Shorman v. Eakin

• Decision Date: 09 October 1886
• Citation: 1 S.W. 559,47 Ark. 351
• Parties: SHORMAN v. EAKIN
• Court: Arkansas Supreme Court

1 S.W. 559

47 Ark. 351

SHORMAN v. EAKIN

Supreme Court of Arkansas

October 9, 1886

APPEAL from Hempstead Circuit Court in Chancery, Hon. C. E. MITCHEL Circuit Judge.

Decree affirmed.

Smoote McRae & Hinton for Appellant.

Appellant in the absence of fraud, cannot contest the title nor resist the payment of the purchase money, until he surrenders the possession obtained under the sale by Burke to him. 27 Ark 61; 38 Id., 200; Hempst., 503; 40 Ark. 420; 23 Id., 590; 24 Id., 456.

The homestead entry cannot change the result. Appellee cannot set up the defense, under Section 2296, Revised Statutes of the United States, that it is against public policy.

This is a proceeding to foreclose for the purchase money in which the title is not involved. The statute was not meant to apply to equitable proceedings to foreclose for purchase money.

A. B. & R. B. Williams for Appellee.

The pretended sale was a fraud. Burke had no title, nothing to convey, and the sale was void. 38 Ark. 127. This is an executory contract. See distinction in 21 Ark. 235.

Under the laws of the United States Eakin could not procure a title which could inure to the benefit of any one but himself. See the oath. U. S. Dig., sec. 2290.

The cases in Hempst., 503, not in point. The possession of land under a void sale is no consideration. 38 Ark. 127, citing 21 Ark. 235.

A covenant to make a "good and perfect deed" is not complied with by making one good in form only. The title must be good. 13 Sm. & M. (Miss.), 275; 5 Seed. (N. Y.), 535.

OPINION

BATTLE, J.

On the first day of March, 1878, 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 convenanting 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, Ark. was vacant, and subject to homestead entry under the laws of the United States. On the 22d 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 of Camden, and paid the receiver $ 10.05 and took his receipt. Eakin has remained in possession of the land at all times since the 1st 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 24th 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 land sold to Eakin, and on the 10th 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 28th 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. 164, 18 F. Cas. 1331.

As a general rule, a purchaser, entering into possession under his contract of purchase, cannot, in an action like this, so long as he retains such possession, deny his vendor's title. If the vendor is unable to convey the title, and he would rescind the contract, he must restore the possession. He cannot enjoy the property and refuse to pay the price. 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. 61; Galloway v. Failey, 12 Peters 294; Jackson v. Ayers, 14 Johns. 223; Jackson v. McGinness, 14 Pa. 331; McIndoe v. Morman, 26 Wis. 588.

But this rule is not without exception. No one, as a rule, can estop himself from taking advantage 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 Parsons Contracts, 5 ed., 799; 1 Greenhood on Public Policy, 115; Spare v. Home Mut. Ins. Co., 8 Sawy. 618, 15 F. 707; Steadman v. Duhamel, 1 Manning, Granger & Scott, 888; Dupas v. Wassell, 1 Dill. 213, 8 F. Cas. 107; Klenk v. Knoble, 37 Ark. 298; Webb v. Davis, 37 Ark. 551.

The Constitution of 1868 prohibited the encumbering 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' or mechanics' liens and securities for the purchase money. In Klenk v. Knobel 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 forcelose 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 the five years, to prove by two credible witnesses that he has resided upon or cultivated the land entered by him, for the term of five years immediately succeeding the time of filing the affidavit, and make affidavit that no part of such land has been alienated. This mode of procedure was, manifestly adopted for the purpose...