Mulloy v. Cook ( 1893 )

McOLELLAN, J.

We do not think the present bill is open to the objection urged against it by the demurrers. It can not be said that the contract sought to be specifically enforced is violative of the public policy of the United States. We know of no statute, nor of any general policy deducible from the statutes of the Federal Government, which would authorize or admit of a distinction being made in favor of, or against, the right of any citizen to purchase public land. Had nothing been done by the respondent looking to the entry of the land in controversy as a home, the complainant could have purchased it under section 2357 of the Revised Statutes, for one dollar and twenty-five cents per acre. The effort to homestead it having failed, the land again became public in every sense, and purchasable by the complainant under that section. The Government had no interest and no policy to be subserved ha securing to the would-be homesteader a prior light to purchase as agaiiast the complainant, or any other citizen. No pre-emption or homestead right of the individual or policy of the Government is involved at all. The land, once purchased by aud patented to either the person who made the 'entry or to another, may be alienated in all respects as any other real property. Since the purchaser is not charged with any of the duties as to occupancy, cultivation and the like, which would' have been imposed upon him as a homesteader, and since the land itself has none of the exemptions from incumbrances and prior personal obligations which would attach to it as a homestead, it is a matter of no consequence to the Government or its policy that, even before the purch ase, a contract had been entered into on the part of the purchaser to convey it to another upon patent issuing. Every governmental purpose-would be equally conserved whether the purchaser intended, and did in fact continue to hold the land, or intended to convey and had made a contract to convey, and did in fact convey it to another. The only change in existing law effected by section 2 of the act of June 15, 1880, was to allow any purchaser who had made the payment on homestead entry required by Revased Statutes, § 2290, or any person to whom he had by written instrument attempted to transfer the rights conferred on him by such entry, a credit on the sum otherwise payable in purchase of the land to the amount paid on the entry. If no such transfer is executed by the entry-man, none but he is entitled to this credit, though any other person may purchase paying the' full price, if such instrument has been executed, the nominal transferee alone is entitled to the credit. In either event, the Government, not being interested in the uses to which the land is devoted, nor in respect of the persons who shall own it, no previous contract to convey it, or subsequent conveyance, whether in consonance with a previous contract or not, can in any degree be said to violate any statute or the public policy of the United States. In the case at bar, it may be true that the complainant will ultimately get the benefit of the credit in amount equal to the sum originally paid by the respondent, but that is a matter between the parties to this suit, and having, we conceive, no bearing upon the question of public policy presented by the demurrers.