109 Ala. 322 | Ala. | 1895
In the case' in hand, the proof showed, as stated in the abstract, that the consideration of the note sued on was, “A United States government homestead certificate for 160 acres of land in Jackson county, issued by the register of the United States.land office at Huntsville, Alabama, to Robert R. Long, showing his entry of said land; and also whatever interest plaintiff might have in said land.” Plaintiff became Long’s security for a fine and costs, and Long placed said certificate in plaintiff’s possession with the agreement that if said plaintiff had said fine and costs to pay, the certificate was to be his, and Long was to turn the land over to him. Plaintiff had to pay said fine and costs, and Long abandoned the land and left the county. Defendant’s daughter, Hattie, desired to contest or have Long’s entry set aside, and enter the same for herself. Defendant was willing to buy the certificate, provided it could be used in re-entering the land. Plaintiff and defendant’s-wife and daughter went to Scottsboro and consulted an attorney, and were-advised by him that they could use the certificate; and, on returning home, the note sued on was executed by all three of them, as previously agreed on, for $45.50. Immediately after the purchase of the certificate, the daughter, Hattie, set up a contest against Long’s entry, and it was sustained, and she was allowed to enter the land, and went into posses
From the foregoing statement of facts, it manifestly appears that Long was a homesteader, and not a preemptor, of public land; that all the right he had in tho premises, or could have, was under the homestead, as distinguished from the preemption law. When a party entitled to homestead has complied with the statutes on the subject, he acquires title as a gift from the government, whereas, one who acquires title under the preemption laws is a purchaser of the land, having - paid the government its price for the same. — Revised Statutes of U. S., Chap’s 4 and 5. Under the preemption law, section 2264, one may, by complying with its provisions, acquire title from the government as a preemptor. Under the homestead law, he must have resided on the land for'five years, immediately succeeding the time of filing’ the affidavit prescribed as preliminary to making an entry. — §§ 2290 and 2291. In eitheir case, as-a preemptor or homesteader, when he acquires a patent or a certificate therefor, on proofs made, he acquires a fee in the land, which he may alienate.
Long had not resided on the land for a sufficient length of time to perfect his entry. He abandoned it and the country. It is provided in the homestead law, that if, at any time after having filed the preliminary affidavit for entry, as required by said section 2290, and before the expiration of five years mentioned in section 2291, as the time after which the right becomes complete by a continuous residence on the land meantime, the entry-man has actually changed his residence, or abandoned the land for more than six. months at any timé, then and in that event, the land so entered shall revert to the government, — or, in other words,-the -right of the party
There was, therefore, absolutely no use in the defendants’ buying the paper from the plaintiff. It transferred nothing of value to them, no right to the land, and was of no avail in making the subsequent entry. Its surrender to the defendants by plaintiff caused no trouble, injury, inconvenience, prejudice or detriment to himself, and the note they gave to him for the paper was wanting in the least consideration. — Rutledge v. Townsend, 38 Ala. 716; Head v. Baldwin, 83 Ala. 134.
There remains no necessity to consider the plea of the illegality of the consideration, in the alleged attempted sale and purchase of a homestead right under federal statutes, before the entry was declared complete and a certificate or patent issued to the homesteader.
Affirmed.