81 Iowa 433 | Iowa | 1890
The land in controversy is situated an the east bank of the Missouri river. It appears from the evidence that the plaintiff homesteaded the whole tract on the fifteenth day of November, 1887. He took possession of the land in September, 1884, and made improvements thereon by building a house, stable, sheds and cribs, and fencing and clearing up the land. One John Kennedy afterwards made a-claim on part of the land, and lived upon it. The plaintiff advised the defendant that Kennedy desired to sell his claim, and, at the instance of plaintiff, the defendant bought Kennedy’s claim, and moved on the land. The plaintiff ássisted him in moving. Sparling has been in possession since that time. He built a house, and made other improvements. The evidence is quite clear that the plaintiff recognized the right of the defendant to the part of the land occupied by him to be the same as the right of the plaintiff to that part of which he had possession. The status of affairs so remained until the time of the entry. Both of the parties went to the United States land-office at Des Moines to enter their land, when it was discovered that, under the statutes of the United States, all the land had to be homesteaded by one person, or in a different shape from the way in which the parties themselves occupied it. The defendant claims that, to avoid the difficulty, it was agreed that Sweesey should enter the whole tract, and that, as soon as he procured the title, he would convey that part now in controversy to the
The question to be determined is, can the defendant enforce the agreement made at Des Moines? Or is he precluded from setting it up and claiming under it by the statutes of the United States? It is claimed that the case is within the rule announced by this court in Oaks v. Heaton, 44 Iowa, 116, and that the agreement made at the land-office was absolutely null and void. The rule in that case, as stated in the head-note, is as follows: “O. had pre-empted a quarter section of government land, and had made valuable improvements thereon, when he agreed with H. that, if the latter would take possession and perfect a title under the homestead act, he would relinquish his rights already acquired, and should receive, in consideration therefor, a deed to half of the land, when the title should be perfected. Held, that the agreement was in violation of the provisions of the homestead act of the United States, and could not be enforced.” The case at bar, however, is more nearly like Snow v. Flannery, 10 Iowa, 318. In that case as in this, the parties settled, upon the land before a survey was made by the government, and their respective claims were designated by themselves by claim lines, and both parties had equal claims when they appeared at the land-office to homestead the land, and it was discovered that, under the pre-emption laws, the land could not be entered in parts, but roust be entered as a whole; one of the parties must give
We think the decree of the district' court is right, and it is affirmed.
