that thedefendants, well knowing the premises(took possession of said logs, and inanufacturedthem into lumber, which theyc,onverted to their own use,1io.the damage of the plaintiff in the sum, oU6; 720. The answer of the defendants contains three defenses, the first of which is demurred to by the plaintiff. .In effect, the defense is that in November, 1880, said Green, being'qualified to enter land under the homestead act, took possession of the N. f of the N. E. t, and the E. t of the N. W. t, of the section aforesaid, and.filed his affidavit iIi the proper land-office as a settler thereon; under said act, and paid the fees required by law;. that in January , 1886, he :made his final proof of compliance with said act before the proper register and receiver, whe::> thereupon made and delivered to him a final certificate to that effect, and that he is entitled to a patent for the land; that ·the· defendants bought 239,680 feet of logs of said Green, which ,were cut off, said homestead during the time he occupied the same under the act, and that said logs are a part of those mentioned in the complaint, and were only worth 15 cents per 1000. On the argument of the demurrer, counsel for the plaintiff cited U.8. v. Minor, 114 U. S. 233, 5 Sup. Ct. Rep. 83"6, to prove that the United States are not precluded by the proceedings before the land-officers, under any of the various acts for the disposition of the public lands to settlers thereon, to show that such officers have, by the falsehood or fraud of the applicant, been imposed on, and induced to give him a final certificate in a case where he was not entitled to the same; while counsel for the defendant cite and rely on Smith v. Ewing, 23 Fed. Rep. 741; tQprOVe that such certificate cannot be questioned or set aside except on a direct proceeding. But no question of this kind arises here. Under any circumstances, the oertificate is at least'primafacie evidence of the facts arid conclusions stated therein. Neither does U. S. v. Minor countenancethe idea that the certificate is subject to a collateral attack, but can only be set aside or overcome by a suit in equity instituted for that purpose. . . .' The demurrer to the defense in this case 'admits the facts stated thereini the gist ,of which is that Green entered the premises under the stead act, andbaving duly performed the subsequent conditions required by the same, iurd made due proof thereof, he received, in due form, a certificate to that effect from the register and receiver of the proper landoffice. , ' . A settler on the public lands, under the homestead act, must reside on and cultivate the same for five consecutive years before he is entitled to a Section 2291, Rev. St. In the mean time, the title to the land,and the timber thereon, is in the United States. and the occupant is not entitled to cut or remove any timber therefrom except as allowed by seetion 4 of the act of June 3, 1878, (20 St. 90,) which provides, ineffect,that an "agriculturist" on the public land-a homesteader or pre-emptioner-shall not out or'remove timber therefrom except in the ordinary preparation of his "farm for tillage;" the manifest meaning of which is that the timber shall not be cut for the sake of the
UNITED STATES V. BALL.
timber, but for the improvement of the, land. And this implies that the cutting and tillage shall not be far apart; that the plow must-follow the axe. U; S. v. Williams! 9 Sawy. 377, 18 It'ed. Rep. 475. In this matter the United States is to be regarded as any other vendor of real property, and the settler, prior to the issue ofthe certificate, as a vendee of such properly; in possession under an uncompleted contract of purchase. A person who goes into possession of real property under a contract of purchase, nnd abandons or fails to comply with the same, is liable in trespass for'the profits of the land, or waste committed thereon, during his occupation. lWashb. Real Prop. 377; Smith v. Stewart, 6 Johns. 46; Banerqft v. Wardwell, 13 Johns. 489. But where a conveyance has been made: to the vendee in pursuance of the contract of sale, or he has become entitled, by reason of compliance with the terms of such contract, to receive one, his right in and to the land relates back to the entry under the contract, and he cannot be held liable to the vendor for any profits he may have received from the land, or any waste committed thereon, in the mean time, although the latter were of such a character as cutting and removing timber thereon. under circumstances that would have given the vendor a right, in equity, to an injunction to prevent the impairment oithe value of the property, pending the performance of the contract, and while it might, by the failure of the vendee, be thrown back on his hands. This, in my judgment, is the relation between Green and the United States since the issue of the final certificate. He has complied with his contract of purchase, so to speak, and has established fact totbe satisfaction of the officers designated by the law for that purpose,and is entitled to a patent for the premises. The right to a patent, as to the government, is equivalent to one issued. Stark v. Starrs, 6 Wall. 418. But it has been suggested that, the defendants having received this timber from the settler, and converted it to their own use, while the contract of purchase was' only partly performed, and the land belonged to the United States, they are liable therefor. Under the circumstances, they certainly took the .chances of Green's complying with the law and 'obtaining the certificate. But if the performance- of his contract, and the issue of the final certificate, relieves Green from liability for cutting and removing this timber when and as he did, it ought to prevent the United States from an action against his vendees for converting it to their use. Before the timber was cut, the United States had disposed of the land to Green, and afterwards acknowledged the performance of the conditions of sale. The plaintiff has had pay for the timber once, and has no right to claim it again from these defendants. If A. takes B.'s horse, and sells him to C., but afterwards pays B. for it, the latter cannot then maintain an action against C. to recover the .horse or its increase. The effect the whole transaction between Green and the United States is to establish the right of the former to the land, and the timber thereon, from the time of the entry in the land-office; and all those who
claim under him for eitherJhe :lat:ld or timber are to stand. in. ·his shoes. . There is an allegation tagged ,on to this defense, toth'e effect that this Ilgriculture," to timber wa,s cut for the purpose of clearing the land in the case which no attention has been paid. ' There is another: founded on that fact. But this defense admits, in EltI:eet, that the timber was not cut primarily for the of preparing the land for tillage, within the meaning oBhe proviso to section 4 .of the act of 1878, but for the purpose of export and sale; and it is sustaine.d"dn the theory that the subsequent compliance with the law under which the entry was made, and the issue of the :final certificate' to that effect, ,makes Green in legal contemplation the owner of the .land from the date of his entry, with a right to cut and dispose of the timber thereon as:he saw proper. The demurrer is overruled.
UNITED STATES «(Jw-cuit (JOUf't,
e. BALL and another. August 5, 1887.)
DEAD'!, J. This action was brought on the sllme da)f with the foregoing one, to recover $8,250 damages for the conversion by the defendants of 2,750,000 feet of timber cut .and removed by said Green from the premises aforesaid, between January, 1884, and January, 1887. . . The answer of 'the defendants contains a defense similar to the one already conlogs in question. sidered, with the addition that the defendants, in and manufacturing them into lumber, were acting as the dIrectors and agents of ' the Yamhill Lumbering Company. a corporation formed under the laws of OrElgon; and that only 846,000 feet of logs were so obtained by them,-141,000 prior to Janua!}' 11. 1886"when the tinal certificate wae issued to Green, and 701i,OOO afterwards. The demurrer to the defense is sustained, for the reason already given.
S. D. Iowa. June Term, 1887.)
A railway ,corporation was insolvent, and its stock worthless. One G. and his associates, in payment of a debt due them, accepted in good faith by resolution spread on the minutes of the corporation. the'unissued stock of the company at 20 cents on the dollar. Held that the transaction, being for the benefit of.the company, the personal representatives of G. were not liable to a judgment creditor of the insolvent ,company for the 80 cel).ts remaining unpaid on each dollar of the stock. The rule that an issue of stock by the officers of a corporation to a party, with a stipulation exempting the latter from full payment, is void as against creditors, does not apply to such case, and this notwithstanding that the debt upon which the present suit was brought was contracted subsequent to the stock transaction. 1
Bee note at end of case.