Smith v. Anacoco Lumber Co., Inc.

• Decision Date: 01 December 1924
• Docket Number: 24836
• Citation: 102 So. 574,157 La. 466
• Court: Louisiana Supreme Court
• Parties: SMITH et al. v. ANACOCO LUMBER CO., Inc., et al

102 So. 574

157 La. 466

SMITH et al. v. ANACOCO LUMBER CO., Inc., et al

No. 24836

Supreme Court of Louisiana

December 1, 1924

Rehearing Denied January 5, 1925

Appeal from Twelfth Judicial District Court, Parish of Vernon; John H. Boone, Judge.

Suit by Monroe H. Smith, tutor, and others against the Anacoco Lumber Company, Inc., and others. Judgment for defendants, and plaintiffs appeal.

Judgment annulled and set aside. Judgment for plaintiffs directed.

S. W Plauche, of Lake Charles, and Ped C. Kay, of De Ridder, for appellants.

W. W Thompson and J. R. Ferguson, both of Leesville, for appellees.

OVERTON J. O'NIELL, C. J., dissents.

OPINION

OVERTON, J.

The plaintiffs in this case are the children and sole heirs of Effie L. Smith, deceased, who was the wife of William T. Smith, the father of plaintiffs. They have brought this suit to recover an undivided half interest in a certain described tract of land situated in the parish of Vernon. The right of plaintiffs to recover the one-half interest, claimed by them, depends upon whether or not the property, out of which this litigation grows, belonged to the community of acquets and gains that existed between their mother and father. If it did, plaintiffs are entitled to recover. If it did not, then they should be cast in the suit.

The property in which plaintiffs claim an undivided half interest was entered by their father, William T. Smith, on March 3, 1899, as a homestead, under section 2289 of the Revised Statutes of the United States (U.S. Comp. St. § 4530), and other laws of Congress, pertaining to such entries. On the date of the entry, Smith and the mother of plaintiffs were living together in matrimony, under the regime of the community of acquets and gains. After the entry had been made, and during the existence of the community, Smith resided on the land and cultivated it, and did so for a period of not less than five years after the making of the entry. After he had resided on and cultivated the land for the period mentioned, he, on September, 3, 1904, made final proof of his entry, before J. J. Hicks, clerk of court for the parish of Vernon. The proof made was received and filed by the land office at New Orleans on September 7, 1904. On January 12, 1905, the final certificate for the property was issued by the receiver, and on June 28 of the same year a patent was issued to Smith for the land. On September 23, 1904, which was after Smith had made final proof of his entry, and after the proof had been received and filed at the land office, but before the final receipt and the patent had issued, the community of acquets and gains, which existed between Smith and his wife, was dissolved by the death of the wife. From the time Smith began his occupancy and cultivation of the land, up to her death, Mrs. Smith and the rest of the family lived on the property with him. Smith, after the death of his wife, sold the land -- the entire tract -- to the Nona Mills Company, Ltd., one of the defendants herein. The Nona Mills Company, Ltd., after its purchase, sold the land to the Anacoco Lumber Co., Inc., the remaining defendant in this case.

The contention of plaintiffs is that the title to the land vested in Smith when he made final proof of his entry, and, since at the time he made such proof the community of acquets and gains, which existed between him and his wife, had not been dissolved, that the land, under the laws of this state, fell into the community. On the other hand, the contention of defendants is that the title to the land did not vest in Smith until the issuance of the patent, and that, since the patent did not issue until after the dissolution of the community by the death of Mrs. Smith, the land did not fall into the community, but that the title to it vested in Smith as his separate property, and hence that, when he sold, he had the right, as the owner of the whole, to sell the entire tract.

Opinion.

Section 2291 of the Revised Statutes of the United States (U.S. Comp. St. § 4532) relates to the making of final proof, in respect to homesteads and to the effect of such proof.

The section reads as follows:

"No certificate, however, shall be given, or patent issued therefor, until the expiration of five years from the date of such entry; and if at the expiration of such time, or at any time within two years thereafter, the person making such entry; or if he be dead, his widow; or in case of her death, his heirs or devisee; or in case of a widow making such entry, her heirs or devisee, in case of her death, proves by two credible witnesses that he, she, or they have resided upon or cultivated the same for a term of five years immediately succeeding the time of filing the affidavit, and makes affidavit that no part of such land has been alienated, except as provided in section twenty-two hundred and eighty-eight, and that he, she, or they will bear true allegiance to the Government of the United States; then, in such case, he, she, or they, if at that time citizens of the United States, shall be entitled to a patent, as in other cases provided by law."

From the foregoing section of the Revised Statutes it seems clear that if a person, who desires to enter a part of the public domain as a homestead, enters it, resides upon, or cultivates it during the period required, proves by two credible witnesses that he has resided upon or cultivated it for such time, makes affidavit that no part of it has been alienated, except as provided by the section named, and makes oath that he will bear true allegiance to the United States, and is at the time a citizen of this country, then he is entitled to a patent. It would seem equally clear that the title vests in the entryman, upon his complying with the conditions of the statute, and upon his making final proof showing such compliance; for, when he has done these things, he has done all that the law requires of him. What remains to be done is to be done by the government. It is true that it is only the equitable title that vests in him then, and that the legal title still remains in the government, but it is also true that the government holds the legal title merely in trust for the entryman.

The question submitted to us, therefore, resolves itself into this: Does the vesting of the equitable title to a homestead in the entryman, by the making of final proof, before the dissolution of the community, make the homestead community property, when, as in the case at bar, the entry was made and the homestead occupied and cultivated by the entryman during the existence of the community? We think that it does.

In the case of Brown v. Fry, 52 La.Ann. 58, 26 So. 748...