
    Egbert, Appellant, v. Bond.
    Division One,
    February 15, 1899.
    Patent to Land: proof of Residence: by whom made: husband and wife : title in husband. Where a husband at the time he deserted his wife, has complied with all the requirements of the law relating to homesteading government land, so as to entitle him to a patent, upon making final proof of residence, cultivation, non-alienation and loyalty as required by section 2291, Revised Statutes United States, his equitable right to have the legal title vested in him by the government is complete, and he can not be deprived of his patent title by the fact that his deserted wife, or some other person, made the necessary proof for him. But by whomsoever the proof was made, the title inures to his benefit.
    
      Appeal from Ozark Circuit Oourt. — How. W. N. EvaNS, Judge.
    Reversed AND remaNded (with directions).
    
    Walter A. Phipps and James H. Pratt for appellant.
    (1) A certificate may be subject to bargain and sale, yet tbe United States can take care tbat the conveyance shall be to him who is in good faith its vendee. The reception of tbe certificate of purchase as evidence of title may be regular and convenient as a rule of business, but it has not been adjudged to forbid or exclude proofs of tbe real and just rights of claimants. Irvin v. Marshall, 20 How. 555. (2) The legal title bad not emanated from tbe United States at tbe date of tbe alleged divorce, and in addition to this tbe widow at most bad only an inchoate right of dower. Tbe law does not fix any earlier period for tbe consummation of an inchoate right of dower than tbe death of tbe husband. Hunt v. Thompson, 61 Mo. 148; Schuster v. Schuster, 93 Mo. 444; Cerche v. Gerche, 100 Mo. 237.
    A. IT. LivxNgstoN for' respondent. ’
    (1) After Martha Cobb bad made final proof and bad received a final receipt, as tbe abandoned wife of Eh Cobb, tbe land was taxable under tbe laws of this State and she bad as much right to sell and convey it, as if tbe patent bad been duly issued. At least she bad an equitable title which passed to respondent Bond, and tbe circuit court bad jurisdiction to* decree tbe legal title. Swisher v. Sensenderfer, 84 Mo. 104; Widdicombe v. Childers, 84 Mo. 382. (2) There can be no question that tbe equities were all in favor of Mrs. Martha Cobb. After tbe homestead was made, her husband deserts her — leaves her with a lot of little children, and takes another woman. Mrs. Cobb remains on tbe homestead with her children, and at tbe proper time makes final proof on the homestead as an abandoned wife, and secures a final receipt as such. Equities could not be stronger. Tbe decree of tbe court was right. Sensenderfer v. Kemp, 83 Mo. 581. (3) Tbe appellant is charged with notice of these facts; besides Mrs. Cobb and her grantee, respondent, were all tbe time in tbe actual possession. Swisher v. Sensenderfer, 84 Mo. 104; Widdi-combe v. Childers, 84 Mo. 382.
    Waltee A. Pi-iipps and James H. Pratt for appellant-in reply.
    (1) If Martha E. Cobb did, by reason of tbe wrongful’ issue to her by tbe Government land office of a final certificate, acquire for tbe time being an equitable interest in said. land, all snob interest was cnt off by tbe issuance of tbe patent to Eli Oobb, for a patent when issued relates back to tbe inception of tbe right of tbe patentee, so far as it may be necessary to cnt off all intervening claimants. Railroad v. Gordon, 41 Micb. 420; Starks v¿ Starr, 6 Wall. 402; United States v. Ereyburg, 32 Eed. Rep. 195. A patent for land carries tbe fee, and is tbe best title known to a court of law. Bagnell v. Broderick, 13 Pet. 450. And is conclusive in a court of law. West v. Cochran, 1Y How. 403; Gaines v. Hale, 16 Ark. 25; 'Bledsoe v. AYeill, 4 Bibb. 229. (2) It is not true that “after Martha E. Oobb bad made final proof and bad received a final receipt as tbe abandoned wife of Eli Oobb, that tbe land was taxable under tbe laws of tbe State of Missouri.” Land becomes subject to tbe laws of tbe State in relation to taxation and to sale and conveyance for tbe nonpayment of taxes, from tbe time a patent is issued thereon by tbe United States Government. Miller v. Donahue, 96 Wis. 498; Wilcox v. Jackson, 13 Pet. 516.
   BRAOE, P. J.

