The finding of facts made in the supreme court of Oregon is binding upon this court and will be the basis of decision here. Egan v. Hart, 165 U.S. 188, 41 L. ed. 680, 17 Sup. Ct. Rep. 300; Dower v. Richards, 151 U.S. 658, 38 L. ed. 305, 14 Sup. Ct. Rep. 452.
It appears that Adams made the entry under the timber culture act before the partnership agreement was entered into, and there is nothing in the record to show that, in taking the preliminary oath required by the statute, he acted otherwise than in good faith, and stated the truth as to the situation and his purpose in making the entry. As recited in the title, the purpose of the act is to encourage the growth of timber on the Western prairies, and it is intended to induce settlers to plant and cultivate trees with a view to receiving a patent of the lands thus improved. Section 2 of the act (20 Stat. at L. 113, chap. 190) requires the person applying for the benefit of the law to make affidavit that he is the head of a family (or over twenty-one years of age) and a citizen of the United States, or has declared his intention to become such; that the land specified is devoid of timber; that the entry is made for the cultivation of timber for the exclusive use and benefit of the applicant; that the application is made in good faith, and not for the purpose of speculation, or directly or indirectly for the use or benefit of any other person or persons whomsoever; that affiant intends to hold and cultivate the land and to comply with the provisions of the act, and has not made other entry under the law. Before a final certificate can be given or patent issue, eight years must elapse from the date of entry, and if, at the expiration of that time, or within five years thereafter, the person making the entry, or, in event of death, his heir or legal representative, shall prove by two credible witnesses that he, she, or they have planted, and for not less than eight years have cultivated and protected, the required quantity and character of trees; that not less than twenty-seven hundred trees were planted on each acre, and that at the time of making such proof there shall be then growing six hundred and seventy-five living and thrifty trees on each acre, a patent shall issue for the land.
It is the contention of the plaintiff in error that these provisions demonstrate the policy of the law to grant the lands in question to the person filing the entry, his heirs and legal representatives, and none other; and that to make the sale of an interest in the lands to another as a partner, as is found to have been done in this case, is void as against public policy. It is pointed out that the final affidavit, required by the rules and regulations of the General Land Office, made under authority of § 5 of the act, is to be in the same terms as the preliminary one, and requires the claimant to make oath that his entry was made in good faith, and not for the purpose of speculation or indirectly for the benefit of any other person whomsoever.
This requirement and the general purpose indicated in the terms of the act, it is argued, bring the case within the reasoning and spirit of Anderson v. Carking, 135 U.S. 483, 34 L. ed. 272, 10 Sup. Ct. Rep. 905. In that case it was held that a court of equity would not grant a decree for specific performance of an agreement to sell the interest of the homesteader, made after settlement and before the oath is filed for final certificate. But the homestead act specifically requires that the applicant shall make affidavit before entry is made that it is for the purpose of actual settlement and cultivation, and not directly or indirectly for the use or benefit of any other person. Rev. Stat. § 2290 (U.S.C.omp. Stat. 1901, p. 1389).
Further, the final proof requires affidavit by the applicant 'that no part of such land has been alienated except as provided in § 2288 (U.S.C.omp. Stat. 1901, p. 1385).' Rev. Stat. § 2291 (U.S.C.omp. Stat. 1901, p. 1390), which section limits the right of alienation to 'church, cemetery, or school purposes, or for the right of way for railroads.'