Mellison v. Allen

• Citation: 2 P. 97,30 Kan. 382
• Parties: GEORGE MELLISON, et al., v. CHARLES T. ALLEN
• Decision Date: 01 July 1883
• Court: United States State Supreme Court of Kansas

2 P. 97

30 Kan. 382

GEORGE MELLISON, et al., v. CHARLES T. ALLEN

Supreme Court of Kansas

July 1, 1883

Error from Saline District Court.

ACTION by Allen against Mellison and two others, to compel the specific performance of a contract to convey an undivided one-half interest in the northeast quarter of section 8 township 11, range 17, west of the sixth principal meridian. At the November Term, 1882, of the district court, the defendants' demurrer to plaintiff's petition was overruled, and judgment was rendered for plaintiff. Defendants allege error therein, and bring the case here. The facts appear in the opinion.

Judgment reversed and case remanded.

A. D Gilkeson, and Chas. A. Hiller, for plaintiffs in error.

W. P Montgomery, for defendant in error.

BREWER J. All the Justices concurring.

OPINION

BREWER, J.:

This was an action to compel the specific performance of a contract to convey real estate. A demurrer to the petition was overruled, and defendants allege error. The facts as disclosed by the petition are, that on August 6, 1878, George Mellison, one of the defendants, was occupying a tract of land, with the intention of obtaining title to it under the homestead laws of the United States. He contracted to sell the undivided half to plaintiff, received full payment, and executed a contract to convey by deed of general warranty within one year. He represented that he would and could prove up his homestead claim within one year, and would then, as by his contract, convey the interest sold to plaintiff. He did, in fact, prove up on the first of June, 1880, but then declined to convey, and this action was commenced.

It Will be perceived that the single question is, whether the contract to convey, made prior to the ripening of his homestead right and the proving-up of his homestead claim was a legal and valid contract, and one whose specific performance equity will enforce. The validity of this contract depends primarily on the laws of the United States. By section 2298, Revised Statutes of the United States, no person is allowed to homestead more than one quarter-section. Sections 2289, 2290 and 2291 prescribe who may homestead, and the conditions and mode of procedure. On making entry at the land office, the party is required to make affidavit that the application is made for his 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. The certificate or patent will not issue until the expiration of five years from the date of such entry, and then only upon proof of occupation or cultivation for the term of five years, and upon affidavit that no part of such land has been alienated, except as provided in section 2288. This last section authorizes a transfer for churches, cemeteries and school purposes, or for the right-of-way of railroads. Thus it will be perceived that the law contemplates a five-years continuous, occupation by the homesteader, with no alienation of interest, except for the named purposes. It is true these sections contain no express prohibition on alienation, and no declaration of forfeiture or penalty in case of alienation; and yet the homestead right cannot be perfected, in case of alienation, without perjury by the homesteader. The statute respecting preemption, section 2262, is more stringent and express. For that requires the preemptor to make oath that he has not directly or indirectly made any agreement or contract in any way or manner with any person whatsoever, by which the title he is seeking to acquire should inure in whole or in part to any person except himself; and also provides that any person swearing falsely in such oath shall forfeit the money which he may have paid for such land, and all right and title to the same; and further, that any grant or conveyance...