§ 63. § 64. CHAPTER VI. HOMESTEADS. § 62. General Sketch. What Lands Subject to Homestead Laws. § 62. General Sketch.-The homestead question, or the granting of free homes from and on the public domain, became a national question in 1852. In that year the free-soil national democratic convention, by one of the resolutions in its platform, adopted and strongly urged the passage of such a law. Thenceforward it was in the platform of political parties, and was freely discussed both in private circles and upon the rostrum. Several homestead bills were at different times introduced in congress, and in 1860 one of them passed both houses, but was vetoed by President Buchanan. In 1862 another bill passed congress, which was on the twentieth day of May of that year approved by Abraham Lincoln. This act has since been several times amended. The present homestead law contains all the beneficial features of the pre-emption act, with the additions suggested by experience and the changed conditions of national life. It contains one feature as broad in its terms and as beneficial in its principle as the domain it covers. It is as follows: "No land acquired under the provisions of this act shall in any event become liable to the satisfaction of any debt or debts contracted prior to the issuing of the patent therefor." Previous to 1862 pre-emption was the only mode of acquiring title, but the homestead act is now the approved and preferred method of obtaining title to the public lands. For this reason, and the further reason that the same rules of practice (except ing statutory rules) which control under the homestead laws prevail also under all the different forms or modes of acquiring title to public lands, the homestead laws will be first considered. § 63. What Lands Subject to Homestead Laws.-All lands belonging to the United States to which the Indian title has been or may hereafter be extinguished-excepting: 1. Lands included in any reservation, by any treaty, law, or proclamation of the president for any purpose; 2. Lands included within the limits of any incorporated town, or selected as the site of any city or town; 3. Land actually settled upon and occupied for purpose of trade or business, and not for agriculture; and, 4. Land on which are situated any known salines or mines are subject both to the pre-emption and homestead laws, under the conditions, restrictions, and stipulations provided by law. R. S. 2257, 2258, 2259. But an entry under these laws can not be made of land unfit for cultivation. Copp's L. L., vol. 1, p. 116. § 64. Railroad Grants.-Congress has adopted the policy of keeping the public lands open to occupation and appropriation by settlers, notwithstanding they may possibly fall within the limits of a railroad grant, when the final and definite route of the road is surveyed. 19 Stat. 35; Railroad Co. v. Baldwin, 13 Otto, 436. By the act of April 21, 1876, "homestead entries within the limits of any land grant prior to the time when notice of the withdrawal of the lands embraced in such grant was received at the local land office of the district in which such lands are situated," will be confirmed, if all the proceedings on the part of the settler are regular. And by the act of March 3, 1879, all the even sections within any land grant to railroads, whether they have been previously withdrawn by the president or not, are opened to settlers under the homestead laws to the extent of one hundred and sixty acres to each settler. School lands are open until a survey in the field. The swamp-land grant is a grant in præsenti; and if the lands were swamp at the date of the grant, they belong to the state. This question is frequently tried in the courts. Valid pre-emption and homestead entries are usually reserved in railroad grants, and the supreme court of the United States, in the case of R. R. Co. v. United States, 2 Otto, 733, holds that reserved lands are absolutely and unconditionally excepted from these grants. All grants across the continent are grants in præsenti; but prior to the definite location of the line of the roads they do not prevent settlers' rights from attaching to the land, unless there is either a legislative or executive withdrawal of the particular tract sought to be entered; and the president can not withdraw land opened to settlement by act of congress. See title, Railroad Grants. § 65. Lands at Private Entry.-Lands once offered at $2.50 per acre, but reduced in price to $1.25, though subject to entry by settlers, are not subject to private entry until reoffered at the reduced rates. Letter of Acting Secretary Josselyn, Copp's L. O., Dec. 1882. § 66. What are Mineral Lands.-Lands valuable for minerals, such as slate, fire-clay, borax, mica, umber, petroleum, coal, salt springs and salines, diamonds, gold, silver, cinnabar, lead, tin, and copper, whether in place or places, are exempt from the operation of the homestead laws. R. S. 2318; Morton v. Nebraska, 21 Wall. 660; Opinion Attorney General, August 31, 1872. As to lime and gypsum, see title, Timberculture and Stone Act. $67. Mexican Lands.-Mexican grants are by treaties protected from sale or disposition by the United States to any other than the Mexican grantees or their heirs or assigns, and the lands within their exterior limits prior to survey are not open to homestead entries, and no land inside of a confirmed survey can ever be opened to such entry. § 68. What Persons may Enter.