Orrell v. Bay Manufacturing Co.

1. Contracts. Interpretation. Honest intent. Where a contract is susceptible of two interpretations and capable of being fulfilled in two distinct ways, one permitted and the other condemned by law, that construction will be placed on the contract which will validate it. 2. Public Lands. Lease before patent. Validity. A lease of land for turpentine purposes, made by a claimant before his homestead entry has been perfected, is not invalid, in the absence of any showing that operations under the lease were commenced or intended to be commenced, until after the entry has been confirmed and perfected. 3. Same. Previous decision in this case — Orrell v. Bay Manufacturing Go., 83 Miss., 800 — in all respects confirmed and approved.

From the chancery court of Hancock county. Hon. Thaddeus A. Wood, Chancellor. The Bay Manufacturing Company, the appellee, was the complainant in the court below; Orrell and others, the appellants, were defendants there. From a final decree in complainant’s favor the defendants appealed to the supreme court. The case was once before in the supreme court, and is reported —Orrell v. Bay Manufacturing Go., 83 Miss., 800. The present appellants sued out a writ of error from the judgment of the state supreme court on the former appeal to the supreme court of the United States, but the same was dismissed because not from a final decree. Orrell v. Bay Manufacturing Go., 198 U. S., 581. The bill of complaint prayed an injunction restraining Orrell and others, appellants, from entering upon certain lands and boxing the pine trees thereon for turpentine purposes. The defendants filed a motion to dissolve the injunction, which motion was overruled, and an appeal on this decision was taken to the supreme court, which affirmed the decision of the court below and remanded the case to be further proceeded with. 83 Miss., 800 (36 South. Hep., 561). The case then went to trial on the merits on an agreed state of facts substantially as follows: That complainant was, at the time of the filing of the. original bill, the holder and owner, by assignment, of a certain lease for the purpose of boxing and working the timber on the property in question for turpentine purposes, and that, at the time of the execution of said lease — July 1, 1899 — to complainant’s assignor, the lessors, ITode and wife, were occupying and claiming said land under an incomplete homestead entry, having only made the formal application for said homestead entry; that complainant was the holder and owner by assignment of whatever right or interest the grantee of ITode and wife acquired by said lease; that on February 17, 1903, Orrell and others acquired from Hode and wife a written lease for turpentine purposes, and that at the time of its execution Hode had made proof and completed his homestead entry, and was then the owner by good and valid title from the United States; that at the time of the suing out of the injunction, Orrell and others had begun boxing the timber for turpentine purposes, claiming the right to do so under the lease from ITode and wife; that the question to be decided in this cause was the superiority of the respective leases. The court below rendered a decree making perpetual the injunction and canceling the lease to Orrell in so far as it affected the rights acquired by the complainant under his lease. We call the attention of the court to the recent decision of the United States supreme court in the case of Hartman v. Butter-field Lumber Go., 199 U. S., 335. While the supreme court of the United States upheld the decision of the supreme court of this state in the above-cited case, we believe tbat a careful consideration by tbis court of tbe opinion delivered in tbat case will lead tbe court to reverse its former decision in tbe case at bar. Tbe United States supreme court laid down tbe rule, in its opinion in said case, .tbat when patent passes to a patentee, tbe land is then ■absolutely bis, to do with as be pleases, regardless of any alienation or promise of alienation- be made prior to obtaining patent. If, after receiving patent, tbe patentee should choose to confirm and make good an alienation made or promised to be made before receiving patent, then be bad a right to do so; but if he chose otherwise, be bad a right to exercise tbat choice. We contend tbat, under said decision of tbe United States supreme court, when Mary and Henry Hode made final proof and received final certificate entitling them to patent, and received patent, tbe land was absolutely theirs, to do with as they pleased, regardless of any alienation or promise of alienation made by them before making final proof and receiving patent to said lands; and since they chose, after making final proof and receiving final certificate, to lease said lands to Orrell, said lease is tbe valid lease and superior to tbat granted before final proof was made by tbe said Hodes. In tbe case of Hwrtmam, v. Butterfield Lumber Go., in tbe supreme court of tbe United States, Justice White, in a dissenting opinion, goes even further than asserting tbe doctrine for which we' contend, and lays down tbe doctrine tbat, where a promise in writing to convey homestead lands is made before patent to said lands is obtained, and said promise is made good after obtaining patent by conveyance of said lands, and afterwards a second conveyance of said lands is made, patent having been previously obtained, tbe second conveyance will be valid and binding and superior to the conveyance made in the fulfillment of tbe promise in writing made before patent was obtained. It was determined by this court on the former appeal that' the leasing of trees on the lands for turpentine purposes, and sale of trees by homesteaders who had not perfected their entries, is not an alienation within .the meaning' of the revised statutes of the United States, sec. 2291, and this holding settled the right of the Bay Manufacturing Company to the trees in question. After a remand of the case by this court to the court below, a final decree was rendered in favor of the appellee, and it was rendered in exact accordance with the right as determined by this court. Orrell and others now prosecute an appeal. It must be that they are on their way to the supreme court of the United States, since they surely do not expect this court in this case to reverse its own final adjudications. Bight or wrong, the adjudication reported in 83 Miss, is the law of this case, as has often been decided. McDonald v. Green, 9 Smed. & M., 138; Martin v. Loftand, 10 Smed. & M., 317; Green v. McDonald,, 13 Smed. & M., 445; Smith v. Elder, 14 Smed. & M., 100; Stewart v. Stebbins, 30 Miss., 66; Henderson v. Winchester, 31 Miss., 290; Bridgeforth v. Gray, 39 Miss., 136; Swan v. Smith, 58 Miss., 875. We cannot understand how the appellants expect this court to reverse itself, nor what they expect to make of the decision of the United States supreme court in the case of Hartman v. Butter-field Lumber Go., appealed from this court, since, in that case, the judgment of this court was affirmed. If the court will read argument in support of an affirmance of the decree appealed from, we respectfully refer to the briefs for appellee and Judge Truly's splendid opinion, all published in 83 Miss., 806.