In decreeing specific performance of a contract for the
conveyance of a tract of land in a suit where the defense was that
the contract was against public policy and void under the homestead
laws of the United States, a state court necessarily passes upon a
federal question, although it may put its decision upon other
grounds.
A contract by a homesteader to convey a portion of the tract
when he shall acquire title from the United States is against
public policy and void, and it cannot be enforced, although a
valuable consideration may have passed to the homesteader from the
other party.
Page 135 U. S. 484
The case is stated in the opinion.
MR. JUSTICE BREWER delivered the opinion of the Court.
On December 16, 1876, the parties hereto entered into the
following contract:
"This agreement, made and entered into this 16th day of December
by and between Joseph Anderson and Hannah Anderson, his wife, of
the County of Adams and the State of Nebraska, parties of the first
part, and Levi Carkins, of Adams County, Nebraska, party of the
second part, witnesseth:"
"That the said parties of the first part have this day sold, for
and in consideration of the sum of one hundred dollars to them in
hand paid by the said Levi Carkins, the receipt whereof is hereby
acknowledged, the following real estate, to-wit:
Page 135 U. S. 485
The south one-half of southeast quarter of section ten (10), in
town eight (8), range ten (10) west, in Adams County,
Nebraska."
"And the parties of the first part further agree with the party
of the second part that they will make and execute to him, on or
before the 1st day of May, 1881, a good and sufficient warranty
deed of said premises, clear of all encumbrance, and for the
faithful performance of this contract they hereby bind themselves,
their heirs, executors, administrators, and assigns."
"In witness whereof they have hereunto set their hands and seals
this 16th day of December, 1876."
"[Signed] JOSEPH ANDERSON"
"HANNAH M. ANDERSON"
"
Parties of the First Part"
"LEVI CARKINS"
"
Party of the second part"
"In presence of L. P. HAWLEY"
In October, 1885, the defendant in error commenced his action in
the District Court of Adams County, Nebraska, for a specific
performance of this contract. The plaintiffs in error answered,
pleading distinctly that the contract was against public policy and
void for the reason that at the time of its execution, the land
belonged to the general government; that it was made in
contemplation of Joseph Anderson's taking the land as a homestead;
that on the 7th day of March, 1877, he did enter the land as a
homestead, and that he continued to reside upon and cultivate it
until the 31st day of March, 1884, at which time he made final
proof under the homestead law, and thus only obtained title. The
case, after trial in the district court, passed to the supreme
court of the state, by which a final decree was entered for a
specific performance. To reverse such decree this proceeding in
error has been brought. Two questions are presented -- one of
jurisdiction, the other of error.
First, with respect to jurisdiction, it will be observed that
the contract is
prima facie good. The land is described,
the
Page 135 U. S. 486
consideration stated and its receipt acknowledged, a sale
affirmed, an agreement to convey recited, and the time for the
conveyance specifically named. To a bill for the specific
performance of this contract the defendants answered that the
contract was void under the homestead laws of the United States.
Notwithstanding this defense so expressly stated, a decree for
specific performance was entered against them. Obviously this could
not be so entered without adjudging such defense insufficient and
denying to them the protection claimed under the homestead laws. It
is true that the Supreme Court of Nebraska in its opinion relied
principally on two sections of the statutes of Nebraska, but it
also and as plainly ruled that the defense that the contract was
against public policy and void was not sustainable, and that the
homestead laws carry with them no protection against such a
contract. If under their provisions such a contract is void, then
obviously no state statute can vitalize the contract or deprive a
party thereto of the protection afforded by the federal statutes.
Inasmuch, therefore, as no decree could pass against the defendants
without denying the protection asserted by them under the homestead
laws, and as the Supreme Court of Nebraska expressly declared that
this invalidity under the homestead laws was not sustainable, it
follows that the case is one in which a right was specifically set
up and claimed under the statutes of the United States and the
decision and judgment of the state court were against that right.
Hence, the jurisdiction of this Court cannot be doubted.
Murdock v.
Memphis, 20 Wall. 590. It is immaterial that the
state court considered the case to be within the provisions of
certain state statutes. The grasp of the federal statute must first
be released. The construction and scope of that are federal
questions, in respect to which the party who claims under such
statute, and whose claim is denied, has a right to invoke the
judgment of this Court.
