The opinion of the court was delivered by: Waite, C. J.
A. H. Garland, for appellant.
A. T. Britton, J. H. McGowan, John F. Dillon, and Wager Swayne, for appellees.
This is a suit in equity, brought by John B. Nix, the appellant, on the second day of May, 1879, enjoin the execution of a judgment in ejectment recovered against him by Thomas Allen, the appellee, on the ___ of April, 1879, for the possession of the W. 1/2 and the S. E. 1/4 of the N. E. 1/4 of section 30, township 15 S., range 28 E., in Arkansas, and to obtain a conveyance of the legal title to the property, on the ground that Allen holds it in trust for him. The case shows that in 1846 Sarah Nix, the mother of John B. Nix, then a minor residing with her, took possession of the whole of the N. E. 1/4 of the section. Mrs. Nix had all the legal qualifications of a premptor, and while in possession built a house on the N. E. 1/4 of the quarter section, and cleared and cultivated a portion of the land on that and on each of the other quarters of the quarter. The principal part of the clearing and cultivation, however, was on the quarter where the house stood. On the ninth of February, 1853, congress passed an act granting lands to the state of Arkansas to aid in building a railroad from a point on the Mississippi, opposite the mouth of the Ohio, to the Texas boundary line, near Fulton, in Arkansas. 10 St. 155, c. 59. The lands now in question lie within the limits of that grant, and were withdrawn from entry on the nineteenth of May, 1853, but the granting act contained the usual reservation in favor of preemption settlers. On the twenty-second of April, 1853, Mrs. Nix made and filed her declaratory statement and proof for the pre-emption of the whole of the N. E. 1/4 of the section. In her statement she fixed the first of April, 1853, as the date of her settlement on the lands. At the time of filing the statement and proof she made no payment. On the twenty-seventh of March, 1854, congress passed the following 'Act for the relief of settlers on lands reserved for railroad purposes,' (10 St. p. 269, c. 25:) 'That every settler on public lands which have been or may be withdrawn from market in consequence of proposed railroads, and who had settled thereon prior to such withdrawal, shall be entitled to pre-emption at the ordinary minimum to the lands settled on and cultivated by them: provided, they shall prove up their rights according to such rules and regulations as may be prescribed by the secretary of the interior, and pay for the same before the day that may be fixed by the president's proclamation for the restoration of said lands to market.'
On the thirty-first of March, 1854, Mrs. Nix made a pre-emption cash entry of the N. E. 1/4 of the N. E. 1/4 of the section, and a patent for this tract was issued in her name under that entry on the tenth of December, 1874. In her affidavit to support the entry she fixed the first of April, 1853, as the date of her settlement, the same as in her original declaratory statement. It is now claimed that this entry was not her own act, but the testimony shows unmistakably that it was. She was feeble at the time and unable to go to the land-office herself, but the business was done for her by Benjamin Nix, her nephew and the guardian of John B. Nix, who furnished the money to make the payment from funds in his hands as guardian. Mrs. Nix had no means of her own, and the $50 which was required to pay for the 40 acres was all that John B. had. Neither the mother nor the son was able to buy more than was then entered. On the twenty-eighth of September, 1858, Mrs. Nix conveyed the land she entered to John B., who arrived at full age during the year 1857. Mrs. Nix and John B. Nix lived together in the house on the N. E. 1/4 of the quarter section until her death in 1863, and John B. Remained there down to the time he filed the bill in this case. While occupying the N. E. 1/4 of the quarter they have used and cultivated some part of the other quarters, but the actual residence, both of the mother and son, has always been on the part that was entered by and patented to the mother. Mrs. Nix left other heirs besides John B. Nix, some of whom were living when this suit was begun. On the sixteenth of January, 1855, the state of Arkansas transferred the grant of congress, so far as it related to the lands in dispute, to the Cairo & Fulton Railroad Company, 'subject to all the conditions, limitations, and restrictions contained in the act of congress aforesaid, and in the act of congress entitled 'An act for the relief of settlers on lands reserved for railroad purposes,' approved March 27, 1854.' The act by which this transfer was made contained the following provision: 'That citizens or heads of families, being settlers or occupants previous to the passage of this act on the land herein transferred to the said Cairo & Fulton Railroad Company, shall each be entitled to a preference right of entry of any legal subdivision of land not exceeding one hundred and sixty acres, which shall be upon such legal subdivision as will include the residence of the said settler, which preference right shall be at the price of two dollars and fifty cents per acre, which preference right of entry shall exist from the passage of this act, and for three months after notice has been given for three successive weeks in a newspaper published in the city of Little Rock, that the said land is in market.' Laws Ark. 1854-55, p. 150, § 1. This provision of the act of 1855 was repealed on the twenty-sixth of November, 1856, and the following enacted in its place:
'Sec. 2. Every person who, on the ninth of February, 1853, occupied, by residence and cultivation thereon, any tract of land comprised in the grant made by virtue of, and under the provisions of, such act of congress of February 9, 1853, may purchase from said Fulton & Cairo Railroad Company, at two dollars and fifty cents per acre, the legal subdivision of such land as shall include his residence and actual improvements, not to exceed one quarter section, by complying with the following conditions:
'Sec. 3. Such claimant shall, within three months after said lands are selected and confirmed to said company, and a list or plat thereof filed in the recorder's office in the county in which such lands may lie, file with the auditor of state his own affidavit, accompanied by the affidavits of two disinterested freeholders of his county, describing the land claimed by legal subdivisions, proving the fact of such occupancy, residence, and cultivation upon such legal subdivisions with a view to actual cultivation and settlement, before the day above specified, said company may, by giving reasonable notice to such claimant, appear before the auditor and controvert the facts set forth in such affidavits, and the auditor may swear witnesses, hear proof, and, for cause shown, set aside any such claims: provided, that no such claim shall be set aside for misdescription, or error in form only, founded on mistake; but on affidavit showing such mistake, reasonable time may be given for the filing of corrected proof.
