Shorman v. Eakin
| Decision Date | 09 October 1886 |
| Citation | 1 S.W. 559 |
| Parties | SHORMAN <I>v.</I> EAKIN. |
| Court | Arkansas Supreme Court |
Appeal from Hempstead circuit court, in chancery.
Proceeding to foreclose vendor's lien, and to collect note given for purchase money of land.
Smoote, McRae & Hinton, for appellant. A. B. & R. B. Williams, for appellee.
On the first day of March, 1879, Fleming Burke was in possession of the land in question, and sold it to John M. Eakin, on a credit, for the sum of $666.66. Eakin executed his note to Burke for the purchase money, and Burke, his bond to Eakin; thereby covenanting to convey the land in fee-simple to Eakin when the note was paid, and put Eakin in possession. At this time Burke claimed the land "through one John Skidmore and others upon a swamp-land grant from the state of Arkansas;" and, at the same time, the land, according to the books of the United States land-office at Camden, Arkansas, was vacant, and subject to homestead entry under the laws of the United States. On the twenty-second day of December, 1879, Eakin entered it under an act of congress entitled "An act to secure homesteads to actual settlers on the public domain," approved May 20, 1862, at the land-office at Camden, and paid the receiver $10.05, and took his receipt. Eakin has remained in possession of the land at times since the first day of March, 1879. The note for the purchase money was assigned to the appellant, Robert R. Shorman, some time after it was due. No part of it has ever been paid. On the twenty-fourth day of November, 1881, Shorman commenced this action in the Hempstead circuit court, on the note and bond, to foreclose a vendor's lien claimed by him on the lands sold to Eakin, and on the tenth day of October, 1883, the action was finally heard. The court held that Shorman had no lien on the land; that the note was without consideration; and dismissed the complaint, and Shorman appealed.
There is no evidence that the land in question was swamp land on the twenty-eighth day of September, 1850, or was confirmed to the state. The national government being the original source of title to lands in this state, the presumption of law is that the title remained with the government until some other disposition of it is shown. The only disposition shown to have been made by the government of the land in question is the homestead entry. This being true, the presumption is Burke never had any title to the land. Patterson v. Tatum, 3 Sawy. 172.
"As a general rule, a purchaser entering into possession under his contract of purchase cannot," in an action like this, The principle on which this rule rests is the purchaser is estopped to deny the title of his vendor, because he acknowledged it and gained possession by his purchase, and he ought not in conscience, as between them, to be allowed to enjoy the fruits of his contract, and not pay the full consideration money. Lewis v. Boskins, 27 Ark. 64; Galloway v. Finley, 12 Pet. 294; Jackson v. Ayers, 14 Johns. 223; Jackson v. McGinness, 14 Pa. St. 333; McIndoe v. Morman, 26 Wis. 589. But this rule is not without exception. No one, as a rule, can estop himself from taking adyantage of that which is contrary to public policy. Contracts, as a general rule, cannot vest in parties any rights in contravention of law or public policy. Mr. Parsons, in his work on Contracts, says: "It is obvious, however, that 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." 2 Pars. Cont. (5th Ed.) 799; Greenh. Pub. Pol. 1115; Spare v. Home Mut. Ins. Co., 15 Fed. Rep. 707; Steadman v. Duhamel, 1 Man. G. & S. 888; Dupas v. Wassell, 1 Dill. 213; Klenk v. Knoble, 37 Ark. 304; Webb v. Davis, Id. 555.
The constitution of 1868 prohibited the incumbering of homesteads of residents of this state who are married men or heads of families, in any manner, while owned by them, except for taxes, laborers' and mechanics' liens, and securities for the purchase money. In Klenk v. Knoble and Webb v. Davis, supra, the defendants, while the constitution of 1868 was in force, executed mortgages, and recited or covenanted therein that the property mortgaged was not their homesteads. This court held, in both cases, which were actions to foreclose mortgages, that the mortgagor was not estopped from denying the truth of these recitals and covenants, and claiming the property as his homestead, because such recitals and covenants were contrary to public policy and void. As a rule, a tenant cannot dispute the title of his landlord. Yet, in Dupas v. Wassell, supra, it was held that a landlord could not recover, against his lessee, ground rent for the use of the lands leased, because the lease was void by reason of its being contrary to the statutes of the United States, and against public policy; and that the lessee was not estopped to deny his landlord's title.
The object of the act under which Eakin entered the land in question is to secure the settlement of the public domain. To accomplish this object the government offers its lands to the actual settler, in quantities not exceeding a quarter section, for a nominal consideration, on the condition that he resides upon or cultivates the land entered by him for the term of five years immediately succeeding the filing of the affidavit he is required to make at the time he applies to enter. In order to prevent the homestead settler defeating the object of the act, he is required to make affidavit, upon applying, and before he is permitted to enter, that his application to enter 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, after the expiration of five years, to prove...
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