#### Rust v. Caddo River Lumber Company.

Opinion delivered March 23, 1925.

Public lands^-homestead — public policy. — As it is against public '■ 'policy for a1 (homesteader on government land to convey the ■ - land before issuance of a patent, where plaintiff claimed under ■a deed from a homesteader prior to the issuance .of a patent thereto,.he cannot complain that defendant’s right of way was ’ granted under -a deed invalid for the same reason; the maxim : - “In pari delicto potior est conditio defendentts” applying.

Appeal from’Montgomery Chancery Court; J. P: Rendersóñ, Chancellor;

affirmed.

Bays, Priddy S Chambers, for appellant.

McRae S Tompkins, for appellee.

Smith, J.

This suit was 'brought 'by appellant to ehjoin.appellee from building a private logging railroad ¿cross two tracts of land which appellant claims to own. One.was a f orty-acf é tf act, and the other was án eighty-acre tract, and they will'he' referred to herein as -such.

*337- ' 'wás; sBoWn' that1-'employees' Of appellee - entered-tqWh fhAfórty-ácre tract1 and commenced cutting;out a right-of-way, and certain timber was'destroyed.' But it -Was also shown "by the undisputed evidence that the einpioyefes of appellee entered upon this forty-acre tract by mistake, and, when the superintendent of 'construction saw what had' been dorie'j he immediately ordered appel-lee’s employees off' this tract, and reprimanded them-for the mistake they had made. -It is an undisputed fact that'the entry'upon, the'forty-acre tract was a mistake, and that the route of the railroad does not cross the forty-acre tract. ■ ■ ■

Appellee admits its intention to cross the eighty-acfé trUCt, but alleges its right to do so under a right-of-way deed from the owner of the land.

’ - It appears that one Ira Wheeler had. entered-both tracts as ia homestead,'but he did not complete his proof of improvements and occnpation, and did not receive his patent Until September 10, 1923. Prior to the issuance df this patent, Wheeler executed a right-of-way deed over'the eighty-acre tract tó appellee on February 16, 1923. On July 9, 1923, Wheeler executed a warranty deed' conveying both tracts to A. H. and D. P. Whitsett, and the Whitsetts conveyed both tracts to appellant by á/¿warranty deed dated September 10,1923, this being the day-Upon which-Wheeler received his patent.'

'*U A- temporary restraining order was issued at' the time of 'the institution Of the suit, but -this'-'was dissolved on JbC'-final béaring, aúd the suit was dismissed as being without':equity; 'and'-this -appeal'is from' that' decree.- '

f r' Thefactibn of the court below in dismissing the complaint as being without equity; is defended'on several grounds-, bti-t' wU Consider only-one, Us wefnidTt decisive of this appeal.

It is insisted by appellant that the right-of-way deed to appellee was void because, at the time of its execution, Wheeler had not obtained a patent to the land, and, inasmuch as it is against the policy of the United States homestead law to permit the conveyance *338of . any parí of a homestead before the entry is completed-.and the patent is issued, that the right-of-way deed was ineffective. . -

. It is answered, however., that, if this be true, appellant is in no position to raise the question, for the reason that he claims under a deed from the Whitsetts, who themselves bought from Wheeler prior to the issuance of the patent to Wheeler; and such is the fact.

. Wheeler had not completed his entry at the time he executed the right.-of-way deed to appellee, but his deed to the Whitsetts . was likewise executed to them before his entiy was completed and the patent had issued.

. The maxim, In- pari delicto .potior, est conditio defendentis, , applies. Appellant is asking - affirmative relief, and he bases his cause of action on a conveyance which- is open to the same objection as the one which he makes to the deed under; which appellee claimed a right-of-way, and the cause of action was, for this reason, properly dismissed as being without equity. Irons v. Reyburn, 11 Ark. 378; Cate v. Cate, 53 Ark. 484; O’Bryan v. Fitzgerald, 48 Ark. 487; Eager v. Jonesboro, L. C. & E. Express Co., 103 Ark. 288.

■ ■In affirming the decree of the court below we treat the case as one to enjoin the entry upon the eighty-acre tract alone,, as appellee concedes that it had no-right of entry upon the forty-acre tract,, and has disclaimed any intention of doing so. There may be; liability for the damage done, by the mistaken entry upon the forty-aere tract,'bnt . we need not consider that question, here for the reason that this damage was done before appellant purchased- the forty-acre- tract,, and-he took-no assignment of that cause of action.

The decree of the court below.is ..therefore affirmed.