Harris v. Harris

McKinstry, J. In this action for divorce, the plaintiff claims a moiety of the land patented to the defendant, on the ground that the money paid for the government title belonged to the community.

1. Even if it appeared that the money was paid out of community funds, the land would be the separate property of the wife. With full knowledge and consent of the plaintiff, the land was proved up and paid for in her name, and the proof of her occupation and “ declaration,” or affidavit, was as necessary a pre-requisite to the acquisition of the government title as was the payment of the price. The patent is a record which proves the facts which preceded its issue, on proof of which the proper officers of the United States were authorized to issue it. For certain purposes, the possession of either spouse is the possession of both. But here the pre-emption declaration and exclusive occupation of the defendant pre[316]ceded her marriage with the plaintiff, and constitute part of the acts which culminated in the certificate of purchase and patent. The plaintiff ought not to be permitted to ignore her declaration and possession (without proof of which she could not have received the benefits of pre-emption), and treat the acquisition of the government title simply as an ordinary purchase, made after marriage, with community funds. Under the pre-emption laws, a woman, after her marriage, may secure a pre-emption based on occupancy, the right to which is her separate property. That was done in this case, and the plaintiff, who seeks to benefit by the transaction, cannot say the pre-emption title was not acquired legally and regularly.

She then had a right to acquire the United States title. Can the husband say that he obtained an interest in the pre-emption claim prior to the certificate of purchase by reason of the payment, with his consent, of money of which he had the control ? Such a claim would seem to be invalid, because the express or implied agreement that he should have such an interest would be in fraud of the United States statute., If she “ directly or indirectly made any agreement or contract, in any way or manner, with any person whatsoever, by. which the title she might acquire from the government of the United States should inure, in whole or in part, to the benefit of any person except herself,” it was void. (Act of Congress of September 4, 1841, sec. 13.) It will not do to say that no contract was made; that the interest of the plaintiff as a member of the community arose out of the relation the parties occupied toward each other under the state law. If he has an interest in this land, it is not one created by the marriage, but by reason of the fact that community money was paid for it. This was done, as the case shows, with his express consent; and in any event, his consent would be implied. The attempt of plaintiff, therefore, is to enforce a claim growing out