Egbert v. Bond

BRAOE, P. J.

This is an action in ejectment in common form to recover a one hundred and twenty acre tract of land in Ozark county. Tbe case was tried by tbe court without a jury, tbe issues found for tbe defendant, and from tbe judgment in bis favor tbe plaintiff appeals.

In support of her claim tbe plaintiff introduced in evidence a patent from tbe United States dated September 2, 1892, to one Eli Cobb, for tbe land in question, and it was admitted that tbe plaintiff has a deed to tbe premises from said Cobb and that she purchased tbe same for a valuable consideration. It was also admitted that tbe defendant has a deed to tbe premises from Martha E. Oobb, tbe divorced wife of tbe said Eli Oobb. Tbe patent was issued to Oobb on deposit of a certificate of tbe register of tbe land office at Springfield, showing that bis claim to said land bad been established and consummated under tbe homestead laws of the United States. Tbe original entry seems to have been made in 1884. Tbe *22 defendant to maintain bis claim and defense under tbe deed from Mrs. Oobb, introduced evidence tending to prove that tbe said Oobb, with bis said wife and tbeir children, continued to live together on said tract of land, improving and cultivating tbe same, from tbe time of tbe original entry until about tbe fourth of July, 1890, when be deserted bis family and went off with another woman; that Mrs. Oobb, continuing to reside on tbe premises with her children thereafter, on or about tbe first of October, 1890, made final proof, as tbe deserted wife of tbe said Eli Oobb, on bis entry, and received a receipt for such proof. That she afterwards obtained a divorce from tbe said Oobb, sold tbe land to the defendant, and executed a deed to him therefor, under which be went into, and since has continued in tbe possession thereof. Neither of tbe two deeds, tbe decree of divorce, or tbe receipt referred to are set out in tbe record, and we are not advised further than as stated, as to tbeir character or’ contents. We fail to find in tbe facts proven any defense to plaintiff’s cause of action, on her legal title. Tbe United States statute in regard to homestead entries, after prescribing tbe conditions upon which tbe bead of a family may, upon mating tbe required affidavit, enter unappropriated public lands, provides “that no certificate shall be given or patent issued therefor until tbe expiration of five years from tbe date of such entry, and if at tbe expiration of such time, or at any time within two years thereafter, tbe person making such entry, or if be be dead, bis widow, or in case of her death bis heirs or devisees,.proves by two credible witnesses that be, she, or they have resided upon or cultivated tbe same for tbe term of five years immediately succeeding tbe time of filing tbe 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 be, she, or they will bear true allegiance to tbe government of tbe United States, then in such case be, she, or they, if at that time citizens of tbe United States, shall be entitled to a *23 patent, as in other cases provided by law.” E. S. IT. S. 1878, sec. 2291.

The evidence tends to prove that Eli Cobb at the time he left his wife had complied with all the requirements of the law so as to entitle him to a patent upon making final proof of residence, cultivation, non-alienation and loyalty as required by this statute. His equitable right to have the legal title vested in him by the government was complete, and he could not be deprived of it by his deserted wife or any other person making this proof for him. By whomsoever made, it inured to his benefit, and the government so recognizing his right, the patent was issued to him, thus vesting in him the whole title, both legal and equitable, which passed by his deed to the plaintiff, who should have had judgment, as there was no evidence tending to show that this title was ever in any way transmitted to his wife under whom the defendant claims. The judgment will therefore be reversed and the cause remanded to be proceeded with in accordance with this opinion. All concur.