'Sec. 4. Said claimants shall, after three months, or as soon thereafter as said company shall be in a condition to make title, pay to said company the consideration for said land as hereinbefore provided, whereupon he shall be entitled to receive from said company a deed for the same, but in case of failure to file said proof, or pay said consideration money within the respective time specified, the right to make such purchase shall cease.' Laws Ark. 1856, p. 4, §§ 2, 3, 4.
On the first of February, 1859, another act was passed on the same subject, which contained this provision:
'Sec. 3. Be it further enacted, that every person who, on the first day of November 1858, resided on or cultivated any improvement on any of the land comprised in the grant made by virtue of the act of congress approved February, 9, 1853, may purchase from the said Cairo & Fulton Railroad Company, at two dollars and fifty cents per acre, one hundred and sixty acres, which may include the actual residence or the farm of such person, as he or she chooses to elect, by complying with the conditions prescribed by an act passed by the last general assembly of this state, entitled 'An act to amend an act to aid in the construction of the Cairo & Fulton Railroad,' approved January 16, 1855, which act was approved November 26, 1856; and provided, further, that, until such default mentioned in said act, the owners of such improvements shall be entitled to use and occupy the same free of rent or charges.' Laws Ark. 1858-59, p. 62, c. 61, § 3.
And, finally, on the twenty-eighth of March, 1871, the following was enacted:
Section 1. That where any settler, who, on or before the eighth day of March, 1870, was residing and made improvements on the lands belonging or claimed by the Cairo & Fulton Railroad Company, or its branches, shall have the right to purchase the same, not to exceed one hundred and sixty acres, under the legal subdivision of said lands, and including the homestead and improvements of such settler, at not exceeding the rate of two dollars and fifty cents ($2.50) per acre, in preference to any and all other persons, from and after the passage of this act, and for three (3) months after said land has been advertised according to law.
'Sec. 2. That any person authorized to purchase land under the provisions of section one of this act, tender to the authorized agent of said Cairo & Fulton Railroad Company, at the principal office of said company, or at the principal office of the branches of said Cairo & Fulton Railroad Company, and to the authorized agent thereof, the amount of the purchase money of said land, and demand a title therefor, or his preference right thereto shall be barred.' Laws Ark. 1871, p. 289, c. 59.
On the thirteenth of July, 1857, the commissioner of the general land-office certified these lands with others to the Cairo & Fulton Railroad Company under its grant, and on the eighteenth of February, 1858, the company filed in the recorder's office of Lafayette county, which then embraced the lands in dispute, a list of all lands in that county 'selected and confirmed to that company.' On the fifteenth of April, 1874, the land commissioner of the railroad company published in the Arkansas Daily Gazette a notice that the lands of the company between Little Rock and the Texas line would be sold at the office of the company on and after June 16, 1874, reserving, however, mineral lands and lands through which the road ran. The road went through the N. E. 1/4 of this section. The Gazette was a newspaper published at Little Rock, and designated by the governor of the state for the publication of official notices, and the advertisement was continued from the fifteenth of April to the fifteenth of June, 1874. The notice also called on all actual settlers who had not made application to purchase to do so before the day of sale. On the twenty-eighth of July, 1874, John B. Nix went to the land commissioner of the company and claimed the right to purchase the N. E. 1/4 of the section at $2.50 an acre. He, at the same time, tendered $400 in payment of the purchase money, and demanded a conveyance. The commissioner would not admit his right to buy, and refused his tender. On the fourteenth of May, 1875, the company sold and conveyed the lands in dispute, being the 120 acres, to Thomas Allen, the appellee, and on the twenty-third of the same month he began a ...