delivered the opinion of the court.
This action involves the title to lots one and two, section eighteen, in township sixty-two, of range fourteen west, situated in St. Louis County, Minnesota.
At the trial below, the plaintiff Webster read in evidence, without objection —
1. The application of Mary Robertson, widow of James A. Robertson, deceased, of Benton County, dated April 7, 1887, (together with the receipt of the register of the local land office showing the payment of the fee and commissions рrescribed by law,) to enter the lands here in dispute, under section 2306 of the Revised Statutes, granting
additional
lands to soldiers and sailors who served in the war of the rebellion. 2. The receipt of the proper land office, dated April 7,1887, showing the payment in full of the balance required by law for the entry of the above lots, under section 2291 of the Revised Statutes of the United States. 3. A patent from the United States to Mary A. Robertson for these lands, issued September 21,1888, reсorded February 11, 1889, in the office of the register of deeds in St. Louis County, Minnesota, and purporting to have been issued pursuant to the act of Congress, approved May 20,1862, “ to secure homesteads to actual settlers on the public domain,” 12 Stat. 392, c. 75, and the acts supplemental thereto. This patent recited that the claim of the patentee to the lots in controversy had been established and duly consummated in conformity to law. 4. A quitclаim deed of bargain and sale of these premises
The defendants read in evidence a power of attorney, dated April 28, 1880, and duly recorded April 8,1887, from Mary A. Robertson to James A. Boggs. This instrument authorized and empowered Boggs, as attorney for his principal, “to sell, upon such terms as to him shall seem meet,” any lands which the рrincipal then owned, either in law or equity, and obtained by her as “ an additional homestead ” under the provisions of section 2306 of the Revised Statutes; to sell any such lands as she might thereafter acquire under said acts; to receive the purchase money or other consideration therefor, and to deliver in the name of the principal such deeds or other assurance in the law therefor as to the agent seemed meet and necessary. It contained these additional clauses: “ And my said attorney is hereby authorized to sell said lands, or my interest therein, and to make any contract in relation thereto which I might make if present, and to receive for his own use and benefit any moneys or other property the proceeds of the sale of said lands, or any interest therein, or arising from any contract in relation thereto, or received or recovered fоr any injury thereto, and I hereby release to my said attorney all claim to any of the proceeds of any such sale, lease, contract or damages. And I further authorize my said attorney to appoint a substitute or substitutes to perform any of the foregoing powers, hereby ratifying and confirming all that my said attorney or his substitute may lawfully do or cause to be done by virtue of these presents.”
The admission of this power of attorney in evidencе was objected to by the plaintiff upon the ground, among others, that it tended to prove a transaction in fraud of and in contravention of the laws of the United States, and that upon its face it was contrary to law, against public polioy, fraudulent and void. This objection was overruled and the plaintiff excepted.
The defendants next read in evidence: 1. Two warranty deeds, each for an undivided one half of these lands, from Mary A. Robertson, by Jаmes A. Boggs, her attorney in
The court adjudged that the title was in the defendants, freed from any claim of the plaintiff.
The question before us is whether the instrument of writing given to Boggs by Mary A. Bobertsоn, under date of April 28, 1880, and which authorized the former to sell upon such terms as he deemed meet, and to convey the title to, and to receive for his own use and benefit the proceeds of the sale •of, any lands obtained by the latter as an “additional homestead” under section 2306 of the Bevised Statutes, was consistent with the acts of Congress relating to such matters. This is a question merely of statutory construction, and is within a very narrow compаss.
By the act of May 8, 1862, 12 Stat. 392, c. 75, certain persons were given the right, under specified conditions, to enter one quarter section or a less quantity of unappropriated public lands. The sections of that act, so far as they bear upon the present case, were preserved in sections 2289, 2290 and 2291 of the Bevised Statutes, which are as follows:
“ Sec. 2289. Every person who is the head of a family or who has arrived at the age of twenty-one years, and is a citizen of the United States, or who has filed his declaration of intention to become such, as required by the naturalization laws, shall be entitled to enter one quarter section or a less quantity of unappropriated public lands, upon which such person may have filed a preemption claim, or which may, at the time the application is made, be subject to preemption at one dollar and twenty-five cents рer acre; or eighty acres or less of such unappropriated lands, at two dollars and fifty cents •per acre, to be located in a body, in conformity to the legal subdivisions of the public lands, and after the same have been surveyed. And every person owning and residing on land may, under the provisions of this section, enter other land lying contiguous to his land, which shall not, with the
“Sec. 2290. The person applying for the benefit of the preceding section shall, upon application to the register of the land office in which he is about to make such entry, make affidavit before the register or receiver that he is the head of a family, or is twenty-one years or more of age, or has performed service in the army or navy of the United States, and that such application is made for his exclusive use and benefit, and that his entry is made for the purpose of actual settlement and cultivation, and not either directly or indirectly for the use or benefit of any other person; and upon filing such affidavit with the register or receiver, on payment of five dollars when the entry is of not more than eighty acres, and on payment of ten dollars when the entry is for more than eighty acres, he shall thereupon be permitted to enter thе amount of land specified.