Passing now to the question of error, it appears that prior to
the date of the contract, Carkins had been in possession of the
whole quarter section; that he had held it as a timber claim from
1873 to the time of the contract; that he had
Page 135 U. S. 487
broken and cultivated forty acres, and planted twenty acres of
timber; that the improvements he had thus made were of the value of
one thousand dollars; that Anderson was unable to pay cash for
these improvements, and so the arrangement was made by which
Carkins relinquished his possession to Anderson, and the latter was
to enter into possession to acquire title under the homestead act,
and to convey one-half the land in payment for these improvements.
The consideration was ample, and the only question is as to the
validity of the contract to convey. The theory of the homestead law
is that the homestead shall be for the exclusive benefit of the
homesteader. Section 2290 of the Revised Statutes provides that a
person applying for the entry of a homestead claim shall make
affidavit that, among other things,
"such application 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 section 2291, which prescribes the time and manner of final
proof, requires that the applicant make "affidavit that no part of
such land has been alienated, except as provided in section 2288,"
which section provides for alienation for "church, cemetery, or
school purposes, or for the right of way of railroads." The law
contemplates five years' continuous occupation by the homesteader,
with no alienation except for the named purposes. It is true that
the sections contain no express prohibition of alienation and no
forfeiture in case of alienation; yet, under them the homestead
right cannot be perfected in case of alienation, or contract for
alienation, without perjury by the homesteader. Section 2304 makes
provision for homesteading by soldiers and officers who served in
the army of the United States during the recent war, but that
section makes no substantial change except in respect to the time
of occupation. Under this section, Anderson perfected his homestead
right, but the question of the length of occupation required to
perfect such right in no manner affects the controversy. The same
affidavits in respect to alienation are required from federal
soldiers as in other cases of homesteads.
Page 135 U. S. 488
This precise question was before the Supreme Court of Kansas
when the writer of this opinion was a member of that court, and,
speaking for that court, he thus stated the arguments and
conclusions:
"Now it is argued on the one hand that it is a matter of course
for a court of equity to decree a specific performance of a
contract for the conveyance of real estate, except in cases where
it is shown to be unjust and inequitable to do so,
Waynick v.
Richmond, 11 Kan. 488; that there is no express prohibition on
alienation by a homesteader or a forfeiture for such alienation;
that the only thing which stands in the way of such alienation is
the perjury imposed upon the homesteader; that no man should be
permitted to plead his own wrong in avoidance of his contract; that
in this case, there was no direct alienation, but only a contract
to alienate in the future; that whatever of wrong the homesteader
might be guilty of the government alone could take advantage of,
while he himself was estopped to plead it; and further that the
homestead is for the benefit of the homesteader, and that he should
be permitted, by contract or otherwise, to make all the profit he
can out of it. On the other hand, it is contended 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; that both purchaser and vendor are parties to the wrong,
and that courts refuse to enforce such a contract not from any
regard to the vendor, but from motives of public policy; and,
finally, that courts of equity have always exercised a discretion
in enforcing the
Page 135 U. S. 489
specific performance of contracts to convey, and that it would
be strange indeed if a court of equity lent its aid to enforce the
performance of a contract founded upon perjury and entered into in
defiance of a clearly expressed will of the government. We think
the latter reasoning correct, and that, whether the contract be
absolutely void or not, it is so clearly against the will and
policy of the government, and so necessarily resting upon perjury,
that a court of equity will have nothing to do with it."
Mellison v. Allen, 30 Kan. 382, 384.
Similar views were expressed by the Supreme Court of Nebraska in
the case of
Dawson v. Merrille, 2 Neb. 119, in which it
was held that
"the policy of the act of Congress granting homesteads on the
public lands, as disclosed by its requirement of affidavit and
other provisions, is adverse to the right of a party availing
himself of it to convey, or agree to convey, the land, before he
receives the patent therefor,"
and that "the court will not lend its aid to the enforcement of
a contract which is against public policy," and the judgment of the
trial court, denying specific performance of a contract for the
sale of lands, made by the homesteader before he had acquired the
legal title to the premises, was affirmed.
See also Oaks v.
