Webster v. Luther

50 Minn. 77 | Minn. | 1892

Gilfillan, C. J.

This is the case of a right to make an additional entry of lands given to a soldier homesteader under U. S. Rev. Stat. § 2306, being section 2 of the act of April 4, 1872, entitled “An act to enable honorably discharged soldiers and sailors, their widows and orphan children, to acquire homesteads on the public lands'of the United States,” as that section was amended by the acts of June 8, 1872, and March 3, 1873. Taking the instrument executed by Mary A. Robertson, the person entitled to the additional entry, to James A. Boggs, to have been intended to be not merely a power of attorney to sell and convey the lands after they should be located, but also as an assignment of the right to make the entry, so that the power to convey was irrevocable, the ease presents directly the question, may such right to enter be assigned so as to bind the parties? That the government is bound by such an assignment, so that the assignee may make the entry in his own name, is another question. The rulings of the land department seem to be uniform, to the effect that in administering its business it need take no account of such assignments.

That the right given by the section referred to is in the nature of property, whatever restrictions congress, from motives of policy, may have put upon it, cannot be doubted; and as such it is subject to the full power of the owner to dispose of it, unless that power is expressly or impliedly limited. The general homestead law (Act May 20, 1862) does not expressly prohibit alienation before the patent shall issue, but its requirements in respect to residence and cultivation, and the making of proofs and affidavits, are such as to compel the conclusion that, until the application for the patent is allowed, the right given by it shall be inalienable. The homesteader cannot, without perjury, make, after alienation, the affidavit required of him upon such application. Section 1 of the act of 1872 requires compliance with the provisions of the act of 1862, except as therein modified. Section 2 reads: “That any person entitled, under the provisions of the foregoing section, to enter a homestead, who may have heretofore entered under the homestead laws a quantity of land less than one hundred and sixty acres, shall be permitted to enter, under the provisions of this act, so much land as, when added to the quantity previously entered, shall not exceed one hundred and sixty acres.” This act was amended by the act of June 8, 1872, the only change in section 2 being the insertion after the words “so much land” of the words “contiguous to the tract embraced in the first entry.” Why this change was made, unless to make the section harmonize with the clause, “to enter under the provisions of this act,” it is difficult to conceive. At any rate, after that amendment, and possibly before it, with the clause just quoted in the section, the right given would, in nine cases out of ten, be useless, as the home.steader might not be able to comply with the requirements of the .section. By the act of March 3, 1873, the section was again .amended by striking out the words “under the provisions of this .act,” and the words “contiguous to the tract embraced in the first • entry.” As so amended, the section certainly permitted what for ■ convenience we may call the “additional right” to be located upon .any unappropriated public lands, wherever situated; and as so .amended there was nothing in it to indicate that, in respect to the .additional right, compliance with the provisions of section 1 was required. The striking out of the words “under the provisions of this act” is significant. Apparently, at least, those words made it necessary to do, in order to secure the additional land, what is required, by section 1 to secure the first or original entry, to wit, compliance with the provisions, except as modified, of the act of 1862. The retention of those words might have gone to defeat the purpose of congress to permit the “additional right” to be located on any unappropriated lands, however distant from the first entry. We think the clauses were struck out, so that the right to the additional land should depend solely on the right to make ap entry .under section 1, and the fact that the first entry was of less than one hundred and sixty acres, and so that, those conditions existing, nothing should be required of the homesteader beyond claiming the additional right. There being nothing in the terms of the section requiring the things specified in the act of 1862, to wit, the making of proofs, affidavits, etc., is there anything in the policy of the government in respect to the subject-matters of the various acts referred to which raises the presumption that congress intended' any of the requirements of the act of 1862 to apply to the “additional right?”, or intended the feature of inalienability impressed on the homestead entered under the act of 1862, or the first section of the act of 1873, should attach to the “additional right?”

• The purpose of-congress in giving the right to enter and acquire a homestead under the act of 1862, and the first section of the act of 1872, was not merely to confer a benefaction on the citizen, or discharged soldier or sailor. There was also the purpose to secure, so far as possible, a bona ficle settler on the public lands, to promote the peopling and cultivation of those lands. It was to prevent the evasion of this result that the person applying to enter a homestead is required to make affidavit that the application is made for his or her exclusive use and benefit, for' the purpose of actual settlement and cultivation, and not, either directly or indirectly, for the use or benefit of any other person, and on applying for the patent to make proof of residence on and cultivation of the land for five years, and an affidavit that no part of the land has been alienated; and it is provided that the land shall not be taken for debts, and that upon any change of residence or abandonment of the land for more than six months the lands shall revert. The end in view was the peopling of vacant public lands with settlers owning and cultivating their own homes.

(Opinion published. 53 N. W. Rep. 371.)

To secure settlers or require residence or cultivation was no part of the end in view in giving the additional right under the section as amended in 1873. No residence on or cultivation of the land as a condition of securing the additional right was intended. It was a mere gratuity. There was no other purpose but to give it as a sort of compensation for the person’s failure to get the full quota of one hundred and sixty acres by his first homestead entry. There is no reason to suppose it was intended to hamper the gift with conditions that would lessen its value, nor that it was intended to be made in any but the most advantageous form to the donee. After the right was conferred, it was immaterial to the government whether the original donee should continue to hold it, or should transfer it to another. Or, rather, as policy requires the peopling of the vacant public lands, and as it could not' be expected or desired that the homesteader should abandon his first entry to settle upon the additional land, it would be more for the interest of the government that he should be able to assign his additional right, so that it might come to be held by some one who would settle upon the lands.

We are therefore of opinion that, as between the parties, an assignment of the right is valid.

Judgment affirmed.