This is an action in ejectment in common form to recover a one hundred and twenty acre tract of land in Ozark county. Tbe case was tried by tbe court without a jury, tbe issues found for tbe defendant, and from tbe judgment in bis favor tbe plaintiff appeals.

In support of her claim tbe plaintiff introduced in evidence a patent from tbe United States dated September 2, 1892, to one Eli Cobb, for tbe land in question, and it was admitted that tbe plaintiff has a deed to tbe premises from said Cobb and that she purchased tbe same for a valuable consideration. It was also admitted that tbe defendant has a deed to tbe premises from Martha E. Oobb, tbe divorced wife of tbe said Eli Oobb. Tbe patent was issued to Oobb on deposit of a certificate of tbe register of tbe land office at Springfield, showing that bis claim to said land bad been established and consummated under tbe homestead laws of the United States. Tbe original entry seems to have been made in 1884. Tbe defendant to maintain bis claim and defense under tbe deed from Mrs. Oobb, introduced evidence tending to prove that tbe said Oobb, with bis said wife and tbeir children, continued to live together on said tract of land, improving and cultivating tbe same, from tbe time of tbe original entry until about tbe fourth of July, 1890, when be deserted bis family and went off with another woman; that Mrs. Oobb, continuing to reside on tbe premises with her children thereafter, on or about tbe first of October, 1890, made final proof, as tbe deserted wife of tbe said Eli Oobb, on bis entry, and received a receipt for such proof. That she afterwards obtained a divorce from tbe said Oobb, sold tbe land to the defendant, and executed a deed to him therefor, under which be went into, and since has continued in tbe possession thereof. Neither of tbe two deeds, tbe decree of divorce, or tbe receipt referred to are set out in tbe record, and we are not advised further than as stated, as to tbeir character or’ contents. We fail to find in tbe facts proven any defense to plaintiff’s cause of action, on her legal title. Tbe United States statute in regard to homestead entries, after prescribing tbe conditions upon which tbe bead of a family may, upon mating tbe required affidavit, enter unappropriated public lands, provides “that no certificate shall be given or patent issued therefor until tbe expiration of five years from tbe date of such entry, and if at tbe expiration of such time, or at any time within two years thereafter, tbe person making such entry, or if be be dead, bis widow, or in case of her death bis heirs or devisees,.proves by two credible witnesses that be, she, or they have resided upon or cultivated tbe same for tbe term of five years immediately succeeding tbe time of filing tbe affidavit, and makes affidavit that no part of such land has been alienated except as provided in section twenty-two hundred and eighty-eight, and that be, she, or they will bear true allegiance to tbe government of tbe United States, then in such case be, she, or they, if at that time citizens of tbe United States, shall be entitled to a patent, as in other cases provided by law.” E. S. IT. S. 1878, sec. 2291.

The evidence tends to prove that Eli Cobb at the time he left his wife had complied with all the requirements of the law so as to entitle him to a patent upon making final proof of residence, cultivation, non-alienation and loyalty as required by this statute. His equitable right to have the legal title vested in him by the government was complete, and he could not be deprived of it by his deserted wife or any other person making this proof for him. By whomsoever made, it inured to his benefit, and the government so recognizing his right, the patent was issued to him, thus vesting in him the whole title, both legal and equitable, which passed by his deed to the plaintiff, who should have had judgment, as there was no evidence tending to show that this title was ever in any way transmitted to his wife under whom the defendant claims. The judgment will therefore be reversed and the cause remanded to be proceeded with in accordance with this opinion. All concur.  