On writ of error, the finding of facts made in the supreme court
of the state is binding upon, and will be the basis of, the
decision of this Court.
There is no prohibition in the Timber Culture Act of June 14,
1878, 20 Stat. 113, as there is in the Homestead Act, against an
entryman who has in good faith acquired a holding under the act,
alienating an interest in the lands prior to the issuing of the
final certificate.
This is an appeal from a decree of the circuit court of Malheur
County, State of Oregon, entered by direction of the Supreme Court
of Oregon.
Page 193 U. S. 513
MR. JUSTICE DAY, after making the foregoing statement, delivered
the opinion of the Court.
The finding of facts made in the Supreme Court of Oregon is
binding upon this Court and will be the basis of decision here.
Egan v. Hart, 165 U. S. 188;
Dower v. Richards, 151 U. S. 658.
It appears that Adams made the entry under the Timber Culture
Act before the partnership agreement was entered into, and there is
nothing in the record to show that, in taking the preliminary oath
required by the statute, he acted otherwise than in good faith, and
stated the truth as to the situation and his purpose in making the
entry. As recited in the title, the purpose of the act is to
encourage the growth of timber on the Western prairies, and it is
intended to induce settlers to plant and cultivate trees with a
view to receiving a patent of the lands thus improved. Section 2 of
the act (20 Stat. 113) requires the person applying for the benefit
of the law to
Page 193 U. S. 514
make affidavit that he is the head of a family (or over
twenty-one years of age) and a citizen of the United States, or has
declared his intention to become such; that the land specified is
devoid of timber; that the entry is made for the cultivation of
timber for the exclusive use and benefit of the applicant; that the
application is made in good faith, and not for the purpose of
speculation, or directly or indirectly for the use or benefit of
any other person or persons whomsoever; that affiant intends to
hold and cultivate the land and to comply with the provisions of
the act, and has not made other entry under the law. Before a final
certificate can be given or patent issue, eight years must elapse
from the date of entry, and if at the expiration of that time, or
within five years thereafter, the person making the entry, or, in
event of death, his heir or legal representative, shall prove by
two credible witnesses that he, she, or they have planted, and for
not less than eight years have cultivated and protected, the
required quantity and character of trees; that not less than
twenty-seven hundred trees were planted on each acre, and that, at
the time of making such proof, there shall be then growing six
hundred and seventy-five living and thrifty trees on each acre, a
patent shall issue for the land.
It is the contention of the plaintiff in error that these
provisions demonstrate the policy of the law to grant the lands in
question to the person filing the entry, his heirs and legal
representatives, and none other, and that to make the sale of an
interest in the lands to another as a partner, as is found to have
been done in this case, is void as against public policy. It is
pointed out that the final affidavit, required by the rules and
regulations of the General Land Office, made under authority of
section 5 of the act, is to be in the same terms as the preliminary
one, and requires the claimant to make oath that his entry was made
in good faith, and not for the purpose of speculation or indirectly
for the benefit of any other person whomsoever.
This requirement and the general purpose indicated in the
Page 193 U. S. 515
terms of the act, it is argued, bring the case within the
reasoning and spirit of
Anderson v. Carkins, 135 U.
S. 483. In that case, it was held that a court of equity
would not grant a decree for specific performance of an agreement
to sell the interest of the homesteader, made after settlement and
before the oath is filed for final certificate. But the homestead
act specifically requires that the applicant shall make affidavit
before entry is made that it is for the purpose of actual
settlement and cultivation, and not directly or indirectly for the
use or benefit of any other person. Rev.Stat. sec. 2290.
Further, the final proof requires affidavit by the applicant
"that no part of such land has been alienated except as provided in
section 2288" (Rev.Stat. ยง 2291), which section limits the right of
alienation to "church, cemetery, or school purposes, or for the
right of way for railroads."
In this state of the law, this Court, in the
Anderson
case, in an opinion by MR. JUSTICE BREWER, sustained the contention
in behalf of Anderson
"that the homestead is a gift from the government to the
homesteader, conditioned upon his occupation for five years, and
upon his making no disposition or alienation during such term; that
the affidavit of nonalienation is as clear an expression of the
legislative intent as a direct prohibition; that the whole policy
of government in this respect would be thwarted if the homesteader
were permitted to alienate prior to the expiration of the five
years; that a successful alienation could be accomplished only by
perjury, and an attempted alienation would only offer a constant
inducement to the homesteader to abandon his occupation, and thus
deprive the purchaser of any possibility of acquiring title to the
land; that a contract whose consummation necessarily rests on
perjury is illegal."
And that courts of equity would not enforce the performance of
such contracts "founded upon perjury and entered into in defiance
of a clearly expressed will of the government." But this case is
very far from supporting the contention of the plaintiff in error
as to the construction of the Timber Culture Act. There is no
requirement in the latter
Page 193 U. S. 516
act that the entryman shall make oath that he has not alienated
any interest in the land. The policy of the government to require
such affidavit when it intends to make it a condition precedent to
granting a title was indicated in the homestead act, and could
readily have been pursued by a similar provision in the Timber
Culture Act if it was intended to extend the principle to that
statute. The final proof under the latter act has in view sworn
testimony that the number of trees required has been planted, and
the prairies theretofore barren of timber have been supplied with
trees to the extent required by the law before the title shall pass
from the government. The policy of the homestead act, no less than
in the specific statement in the final oath, looks to a holding for
a term of years by an actual settler with a view to acquiring a
home for himself. In encouragement of such settlers, and none
others, homesteads have been freely granted by the government.
This conclusion is in conformity with the decisions of the Land
Department in Sims v. Busse, 4 L.D. 309, and United States v. Read,
5 L.D. 313. In these cases, the right of the timber culture
entryman to dispose of his holding, acquired by him in good faith,
before the final certificate, is fully recognized. It is argued
that, conceding these decisions to hold that such entryman can sell
his claim after entry and before final proof, it does not follow
that he can sell it and agree to prove up the entry claim and
obtain a patent with a promise to convey it to another without
violating the policy of the law. But, as the law does not require
affidavit before final certificate that no interest in the land has
been sold, we perceive no reason why such contract as was found to
exist by the Supreme Court of Oregon would vitiate the agreement to
convey after the certificate is granted and the patent issued. If
the entryman has complied with the statute and made the entry in
good faith, in accordance with the terms of the law and the oath
required of him upon making such entry, and has done nothing
inconsistent with the terms of the law, we find nothing in the fact
that, during his term of occupancy, he has
Page 193 U. S. 517
agreed to convey an interest, to be conveyed after patent
issued, which will defeat his claim and forfeit the right acquired
by planting the trees and complying with the terms of the law. Had
Congress intended such result to follow from the alienation of an
interest after entry in good faith, it would have so declared in
the law.
Myers v.
Craft, 13 Wall. 291.
To sustain the contentions of the plaintiff in error would be to
incorporate by judicial decision a prohibition against the
alienation of an interest in the lands not found in the statute or
required by the policy of the law upon the subject.
The decree of the state court is
Affirmed.