Bernier v. Bernier,
147 U.S. 242 (1893)

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U.S. Supreme Court

Bernier v. Bernier, 147 U.S. 242 (1893)

Bernier v. Bernier

No. 102

Argued January 3-4, 1893

Decided January 10, 1893

147 U.S. 242


When a person makes a homestead entry of a tract of public land, and enters into occupation of it with his family, and dies a widower, and without acquiring a patent, the right to complete the proofs and acquire the patent passes, under Rev.Stat. § 2291, to all his children equally, as well those who are adults as those who are infants, and not, under Rev.Stat. § 2292, to such children only as are minors at the time of his death, to the exclusion of those who had then attained their majority.

Section 2292 of the Revised Statutes was only intended to give to infant children the benefit of the homestead entry and to relieve them, because of their infancy, from the necessity of proving the conditions required when there are only adults, or adults and minors, mentioned in § 2291, and to allow a sale of the laud within a prescribed period for their benefit.

This is a suit in equity to determine the respective rights of the adult and minor heirs of Edward Bernier at the time of his death to certain real property in Michigan held by him under a homestead entry, and to compel the conveyance from the minor heirs, and the defendant who has acquired an interest from one of them, or an undivided half of the premises, to the complainants. It arises out of the following facts:

On the 24th of May, 1875, Edward Bernier made a homestead entry on the lands in controversy under the provisions of the homestead law of the United States. At the time, he was a widower, his wife having died in April, 1872. He occupied the premises as a homestead until his death, June 17, 1876. He left ten children surviving him, five of whom were at the time over twenty-one years of age, and they are the complainants in this case, and five were at the time under twenty-one years of age, and they, with one John H. Goff, who acquired, in 1885, by a quitclaim deed, the interest of one of them, are the defendants. One of the defendants and minor heirs, Joseph Bernier, before suit, conveyed his interest to his sister and co-defendant,

Page 147 U. S. 243

and filed a disclaimer. She, representing both his and her own share, was willing to divide the property on the basis claimed by the complainants, and has permitted a decree to pass against her by default. In October, 1876, some months after the death of Edward Bernier, Samuel F. Bernier, one of the adult heirs, on behalf of all the ten heirs, made the required proof for commuting the homestead entry, paid the minimum price for the land, and received a certificate entitling him to a patent therefor. This certificate was never cancelled, nor was any proceeding taken for its cancellation, nor was any notice given of a contest respecting it, nor was any irregularity in its issue alleged. The only proof of occupation and improvement was made by Samuel F. Bernier, and the only sums paid for the land were advanced by him, on behalf of all the heirs. But notwithstanding these facts, sometime in April, 1877, a second certificate was issued to the minor heirs of Edward Bernier, which was made upon the commutation proofs presented by Samuel F. Bernier, as above stated, and on the 25th of the same month, a patent was issued to them. The bill alleges that this was issued to them by mistake; that it should have been issued to the heirs of Edward Bernier, and that it was issued to the minors without the knowledge, consent, or procurement of the complainants, and in violation of their legal and equitable rights in the premises, and that, by its terms, the title in fee simple of the premises is in them; but it claims that they hold the same subject to the rights of the complainants therein.

The bill further alleges that all the steps to change the filing on the lands from a preemption claim to a homestead entry, and in commuting the homestead entry and securing a patent for the lands, were taken through an attorney at law who was acting for the said Edward Bernier's heirs; that when he received the patent, he supposed the same ran to those heirs, and, without examining it or discovering his mistake, he placed the same on record, and the mistake was only recently discovered; that for many years previous to such discovery, all the heirs, including the minors, treated the lands as their joint property, but that since the discovery of the mistake, and only since, the

Page 147 U. S. 244

minor heirs pretend to claim that they are the sole and only heirs, and that the complainants have no interest, right, or title in the lands, which claim and pretense, the complainants charge, are a fraud upon their rights, and work a manifest wrong and injury to them. Hence the institution of this suit.

The circuit court in Michigan which heard the case decided in favor of the complainants, and adjudged that the defendants execute, acknowledge, and deliver to them a sufficient deed or deeds to convey and vest in each one an undivided tenth part of the lands and premises. On appeal, the supreme court of the state reversed the decree and ordered the bill to be dismissed. From the latter decree the case is brought by writ of error to this Court.

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