Minn. | 1898
The material allegations of the complaint herein are: On March 2, 1863, Michael O. D. Hayes duly filed and settled upon 80 acres of government land in Wright county, in accordance with the homestead laws of the United States, and continued to reside thereon to the time of his death in October, 1868. He complied during such time with all of the provisions of the homestead law as to residence thereon, and as to cultivation and improvement thereof, and during all such time his wife, Honora Hayes, lived with him on the land
The contention of defendants’ counsel in support of the demurrer is that Hayes having entered upon the land and lived on it for more than five years, and having during that time performed all things required by law to be done by him, he was at the time of his death the owner of the land, and vested with an absolute right to the patent, and having died so seised in fee of the land, although final proof had not been made, the United States held the legal title in trust for him, and therefore the patent was legally is
1. The first question, then, is: Was the widow of Hayes, on the facts as alleged in the complaint, legally entitled to make the final proofs under her husband’s entry of the land, and receive a patent thereof? To entitle a homesteader to a patent, he must reside upon, cultivate and improve his claim for five years, and within two years thereafter he must make final proofs of the fact, and an affidavit that no part of the land has been alienated except as provided by law, establish his citizenship and take the oath of allegiance. Until he so complies with the law, his interest in the land is inchoate only; but after he has thus complied his interest becomes vested, and he is the equitable owner of the land. If he thereafter dies, and before the patent issues, the land descends to his heirs or devisees.
But if, as in this case, he dies before he has made the final proofs, the homestead law has made provision for making them, and directs to whom the patent shall issue. R. S. (U. S.) § 2291, provides:
“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 such time, or at any time within two years thereafter, the person making such entry; or if he be dead, his widow; or in the case of her death, his heirs or devisee; or in case of a widow making such entry, her heirs or devisee, in case of her death, proves by two credible witnesses that he, she or they have resided upon or cultivated the same for the term of five years immediately succeeding the time of filing the affidavit, and makes affidavit that no part of such land has been alienated, except as provided in section 2288, and that he, she or they will bear true allegiance to the government of the United States; then, in such case, he, she or they, if at that time citizens of the United States, shall be entitled to a patent as in other cases provided by law.”
These provisions are clear and specific. The law seems to recognize the fact that the equity of the widow to a patent for the land she and her husband together occupied, cultivated and improved is,
The widow, in this case, having made the final proofs, which were accepted by the land officers as sufficient, and complied with all of the other provisions of section 2291, became the equitable owner of the land, and was entitled to the patent therefor. See Coleman v. McCormick, 37 Minn. 179, 33 N. W. 556; Schoolfield v. Houle, 13 Colo. 394, 22 Pac. 781; Strain v. Hostotlas, 17 L. D. 293.
The case of Bernier v. Bernier, 147 U. S. 242, 13 Sup. Ct. 244, relied on by defendants, is not in point. In that case the homesteader left no widow, and the question was whether, under the provisions of section 2292, his minor children were entitled to the patent, to the exclusion of those who had attained their majority.
2. The claim of the defendants that there can' be no correction of the patent in this case or any other may be conceded. The widow in this case, after she made her proofs and complied in all things with the law, became the equitable owner of the land, and thereafter the United States held the legal title in trust for her. But by mistake the patent was illegally issued to the heirs of her deceased husband. They were chargeable with notice of her equitable title, as she was in the continuous possession of the land, and they paid nothing for the patent; hence they took and held the legal title in trust for her. A court of equity will enforce this trust according to the rights of the parties. Roy v. Duluth & Iron Range R. Co., 69 Minn. 547, 72 N. W. 794.
3. It is further claimed that the widow of the homesteader would have been estopped if she had lived, and those claiming under her are estopped, from now questioning the patent, by reason of her acquiescence and laches. The claim is untenable, for it does not
But, this aside, she was in the exclusive and peaceable possession of the land, claiming to be the owner in fee thereof. No one questioned her title, or attempted to disturb her possession, which was notice to all persons of her rights. Laches will not be imputed to one in the peaceable possession of land under an equitable title for delay in resorting to a court of equity for protection against the legal title. Backus v. Burke, 63 Minn. 272, 65 N. W. 459; Ruckman v. Cory, 129 U. S. 387, 9 Sup. Ct. 316; Baker v. Kelley, 11 Minn. 358 (480); 12 Am. & Eng. Enc. 605; 2 Pomeroy, Eq. Jur. § 817.
The complaint states facts sufficient to constitute a cause of action.
Order affirmed.