Orrell v. Bay Mfg. Co.

• Decision Date: 16 May 1904
• Citation: 83 Miss. 800,36 So. 561
• Court: Mississippi Supreme Court
• Parties: JOHN C. ORRELL ET AL. v. BAY MANUFACTURING COMPANY

36 So. 561

83 Miss. 800

JOHN C. ORRELL ET AL. v. BAY MANUFACTURING COMPANY

Supreme Court of Mississippi

May 16, 1904

FROM the chancery court of Hancock county. HON. STONE DEAVOURS Chancellor.

The Bay Manufacturing Company, appellee, was the complainant in the court below; Orrell and others, appellants, were defendants there. From a decree declining to dissolve an injunction the defendants appealed to the supreme court. The facts are fully stated in the opinion of the court.

Case affirmed and remanded.

Barber & Mize, for appellants.

By agreement of counsel there is but one question to be decided by the appellate court in this case, viz.: Whether or not the lease made by the Hodes to J. C. Orrell of the timber growing on the land named in said lease, for turpentine purposes, on February 17, 1903, when said Hodes were the legal owners of said land, having previously completed their homestead entry and obtained final certificates, is superior to the lease made by said Hodes of said land for turpentine purposes to Leatherbury & Co., under whom the Bay Manufacturing Company claims, on July 31, 1899, when the Hodes were holding said land under incomplete homestead entry, having only a short time previously filed their initial claim for homestead entry thereon.

The manifest object of the homestead entry law of the United States is to enable the citizen to obtain a home for himself and family unincumbered at the time the title passes from the United States government to the patentee.

Section 2288, revised statutes United States, as amended by sec. 3 of the act of March 3, 1891, p. 942, says that no part of the land entered for homestead can be alienated except for church, cemetery, or school purposes, or for the right of way of railroads, canals, or ditches for irrigation or drainage across it. The lease made by the Hodes to Leatherbury & Co. does not fall within the list of authorized alienations.

The pre-emptor, before final proof and receipt of final certificate, has only the right to cut and use such timber on the homesteaded land as is reasonably necessary for the clearing, fencing, cultivation, and enjoyment of the same. The statute does not contemplate that the pre-emptor, before final proof, shall become the agent of some corporation partnership, or person prohibited from taking advantage of the homestead law. Were the pre-emptor allowed to lease the timber on the land entered for turpentine or saw mill purposes that class of natural and artificial persons debarred from making use of the provisions of the homestead law would have their agents on every foot of the public domain under the pretense of availing themselves of the statute's generosity, and such agents, after entry, would sell the timber or its use on the lands belonging to the government and then, like the Arab, fold their tents and silently steal away, caring little or nothing for final proof or patent. The pre-emptor is therefore required by the statute to make oath on filing application that same is made in good faith and not for the benefit of any other person or corporation, that he is not the agent of any other person or corporation to give them the benefit of the land entered or the timber thereon, and he is prohibited from conveying any part of the land or timber thereon except for purposes cited supra, before final proof.

Any contract made in derogation of a statute is null and void. Bartlett v. Vinor, Carth., 252; Bohn v. Lowery, 77 Miss. 424, 34 Ark. 762.

Growing timber on the land is part and parcel of the realty. Because of the ravages traceable to the woodman's axe, and the easy yielding to fire and worms of pine forests that have been hacked, cut, and sapped of life for turpentine purposes a turpentine lease lessens and destroys the value, to a large extent, of realty on which it is given by the dire destruction of the timber, and, by destroying timber from the public domain, while the title to said land is still in the government, much of said lands is rendered worthless.

The right of the pre-emptor is one of occupancy only, with rights and privileges subject to his duty to the government to protect the timber on said land. He has no right to cut the timber for sale or speculation or to lease it for turpentine purposes until he has made final proof entitling him to patent. The Hodes, at the time they leased the land for turpentine purposes to Leatherbury & Co., had no title to the land and had no right to make said lease, it being void as against public policy. Shivers v. U.S. 159 U.S. 491; Frisbie v. Whitney, 9th Wall. (U. S.), 187; Co. v Donnelly, 34 Ark. 762; U. S. v. Taylor, 35 F. 485.

The doctrine of estoppel does not apply against the Hodes because said lease was utterly null and void, nor could any title which the lessors might afterwards obtain inure to said lease and make it valid. The first lease being void as against public policy, under the Federal statute, the lease made by the Hodes to J. C. Orrell after they obtained title to the land, is a good and valid lease.

