
    (January 26, 1900.)
    McGINNESS v. STANFIELD.
    [59 Pac. 936.]
    (PRE-EMPTION AND HOMESTEAD LAWS — DIRECTION OF SUPREME COURT TO District Court to Correct Findings. — An appeal from the action of the district court carrying out the directions of this court in correcting its findings and decree. The record examined and held that the district court had correctly followed the direction of this court.
    (Syllabus by the court.)
    APPEAL from District Court, Elmore County.
    N. M. Ruick, for Appellants.
    As this appeal so far as we know is without a precedent in this court, it is proper at the outset that we should state its purpose and the object sought to be attained thereby. It is to procure this court to examine the decree entered by the district court to ascertain if it conforms to the mandate of this court, and if it does not so conform to remand the case with appropriate directions for correcting the error. We at once concede that this appeal cannot be entertained for any other purpose than the one stated above, but that it is authorized for such purpose is abundantly supported by authority. (Krantz v. B. G. W. By. Co., 13 Utah, 1, 43 Pac. 623, 32 L. B. A. 828; Boberts v. Cooper, 20 How. 467, 480; Humphery v. Baker, 103 U. S. 736; Slate v. Levelle, 38 S. C. 216, 221, 16 S. E. 717, 17 S. E. 30; Zimmerman v. Turner, 24 Wis. 483; Mackall v. Bichareis; 116 U. S. 45, 6 Sup: Ct. Itep. 234; Aspen etc. Co. v. Billings, 150 IJ. S. 31, 14 Sup. Ct. Bep. 4; Smith v. Shoffer, •50 Md. 132; Martin v. Platt, 131 N. Y. 641, 30 N. E. 565.)
    E. M. Wolfe and Hawley & Puckett, for Respondents.
    The defendants in this appeal, J. J. and Ida McGinnes, rely not upon the transfer of Harvey Glenn, but upon actual appropriation of the waters of Cold Spring creek in the year 1887. "The defendant, Ida McGinnes, has used-the water of said creek from 1881, continuously, to the trial of this cause, except during the time that she was forcibly removed and kept out of possession of the same. The circumstances in this case do not warrant the court in saying that she abandoned the premises nor the use of the water thereon. (Welch v. Garrett, 5 Idaho, 639,. 51 Pac. 405.)
   HUSTON, C. J.

We held in the original ease, supra,, that, under the statutes of Idaho, all transfers of real property must be evidenced by an instrument in writing. The language used in that decision was as follows :“What we have here said applies as well to the proof offered by the defendant, Ida McGinness, in relation to her claim, to wit, a verbal transfer from Harvey Glenn. The deed subsequently procured by her from Glenn, some fourteen years after'he had left the country, could only have effect from its date.” The legitimate and inevitable effect of this decision was to date the right of Ida McGinness from the time when she, with her then husband, Smith, went into possession under the pre-emption entry of the latter, to wit, 1887, and this was so found by the district court in its corrected findings.

The abandonment of his family, and, per consequence, of his claim, by Clark Smith, did not work an abandonment of the pre-emption claim, so far as his wife and family were 'concerned. His wife, so long as she remained in possession of the land, had retained all the rights under the pre-emption claim which her husband would have had had he remained in possession. This, we believe, is settled law in regard to rights under the pre-emption and homestead laws as they then existed. The attempt of Hutchinson to take advantage of the apparently helpless and defenseless situation of the wife and family of Smith resulted, as it must and ought to have resulted, in his discomfiture, and the recognition and establishment by the land department of the federal government of the rights of the wife and family of Smith.

The contention of counsel that Mrs. Smith’s rights to the land in question were only such as she had by and through her husband cannot be sustained. It is contrary to both principle and authority, and directly opposed to the uniform rulings of the land department in that regard. The interruption of the possession of Mrs. Smith by the action of Hutchinson cannot be urged against her. (Welch v. Garrett, 5 Idaho, 639, 51 Pac. 405.) We find no error in the action of the district court, and its action herein is affirmed. Costs of this appeal to respondent.

Quarles and Sullivan, JJ., concur.  