31 Fla. 100 | Fla. | 1893
In this case a bill was filed in the Seventh Judicial Circuit for Dade county to enforce the specific per
Your orators further represent that their contract with respondent for the conveyance of said land was and is valid and binding contract in as much as said land was obtained by purchase as shown by the patent hereinbefore referred to, and said respondent never proved up or availed himself of any rights as a homestead settler, but bought in the land by cash purchase. Wherefore your orator says that the said respondent ought in good conscience comply with his agreement to deed to them said land, and should have done so upon receiving his receipt referred to in said bond, said receipt being hereto attached and marked ‘Ex. D.’
A our orators further represent that they have been in possession of said land since the date of said bond, but although frequently requested so to do, respondent has utterly failed and neglected to execute to your orator, the said Yalentine E. Jones, a deed to the said land, but has delayed and refused so to do upon frivolous pretexts, and has departed these parts and his. whereabouts is at present to your orators unknown. A letter of the said respondent written to the agent of your orator in this transaction is hereto attached and marked ‘Ex. Ed
The bill prays that respondent be decreed to make and deliver to Yalentine E. Jones a good and perfect deed to said land in conformity to his bond, and that.
After the filing of the bill, Yalentine E. Jones intermarried with J. Wilson McCrillis, and by order of court the bill was amended and suit directed to proceed in the name of Yalentine E. McCrillis, by her next friend S. H. Ray, and in the name of the husband McCrillis.
No service of subpoena was had on the respondent Copp, but publication, as provided by Chapter 3589, Acts of 1885, was made, citing him to appear and answer the bill at a specified time. Upon the showing that the publication had been made as jmovided by Chapter 3589, supra, a decree pro confesso was entered against the respondent. Subsequent to the entry of the decree pro confesso, the following decree dismissing the bill was made, viz: “This cause having come on to be further heard, and it appearing to the court that the bill of complaint and the exhibits thereto, that the relief therein prayed is not proper to be decreed in a court of equity, it is therefore ordered that complainant’s said bill of complaint be and the same is hereby dismissed with costs to said complainant to be taxed.” Complainants entered an appeal to this court from the decree dismissing the bill.
As gathered from the bill and exhibits, it appears that James W. Copp in June, A. D. 1879, made homestead entry No. 7228 upon the land in question, and on the 27th day of October, A. D. 1884, without furnishing to the U. S. land office any proof of residence
After the sale of the land and the execution of the foregoing bond, it appears that Oopp commuted for the land and obtained a patent for it by paying the government price under a statute of the United States passed the 15th day of June, A. D. 1880. The bill alleges ‘ ‘that failing or being unable to prove up on his homestead under the homestead law, respondent purchased the land from the government, as appears from the patent issued to the said James W. Oopp,” and that it appears therefrom that he “obtained title as a purchaser under the law of April 24th, 1820, and April 15th, 1880.” It appears 'from the land office receipt, a copy of which is attached to the bill, and to which reference is made, that Copp commuted under the act of June 15th, 1880, the second section of which reads as follows: “That persons who have heretofore under any of .the homestead laws entered lands properly subject to such entry, or persons to whom the right of those having so entered for homesteads, may have been attempted to be transferred by bona fide instrument in writing, may entitle themselves to said lands by paying the government-price therefor, and in no case less than one dollar and twenty-five cents per acre, and the amount heretofore paid the government upon said lands shall be taken
The Supreme Court of Nebraska decreed the specific performance of a contract entered into on the 16th day of December, A. I). 1876, between Joseph
While there is a departure in some of the state •courts from the view above announced, it is sustained by the prevailing opinion in a decided majority of •them. Mellison vs. Allen, 30 Kansas, 382; Weeks vs. White, 41 Kansas, 569; Cox vs. Donnelly, 34 Ark., 762; Nichols vs. Council, 51 Ark., 26; Dawson vs. Mer
Mrs. McCrillis ivas not the assignee of Copp prior to the passage of the act of Congress referred to, but -was the purchaser of the land embraced in the homestead entry long after the act was passed. Her statu* is that of an independent purchaser of the land, and not as assignee of Copp’s homestead right. She is not, however, a person entitled under the & ct to avail herself of the right to purchase from the Government the homestead of Copp, and to enforce the contract before us in her favor, would, in effect, secure to her this right before Copp had acquired any title to the property. The fact that the homesteader purchased in his name does not change the result, as he had at the time of the purchase, if the contract of sale be valid, parted with his interest in the land, and to enforce the contract would >
We deem it proper to mention another question apparent on this record, and that is, a specific performance of a contract is asked to be decreed on service by publication, without a personal appearance on the part of the respondent. Can' this be done ? We do not decide this question, as it does not become necessary.
The decree of the Circuit Court dismissing the bill affirmed. Ordered accordingly.