Any conveyance or any contract to convey land homesteaded made before final proof and receipt of final certificate is void, and not merely voidable, although founded on an adequate consideration, and a court of equity is without power to give relief. Anderson v. Carkins, 135 U.S. 483; Mulloy v. Cook, 10 So. 349; Mulloy v. Cook, 17 So. 899; Dewhurst v. Wright, So. Rep., 682; Milliken v. Carmichael, 33 So. 9; 134 Ala. 623; Woodson Iron Co. v. Strickland, 121 Ala. 616; Metlison v. Allen, 30 Kan. 382; Dawson v. Merrille, 2 Neb., 119; Oaks v. Heaton, 14 La. 116; Nichols v. Council (Ark.), 9 S.W. 305; Clark v. Bailey, 5 Ore., 343; 5 Minn. 192; Kansas Lumber Co. v. Jones, 32 Kan. 195; Seymour v. Sanders, 3 Dillon (8th Circuit), p. 437.

Anderson v. Carkins, cited supra, forever sets at rest the doctrine that equity will enforce and protect a lease made before final proof, which decision has been followed by every state which has passed upon said question since the rendition of Anderson v. Carkins, with the single exception of Mississippi in the recent cases of Sanford v. Estabuchie Lumber Co., and Anderson v. Wilder, when the question in the case at bar was not directly before the court in said cases.

We would call especial attention to the second case of Mulloy v. Cook, cited supra, and to Milliken v. Carmichael et al., 33 So. 9, a case in which the facts are almost identical with the facts in this case, both being dependent for adjudication upon the question whether or not a lease for turpentine purposes of timber on land homesteaded made after final proof when the lessor has full title, will hold over a lease of the same land for the same purpose made long before final proof and when the lessor had no title and only a mere possessory right in preference to others. The supreme court of Alabama, in dissolving the injunction in said case emphatically upheld the contention urged by appellants in this case.

The case of Butterfield Lumber Co. v. Hartman, 82 Miss. 494, is not in point, for the reason that in said case the consideration paid for the sale of the timber and right of way before entry was completed, was advanced strictly on the agreement that the money was to be used in commuting the land at the end of fourteen months, thus enabling the homesteader to obtain patent and acquire a home in fourteen months, whereas otherwise he would have been forced to wait five years. No such facts appear in the case at bar.

We wish to emphasize the fact that the doctrine of estoppel does not apply in the case at bar.

While a deed by a grantor without title may give rise to estoppel, it cannot confer an estate capable of being transferred to third persons even when the result would be to deprive the assignee from obtaining redress for the grant.

A title may be good between the parties and those claiming under them until brought in contact with a superior right, when it must yield to this superior right. Herman on Estoppel, vol. 2, sec. 848, p. 976.

Even though estoppel should apply, and it does not, between Leatherbury & Co. and the Hodes, it does not apply between the Bay Manufacturing Company, the transferee of Leatherbury & Co. and the Hodes, when the superior right of J. C. Orrell intervenes.

Statutory provisions for the benefit of individuals may be waived, but when the enactment is to secure general policy or morals, it cannot be waived. The statutes regulating the homestead law are intended to secure a general policy of the government and cannot be waived. Herman on Estoppel, sec. 825.

The doctrine of estoppel does not apply and cannot be pleaded in a contract against public policy. 39 L. R. A., 725; Cox v. Donnelly, 34 Ark. 762.

The doctrine of estoppel can go no further than to preclude a party from denying that he has done that which he had power to do. Parsons on Contracts, 2 vol., sec. 800, p. 972, and authorities cited. 1 S.W. bottom p. 560.

Section 2296 is valid and binding on the state. Seymour v. Sanders, 3 Dillon, 437.

Mechanic's lien will not attach to the land before claimant is entitled to patent. Kansas Lumber Co. v. Jones, 32 Kan. 195.

The Hodes, having violated secs. 2288, 2290, 2291, and 2296, their contract with Leatherbury & Co. is void as against public policy, and it is a proposition admitting of no exception that contracts in violation of law and against public policy cannot be enforced, being void. 77 Miss. 424; 34 Ark. 762.

Congress has absolute right to prescribe the times, conditions, and mode of transferring the land or any part of it, and to designate the persons to whom the transfer shall be made. No state legislature can interfere with the right or embarrass its exercise. Gibson v. Chotou, 13 Wall., 92.

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