-Every person who is at the head of a family, or who has arrived at the age of twenty-one years, and is a citizen of the United States, or who has filed his declaration of intention to become such as required by the naturalization laws, is entitled to enter one quarter-section. This includes all single women who are citizens and over twenty-one years of age. R. S. 2289. § 69. Married Women and their Rights.-In case a single woman marries after entry of land, and dies before issuance of patent, if the law has been complied with, and there are no heirs or distributees except the husband, the patent will be issued to her as Mary Doe, formerly Mary Roe. A woman di vorced from her husband is, in the administration of the homestead law, entitled to no rights acquired during coverture by the husband; and if there be an infant child living at the time of the homesteader's death, the right and fee will inure to the benefit of the child, notwithstanding a will devising the land to other parties. Copp's L. L., pp. 443, 446. When the child of a deceased soldier is a married woman under the age of 21 years, she is a soldier's orphan, and may make entry, and where a woman holds a homestead of 80 acres and afterward marries, it has been held that she is entitled to an additional entry under the act of March 3, 1879. Copp's L. L., 1882, p. 468; Copp's L. O., vol. 6, pp. 103, 190; Id. vol. 7, p. 148; Id. vol. 8, p. 121. When a single woman makes a homestead entry and afterwards marries, her husband in the event of her death can not purchase in his own name, but the patent may issue to the heirs of his wife. Letter of Commissioner McFarland, Copp's L. O., Jan. 1883, p. 196. A homestead party can not by his or her will defeat the law which provides that in case of the death of both father and mother, leaving minor children, the home rights shall inure to the benefit of such children. Copp's L. O., April, 1882, p. 6. A wife can not claim settlement during coverture; and abandonment of an entry by a husband is abandonment by the wife; but a deserted wife may purchase under the act of June 15, 1880, the land embraced in her husband's homestead entry, notwithstanding a contest initiated several months after she had left the land. Copp's L. O., Aug. 1882, p. 97; Id., Sept. 1882, p. 116. It has been held, that where a husband and wife have resided upon public land for more than five years, and the husband dies without having made entry of the land, the wife can receive no benefit from the fact of such residence, but she will be entitled to make an original entry for herself. If the husband, while living, has made entry, she is entitled to credit for residence in making final proof back to the date of settlement. Copp's L. O., vol. 8, p. 175. A polygamous wife can not enter if she allows her pretended husband to control her acts, and maintains marital relations with him, because the law requires that the entry must be made for the exclusive use and benefit of the applicant. Copp's L. O., vol. 6, p. 107. It is probable that the first wife of a polygamist, who does not maintain marital relations with her husband, who supports herself, and is not controlled by him, and is in other respects qualified, may enter lands, provided her marriage contract was entered into under the rules, customs, and laws of the Mormon church sanctioning polygamy. Such a contract is not surrounded by the conditions required to constitute marriage in any civilized country. It is against public policy, and impregnated with a vice that can not be eradicated, to wit: the contract itself carries with it a consent on the part of the wife that the husband may take and live with other women as his wives. I am not aware that the question has ever been raised, but it seems to me probable that even the first marriage may be declared void. § 70. When a Homestead Right is Assignable.-The supreme court of the United States at the October term, 1879, in the case of Hall et al. v. Russell et al., held, that where a settler upon public land dies before he has complied with the law in reference to residence and cultivation, he has no devisable estate, and the children take nothing by virtue of his entry. Heirs of a deceased settler do not take their rights by descent, but as donees of the government., 101 U. S. 503. Under some tionation Act" § 71. Rights of Heirs.-A woman may consummate her deceased husband's entry and receive a patent in her own name, and afterwards may make another homestead entry in her own right. Decision of secretary, Copp's L. L., 1882, p. 442. § 72. Prior to the act of May 14, 1880, no homestead rights could be conveyed, nor even under that act is the preference right of entry, by one who secures a cancellation of a prior entry, assignable. Copp's L. O., Oct. 1882, p. 131. Certain Indians, mentioned in 18 Stat. 420, and R. S. 231013, are entitled to the benefits of the act. Every soldier, sailor, marine officer, or other persons coming within the provisions of the act may, as well in person as by agent, enter upon such homestead by filing a declaratory statement, etc. |