Dawson v. Merrille

2 Neb. 119

Opinion

Mason, Ch. J.,

after stating the contract and the act of Congress, proceeded: —

It is by virtue of his affidavit, in which he swears that the entry is for his exclusive use and benefit, and not directly for the use or benefit of another, that the homesteader is permitted to enter the land in the first instance. If he abandon the land, or be absent from it six months during the five years, it reverts to the government. This provision is designed to secure a continuance of the state of things to which, in his first affidavit, the homesteader swears ; and then, to prevent any evasion, by mortgaging the land, or by contracting debts, and letting it be charged by judgment and sold on execution, it is explicitly provided that the tract shall not be liable to debts contracted before the issue of the patent; and then, when the patent is to be issued, he must swear that no part of the land has been aliened.

These provisions, if they do not directly prohibit the making of this contract, do yet most clearly indicate a policy adverse to such contracts. The cases are numerous in which it has been held that such contracts are void. Marshall v. The Baltimore and Ohio Railroad, 16 How., 314; Coppell v. Hall, 7 Wallace, 542. The Court will not lend its aid to the enforcement of such contracts by decreeing their specific performance or otherwise.

The judgment of the District Court was right, and must be affirmed.

Judgment affirmed.