
    Millikin & Co. v. Carmichael & Flynt.
    
      Bill in Equity for an Injunction.
    
    I. Lease of lands entered as a homstead; invalid uMen executed before final proof of entry — Where one who makes a homestead entry of government lands leases the timber interest in said lands before final proof of the entry, such lease is absolutely void and conveys 'no interest to the lessee.
    Appeal from the Chancery Court of Geneva.
    Heai'd before the Hon. William L. Parks.
    The bill in this case was, filed by the appellees, Carmichael & Flynt, against the 'appellants. It was, averred in the bill that the complainants, were; the transferrees ■of a lease of timber on certain lands to be used for turpentine purposes; that these lands were leased by one J. W. Burns and wife; that at the time of the execution •of said lease by Burns, he was in possession of said lands; that, notwithstanding said lease, the respondents had entered upon said lands and taken possession of the timber thereon, had boxed the; trees and was gathering the gum from the pine trees for the. purpose of making turpentine, rosin, etc.; that the respondents claimed to be entitled to the use of the timber for turpentine purposes under a conveyance made to them by one Collins, and that Collins purchased said lands from said J. W. Burns after the execution of the lease from Burns un■der which the complainants claim.
    The prayer of the bill was that the respondents be enjoined from trespassing upon said property and from using the trees and timber thereon for turpentine purposes, and for general relief. Upon the filing of the bill there ivas a temporary injunction issued. The respondents filed an answer and pleas, in which they set up, among other defenses, that the lease under which the complainants claimed was invalid and conveyed no rights to the complainants or their transferors. The facts of the case are sufficiently stated in the opinion.
    Upon the final submission of the cause upon the pleadings and proof, the chancellor decreed that the complainants were entitled to the relief prayed for and ordered accordingly. From this decree the respondents appeal, and assign the rendition of this decree as error.
    R. F>. Crawford and W. W. Sanders, for appellant.
    The complainants’ lease in _ this case was executed before final proof of the homestead entry of J. W. Burns, the grantor therein. The effect of this was to render the lease a nullity. — Anderson v. Garkins, 135 U.' S. 483; Oook v. Mulloy, 101 Ala. 17; Strickland v. Woodstock I. Go., 121 Ala. 616; Van Rensellaer v. Kearney, 11 How. 297; Fenno v. Sayre, 3 Ala. 458; Ford v. Ohurch Society, 23 L. R. A. 561; Hamilton v. Brent L. Go., 127 Ala. 78. ’ '
    II. A. Pierce, contra.
    The tresspass alleged in the bill is a continuing one and goes to the destruction of the entire estate or interest- of the complainants. The final decree of-the court is free from error. — Mabel Alining Go. v. Pearson Goal & Iron Go., 121 Ala. 567; High on Inj., 730; Chambers et al. v. Ala. Iron Go., 67 Ala. 353. Subsequent acknowledgment of a void deed held to validate the same. — Smith v. Pearce, 85 Ala. 264.
   DOWDELL, J.

The undisputed facts in this case show that the lease under which the complainants claim was executed by Burns and wife to Nimmocks & Melvin on December 21st, 1896, and that at this time Burns and wife were residing upon the land, which had been entered by Burns under the homestead law of the United States, the same being government land. That Burns had not at the time, and not until two days later, on December 23d, perfected his entry and received certificate of homstead on final proof of entry. That the execution of the lease was. not acknowledged before, any officer, but Avas attested by one witness. That on. May 25th, 1897, the lease Avas transferred by Nimmocks & Melvin to the Peacock & Hunt Naval Stores Co., and afterwards by the latter to the complainant Carmichael, and by him of an undivided half interest to the co-complainant Flynt. That on May 27th, 1897, an acknowledgment of its execution Avas made by Burns and wife before an officer in the prescribed form of the Code for the conveyance of the homestead. That at the time of this acknowledgment by Burns, and Avife there Avas no redelivery of the lease, nor any additional or new consideration, but simply an acknoAvledgment by them of its execution of the date of its delivery, December 21st, 1896.

It is conceded in argument that Avithout the Avife’s acknoAvledgment taken separate and apart from the husband, the lease Avas void, but it is contended that the subsequent acknowledgment validated Avhat was otherwise a void deed. If the lessors, Bums and' Avife, at the time, of the execution of the lease, had been clothed with the right to make the same, this contention would be sound and find support in adjudication by this court. But such is not the case before us. The lease was void for another reason than that of a lack of sufficient acknowledgment by the Avife for the conveyance of the homestead. At the date of its execution, the homestead entry not having been perfected, Burns was prohibited under the homestead Liav of the United States on grounds of public policy from conveying or making any contract to convey any interest in the land, and any conveyance by him Avas absolutely void. — Anderson v. Corkins, 135 U. S. 483; Cook v. Mulloy, 101 Ala. 178; Woodstock Iron Co. v. Strickland, 121 Ala. 616. The subsequent acknowledgment by Burns and Avife Avas nothing but. a formal admission by them of their execution of the lease of December 21st, 1896. This certainly could give no more validity to the deed than if the acknowledgment had been made at the time of its execution, and yet if it had been so made, the lease, notwithstanding, would have been void. It is wholly different in principle from the case of a conveyance by husband and wife of the homestead where they have; the legal right to convey, and the conveyance fails by reason of a non-compliance with a prescribed form, which they have a. right to, and may remedy, by subsequent acts. In such case, it is the amista-bou that avoids the deed, and which may be ram edied by the parties. In the case before us it is the coinmmioiij or the act itself, and that which is forbidden on grounds of public policy, that avoids the deed, and it is not in the: power of the parties to give validity to the act. This view of the case renders it unnecessary to notice other questions raised in the record and discussed in the briefs of counsel.

The cause was submitted for final decree1 2upon the pleadings and proof, and a decree was rendered granting tile complainants relief prayed for. For the. reasons above given, the decree will be reversed, and a decree will be here1 rendered dissolving the injunction and dismissing complainants’ bill.

Noversed and rendered.  