Heaton, 44 Ia. 116;
Nichols v. Council, 9 S.W. 305,
decided by the Supreme Court of Arkansas, October 20, 1888. This
very contract was before the Department of the Interior, and its
invalidity adjudged by the Secretary in the case of
Aldrich v.
Anderson, 2 L.D. 71.
There can be no question that this contract contemplated perjury
on the part of Anderson, and was designed to thwart the policy of
the government in the homestead laws, to secure for the benefit of
the homesteader the exclusive benefit of his homestead right. Such
a contract is against public policy, and will not be enforced in a
court of equity. Such being the scope and purpose of the federal
statutes, it is not within the power of a state, directly or
indirectly, to nullify or set them at naught. Suppose the State of
Nebraska had passed an act declaring that notwithstanding the
provisions of the federal statute, a homesteader might, before his
homestead right was
Page 135 U. S. 490
perfected, make a contract to convey, could it be doubted that
such an act would be void as in conflict with paramount provisions
of the federal statute? Can the policy of Congress with respect to
the disposition of public lands be thwarted by any state? The
question suggests its own answer. The law of Congress is paramount;
it cannot be nullified by direct act of any state, nor the scope
and effect of its provisions set at naught indirectly. But we do
not think that the sections of the Nebraska statutes cited by the
supreme court were intended to nullify the provisions of the acts
of Congress, or have any such effect. Those sections, Nos. 1 and 2,
Compiled Statutes of Nebraska, c. 38, 376, read:
"All contracts, promises, assumpsits, or undertakings, either
written or verbal, which shall be made hereafter in good faith and
without fraud, collusion, or circumvention, for sales, purchase, or
payment of improvements made on the lands owned by the government
of the United States shall be deemed valid in law or equity, and
may be sued for and recovered as in other contracts."
"All deeds of quitclaim, or other conveyance of all improvements
upon public lands, shall be as binding and effectual in law and
equity between the parties for conveying of the title of the
grantor in and to the same as in cases when the grantor has the fee
simple to the premises."
But these refer simply to contracts for the sale and conveyances
of improvements upon public lands. They are in terms limited to the
matter of improvements, and do not touch in any way the land
itself, whether in respect to conveyance or contract to convey.
They may, if valid, establish the sufficiency of the consideration
paid by Carkins, but they do not affect at all the question of the
validity of Anderson's contract to sell the land. Suppose Carkins'
transfer of possession and improvements on the land is, as affirmed
under these sections, a good consideration, it is no better
consideration than so much money, and Carkins' right to compel a
conveyance by Anderson would have been no weaker if he had paid him
$1,000 in money, than it is now when he simply transfers to him
improvements on the land of the value of one thousand dollars.
Page 135 U. S. 491
We may agree with the Supreme Court of Nebraska that the
consideration passing from Carkins to Anderson was a good and
valuable one, and yet that brings us no nearer the question of the
validity of Anderson's contract to convey. The fact that Anderson
has received full payment for the land only makes stronger the fact
that perjury on his part was essential to his obtaining the title,
for clearly it was not then to be obtained for him but for Carkins,
and does not in the least militate against the public policy
disclosed in the federal statutes, that the acquisition of title
must be for the exclusive benefit of the homesteader. It may be
that Carkins can recover from Anderson the value of these
improvements on the ground that Anderson has received that for
which he has paid nothing, for in such an action Carkins will not
be seeking to enforce an illegal contract. To that effect are the
cases of
Simmons v. Yurann, 11 Neb. 518;
Bateman v.
Robinson, 12 Neb. 511; but that is very different from the
enforcement of a contract which is illegal because against public
policy. The Supreme Court of Nebraska, recognizing the general rule
as to the invalidity of contracts against public policy, seemed to
think that the parties were not
in pari delicto; but we
are unable to see any distinction in moral status between the man
who contracts for the perjury of another and the one who contracts
to commit such perjury. The fact that the former party may have
parted with money or valuable property does not change the quality
of his action or give him higher claim to the consideration of a
court of equity. So it results that the federal question in this
case was not rightly decided by the state court, and no other
question appears which, rightly decided, upholds its decree. The
case therefore must be
Reversed and remanded to the Supreme Court of the State of
Nebraska for further proceedings in accordance with this opinion,
and it is so ordered.