101 Ala. 178 | Ala. | 1893
Lead Opinion
We do not think the present bill is open to the objection urged against it by the demurrers. It can not be said that the contract sought to be specifically enforced is violative of the public policy of the United States. We know of no statute, nor of any general policy deducible from the statutes of the Federal Government, which would authorize or admit of a distinction being made in favor of, or against, the right of any citizen to purchase public land. Had nothing been done by the respondent looking to the entry of the land in controversy as a home, the complainant could have purchased it under section 2357 of the Revised Statutes, for one dollar and twenty-five cents per acre. The effort to homestead it having failed, the land again became public in every sense, and purchasable by the complainant under that section. The Government had no interest and no policy to be subserved ha securing to the would-be homesteader a prior light to purchase as agaiiast the complainant, or any other citizen. No pre-emption or homestead right of the individual or policy of the Government is involved at all. The land, once purchased by aud patented to either the person who made the 'entry or to another, may be alienated in all respects as any other real property. Since the purchaser is not charged with any of the duties as to occupancy, cultivation and the like, which would' have been imposed upon him as a homesteader, and since the land itself has none of the exemptions from incumbrances and prior personal obligations which would attach to it as a homestead, it is a matter of no consequence to the Government or its policy that, even before the purch ase, a contract had been entered into on the part of the purchaser to convey it to another upon patent issuing. Every governmental purpose-would be equally conserved whether the purchaser intended, and did in fact continue to hold the land, or intended to convey and had made a contract to convey, and did in fact convey it to another. The only change in existing law effected by section 2 of the act of June 15, 1880, was to allow any purchaser who had made the payment on homestead entry required by Revased Statutes, § 2290, or any person to whom he had by written instrument attempted to transfer the rights conferred on him by such entry, a credit on the sum otherwise payable in purchase of the land to the amount paid on the
Rehearing
Rehearing.
On the application for a rehearing in this case, the fact that the land involved was not open to public sale at the time Cook acquired his patent from the Government is brought to the attention of the court. The opinion heretofore delivered, holding that the contract between complainant and Cook, by which the former supplied the money to purchase the land in the name of the latter, under the act of June 15, 1880, with the understanding that Cook should, on receiving a patent, convey the land to the complainant-, was not violative of public policy, proceded on the assumption and is based on the consideration that at that time the complainant, in his own right and without reference to Cook’s right under the act referred to, could have purchased the land from the United States. That assumption being unfounded, and that consideration being eliminated, the truth being that at the time in question only the person who had made entry of homestead and failed to perfect the same, or the person to whom such entryman had attempted in writing to transfer his inchoate homestead right, had a right of purchase at all, and then only under the act of 1880, the opinion fails of the support upon which it was rested, and must be withdrawn. It would seem to necessarily follow from the facts, that the land could not be pur
The judgment of reversal heretofore entered will, therefore, be set aside, and the decree sustaining demurrers to the bill be affirmed,
