The Wenatchee daily world. [volume] (Wenatchee, Wash.) 1905-1971, 1909-01-05
h0[OP HEIRS HAVE No
EQUITY IN TOWNSHIP
CONTINUED from First Page.)

| (COntlnUe0 from f1ISt f2kc.J
kind or character of title did con.
gress intend to confer upon the home
stead entryman when it authorized
the acquisition of title to public
lands by virtue of the operation OF
the homestead law?
In case where the entryman dies,
leaving a widow, the congressional
intent is easily ascertainable. for we
have an express statutory enactment
providing for such contingency;
land in McCune VS.. Essig we have the
federal Interpretation OF that stat
lutte, at least so far as it affects the
rights OF a surviving widow. But in
a case where the wife dies, leaving
the entryman surviving her, there is
no express statutory declaration of
the nature of the title the survivor
lshall have, and there Is no federal
decision on that exact question.
In such a contingency I hold that
the congressional intent is to be
gathered from consideration Of the
whole body of congressional legisla-
ton relative to the acquisition of
title to homestead lands; and that
when the intent is thus ascertained
it just as surely and positively be-
comes the law as though it had been
Expressly stated in terms; and that
we are not, in such a case, relegated
to the state law as argued by plant
ifs.
Following up this idea, 1 also hold
that if upon consideration Of the
operation and effect of the various
provisions of the homestead laws,
and of the practice and procedure
authorized thereby. it is found they
harmonic with the theory that the
husband and entryman take the
homestead land as his sole and sepa-
rate property, and are inconsistent
with the theory that the wife &C
quires a community interest therein,
then it becomes a matter of sure in
ference that congress intended by its
, homestead patent to convey the land
therein described to the husband
therein named, free and clear of anv
community claim or interest o. his
wife; for it cannot be supposed that
congress intended the wife of the
, entryman should have a property
right in the land embraced in her
husbands entry, and at the same
time would maintain laws and au-
thorize procedure inconsistent with
and destructive of that right.
Applying this method of investiga-
ton as a means of solving the ques-
ton raised by the motion. let us rs
a basis therefor, suppose the follow
ing case
A man and his wife reside upol
, the homestead i1nd entered by tn:
husband for the full period of five
years, complying with every require
ment of the law in reference to resi-
dence and cultivation. Now, in the
language of the books, the land has
been earned and nothing remains
to be done to call forth the issuance
of a patent except to submit to the
{ proper officers the final proof" Of
= the foregoing facts. No further resi-
dence on or cultivation of the lant
. is necessary, and the husband may
submit the proof at any time within
two years after the expiration of the
FIVE years succeeding the date o.
entry. 1t would seem that If thu
wife ever did or ever could acquire
community property interest II
, the land, her rights equitably con
!, sidered, would now be complete.
, But suppose the husband fails t.
, prove up within the required time
Notice is then served upon him tt
, show cause within a specified time
{ why his entry should not be can
, celled, failing in which the entry 1!
| in fact cancelled and the land re
, stored to the public domain. But the
/ practice does not require that thu
wife be served with notice Of an,
) kind, and the land might be law
fully restored to the public domain
: and might be entered by stranger
| without her knowledge or consent.
) Suppose again, that third party
{ initiates a contest against the entry
with a view to securing its cancella
tion by an adversary proceeding
The law requires notice to the entry
man. but not to his wife. The entry
man might defend, or at his option
! might make default; but in eithel
event, for cause deemed sufficient
t%Lo 1900, ao,,1d 10 ooncoflor