Nichols v. Council

• Decision Date: 20 October 1888
• Parties: NICHOLS v. COUNCIL
• Court: Arkansas Supreme Court

9 S.W. 305

51 Ark. 26

NICHOLS v. COUNCIL

Supreme Court of Arkansas

October 20, 1888

APPEAL from Franklin Circuit Court, Charleston District, G. S CUNNINGHAM, Judge.

Judgment reversed and cause remanded.

Cos Altenberg for appellant.

The title of the land in controversy remained in the United States government until the issuing of final proof certificate, January 12th, 1885, and the statute of limitations did not begin to run prior to the vesting of the equitable title in the appellant. See Railway v Prescott, 16 Wall, 603, and Diver et al. v. McSwine, 22 Wall. 444; Friedheim, 43 Ark. 204.

As to the statute of limitations: It was error on the part of the lower court to permit the appellees to introduce evidence to show peaceable and adverse possession of said land prior to vesting of equitable title from the United States government to appellant, January 12th, 1885. See Diver et al. v. Friedheim, supra; also Simmons v. Ogle, 105 U.S. 271. As long as the title remained in the United States government, the statute of limitations did not run against appellant. See Simmons v. Ogle, supra; also Ross v. Evans, 65 al., 439.

As to public lands: The power of congress over the disposition of the public lands within the state is expressly recognized to exist by the organic law of the state. See Mansfield's Digest, p. 152; Acceptance of Compact, approved October 18th, 1836.

See United States v. Gratiot, 14th Peters, 526. Congress has the sole power to declare the effect and precedence of title to public lands emanating from the United States. See Bagnell v. Broderick, 13 Peters, 436. A patent carries the fee and is the best title known to a court of law. See Bagnell v. Broderick, supra; also Hooper v. Schiemer, 23d Howard, 235. The appellant presented a patent from the United States government for the lands in controversy, dated Nov. 30th, 1885; issued under an act of congress approved May 20th, 1862, which could not be successfully questioned by appellee. See Drew v. Valentine, 18th Federal Reporter, 712.

Alienation of homestead is against public policy and void. The appellee's deed, presented and read as evidence to the jury, was illegal and void for the reason that it was dated prior to issuing of final proof certificate for said lands, and for the further reason that it was predicated on a power of attorney executed prior to date of homestead entry, and is illegal and void as against public policy. See acts of congress, approved May 20th, 1862. A power of attorney, deed of conveyance or contract, executed by a homestead entryman prior to five years' residence or final proof certificate, is illegal and void. See Seymour v. Sanders, 3d Dillon, 440, and Cox v. Donnelly, 34 Ark. 762, and Sorrels v. Self, 43d Ark. 451; Shorman v. Eakin, 47th Ark. 351, and Marshall v. Cowles, in manuscript. It was error to admit power of attorney and pretended deed as evidence to the jury on the question of estoppel. No one can estop himself from taking advantage of that which is contrary to public policy. See Shorman v. Eakin, supra, and Thompson v. Dauksum, 68 Cal. 593, and Thrift v. Delany, 69 Cal. reported in 10th Pacific, 475; Hutton v. Frazier, 37 Cal. 475; Law v. Hutchings, 41 Cal. 637.

Ed. H. Mathes, for appellees.

The theory of appellant on the trial below seemed to be, that inasmuch as he had executed the power of attorney to Wittich, authorizing him to sell the land in controversy before he made his final proof of residence and cultivation as required by law, the power of attorney was therefore void and appellees acquired no title under the deed from Wittich. There is no evidence whatever in the transcript to support this theory.

The acts of congress upon the subject of homesteads, etc., provide that persons who served in the federal army or navy, and who had, prior to the act of June 8th, 1872, entered as a homestead a quantity of the public lands less than 160 acres, might, after that date, take up an additional amount, sufficient to make a full quarter section or 160 acres. This was called a "soldier's additional homestead," and proof of residence upon and cultivation of his original homestead was all the proof that was or could be required. Revised Statutes of the United States, section 2306. The patent from the United States, relied on by the appellant in this case, shows on its face that no final proof of any kind was required, as it conveys two separate tracts of land lying several miles apart, and it is impossible he could have lived upon and used both as a homestead. As to proof required on original homestead, see section 2291, Revised Statutes.

The natural and legitimate presumption, then, is that he had made his original entry of 40 acres only, and had made the proof of residence and cultivation as required by section 2291 before he applied for the 120 acres named in the patent. The power of attorney to Wittich refers to any lands he may be entitled to under the act of June 8th, 1872.

The plaintiff in ejectment must recover on the strength of his own title and not on the weakness of that of the defendant. Rice v. Harrell, 24th Ark. 402. And if the appellant did, in fact, enter into a contract to sell his land before he made final proof as required by law, then he forfeited all his interest in the land, and obtained his patent from the government through fraud. In making final proof on original homesteads the entryman must swear and prove by two witnesses that he has not mortgaged, sold or contracted to sell any part of the land. See "Circular from general land office, showing the manner of proceedings to obtain title to public lands," issued March 1st, 1884, pages 24, 25, and form 4--369, pages 86, 87. Also, forms 4--008 and 4--197, page 91. The last is the form of the certificate of the receiver of the United States land office, and shows that no final proof, except that already made on the original entry, is required on these additional entries.

The truth is, appellant made the entry according to law, sold the land through his attorney for a hundred dollars, and when the government, in ignorance of the sale, issued the patent to him, tried to take advantage of an apparent wrong of his own, and demanded possession of the land. His after-acquired or perfected title only inured to the benefit of his vendee. Mansfield's Digest, sec. 642.

The authorities are numerous on the proposition that any sale or disposition of the homestead before final proof is contrary to public policy and void; but they will be found upon examination to refer always to original entries and not to the additional privilege allowed to soldiers and sailors.

The register and receiver are instructed to receive the application for a soldier's additional homestead and to issue his final certificate at the same time, thus showing that no proof of any kind is required. See top of page 25 of the circular from the general land office, issued March 1st, 1884.

OPINION

COCKRILL, C. J.

Nichols brought his action of ejectment in 1886 against Council for the possession of 80 acres of land, relying upon a patent from the United States, issued, as it recites, "pursuant to the act of congress...