“Sec. 2291. No certificate, however, shall be given, or patent issued therefor, until the expiration of five years from the date of such entry; and if at the expiration of such time, or at any time within two years thereafter, the person making such entry; or if he be dead, his widow; or in case of her death, his heirs or devisee; or in case of a widow making such entry, her heirs or devisee, in case of her death, proves by two сredible witnesses that he, she or they have resided upon or cultivated the same for the term of five years immediately succeeding the time of filing the affidavit, and makes affidavit that no part of such land has been alienated, except as provided in section twenty-two hundred and eighty-eight, and that he, she or they will bear true allegiance to the government of the United States; then, in such case, he, she or they, if at that time citizens of the United States, shall be entitled to a patent, as in other cases provided by law. That the proof of residence, occupation or cultivation, the affidavit of non-alienation, and the oath of allegiance, required to be made by section twenty-two hundred and ninety-one of the Revised Statutes, may be made before the judge, or, in his absence, before the olerk, of any court of record of the county
On the 4th day of April, 1872, Congress passed an act 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.” 17 Stat. 49, c. 85. The second section of that act declared that any person entitled under the provisions of the first 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 section, it will be observed, did not require that the additional land allowed to be entered should adjoin or be contiguous to the land originally entered.
But by the act of June 8, c. 338, 1872, 17 Stat. 333, the act of April 4, 1872, was amended, no substantial change, however, being made in the first section of the last named act. In place of the second section of the act of April 4,1872, the following section was substituted : “ That any person entitled, under the provisions of the foregoing section, to enter a home
But the policy indicated by the second section of the act of June 8,1872, was soon reversed. For, by the act of March 3, 1S73,17 Stat. 605, c. 274, section two of the act of June 8, 1872, was amended so as to read as follows: “ That any person entitled under the provisions of the foregoing sections to enter a homestead, who may have heretofore entered under the homestead laws a quantity of land lеss than one hundred and sixty acres, shall be permitted to enter so much land as, when added to the quantity previously entered, shall not exceed one hundred and sixty acres.” This act, it will be observed, omitted the words “under the provisions of this act” and the words “contiguous to the tract embraced in the first entry,” that were in the previous act. The effect and, as is manifest, the object of the last act, were to eliminate from the legislation of Congress allоwing additional lands to those who had entered less than one hundred and sixty acres under the homestead laws, the requirement that the additional lands should be contiguous to those originally entered.
This view is not at all affected by the revision, for the sections under which the lands in question were entered make no substantial change in the previous law. Those sections are as follows:
“Sec. 2304. Every private soldier and officer who has served in the Army of the Unitеd States during the recent rebellion, for ninety days, and who was honorably discharged, and has remained loyal 'to the government, including the troops mustered into the service of the United States by virtue of the third section of an act approved February
“Seo. 2305. The time which the homestead settler has served in the Army, Navy or Marine Corps shall be deducted from the time heretofore required to perfect title, or if discharged on account of wounds received or disability incurred in the line of duty, then the term of enlistment shall be deducted from the time heretofore required to perfect title •without reference to the length of time he may have served; ■but no patent shall issue to any homestead settler who has not resided upon, improved and cultivated his homestead for a period of at least one year after he shall have commenced his improvements.
“ Sec. 2306. Every person entitled, under the provisions of section twenty-three hundred and four, 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 so much land as, when added to the quantity previously entered, shall not exceed one hundred and sixty acres.”
As the lands in controversy are not contiguous to those originally entered, there would be some ground to contend that the entry made by Mrs. Robertson in 1887 was invalid, but for the omission
ex industria
from the statute of the
If, then, Congress did not burden the right to additional lands with the condition that they should be contiguous to those originally entered, it would seem necessarily to follow that the grant of additional lands was without restrictions, and, consequently, there was no purpose to interfere with the disposition by the homesteader of such additional lands, or of his interest in them, in any mode he deemed proper or that might be adopted in respect of other property owned by him. Any other construction of section 2306 would, we apprehend, defeat' the purpose that Congress had in view when it gave additional lands to those who had made entries under the homestead laws of less than one hundred and sixty acres. We cannot see that, any sound policy could have been sub-served by restricting the bounty of Congress to those who were able to find additional lands contiguous to those previously entered by them; and we entirely concur in the views expressed by the Supreme Court of Minnesota. Speaking by Chief Justice Gilfillan, in the present case, it said: “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 entеred under the act of 1862, or the first section of the act of 1872, 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 fide
settler on the public lands, to promote the peopling and cultivation of those lands.
Subsequently, the same questions were carefully examined in the Circuit Court of Appeals for the Eighth Circuit in
Barnes
v.
Poirier.,
27 U. S. App. 500. In that case it was held that the right given by section 2306 of the Revised
Much stress is placed by the plaintiff in error upon the
Itresults that the judgment below must be and is
Affirmed.