Todok v. Union State Bank of Harvard, Neb, 412

• Decision Date: 19 May 1930
• Docket Number: No. 412,412
• Citation: 281 U.S. 449,74 L.Ed. 956,50 S.Ct. 363
• Parties: TODOK et al. v. UNION STATE BANK OF HARVARD, NEB., et al
• Court: U.S. Supreme Court

281 U.S. 449

50 S.Ct. 363

74 L.Ed. 956

TODOK et al.

v UNION STATE BANK OF HARVARD, NEB., et al.

No. 412.

Argued April 22, 1930.

Decided May 19, 1930.

Messrs. Frank E. Edgerton, of Aurora, Neb., and Norris Brown, of Omaha, Neb., for petitioners.

Mr. Walter D. James, of Cambridge, Neb., for respondents.

Mr. Chief Justice HUGHES delivered the opinion of the Court.

Christian Knudson, a native and citizen of Norway, came to this county in 1868 and settled in Nebraska in 1878. He was never naturalized. He established a homestead on 160 acres of land in Hamilton county, Neb., and resided there until he died intestate in August, 1923. His father and mother made their home with him until their death, and his son Knute C. Engen, who came to Enbraska in 1893, also lived with him for time. The wife of Knudson remained in Norway. In July, 1923, Knudson executed deeds of the homestead to his nieces and their husbands, and these grantees conveyed the property to the Union State Bank of Harvard, Neb.

The suit was brought by the son of Knudson, Knute C. Engen, in the district court of Hamilton county to cancel the conveyances of the land upon the ground that they were obtained by fraud. The widow of Knudson, Mari Tollefsen Todok, who had not joined in the deeds, was made a defendant. By her cross-petition she attacked the conveyances, alleging that the property constituted a homestead in which she had an undivided one-half interest. The other defendants answered her cross-petition, and in her reply she set up the right to take the real estate of her deceased husband by virtue of the treaty of amity and commerce between the United States and Norway.

The District Court determined that no fraud had been practiced in obtaining the deeds from Knudson, but that these, and the later conveyances dependent upon them, were void upon the ground that the land was homestead property the title to which remained in Knudson until his death and then descended to his widow and his son. The Supreme Court of the state sustained the decision of the district court with respect to the issue of fraud, but reversed the judgment upon the ground that, under the treaty with Norway, Knudson was entitled to convey the property and that his grantees took title under his deeds. Engen v. Union State Bank, 223 N. W. 664. This court granted a writ of certiorari, 280 U. S. 546, 50 S. Ct. 40, 74 L. Ed. —.

We are not called upon to decide as to the validity under the homestead law of Nebraska of a deed of the homestead by the husband when the wife is an alien who has never come to this country and made the homestead her home. We accept the decision of the Supreme Court of the state that, aside from the effect of the treaty, Knudson's conveyances were void under the law of the state. That court, referring to the statutes of Nebraska as to homestead property, and their application to the present case, said (223 N. W. page 667):

'For, if we consider the provisions of section 2819 and section 2832, Comp. St. 1922, as applicable to the subject of the present action, it necessarily follows that certain property within the purview of the treaty before us 'cannot be conveyed * * * unless the instrument by which it is conveyed * * * is executed and acknowledged by both husband and wife,' and also that such property (homestead) 'vests on the death of the person from whose property it was selected, in the survivor, for life, and afterwards in decedent's heirs forever, subject to the power of the decedent to dispose of the same, except the life estate of the survivor, by will.'

'The statutory provisions referred to thus assume the nature of limitations, qualifications, or modifications of the treaty itself, and, if valid, would necessarily change its true construction. Each of these provisions of the legislative enactment must therefore be considered to be pro tanto inconsistent with the terms of the controlling treaty properly construed. The conclusion follows that, to the extent inconsistent with the terms of the treaty, the statutory provisions are inoperative. The unquestioned rule of construction requires that the provisions of the treaty must be liberally construed and given full force and effect 'anything in the Constitution or laws of any state to the contrary, notwithstanding.' Therefore, the legal effect of the conveyances executed by Christian Knudson must be determined wholly by the powers conferred on him by treaty, and not by the inconsistent limitations and restrictions prescribed in the Nebraska Homestead Act.'

The only question before us is as to the construction of the treaty. The provision invoked is article 6 of the treaty with Sweden of April 3, 1783 (8 Stat. 6064), revived by the treaty with Sweden and Norway of Sept 4, 1816 (8 Stat. 232, 240) which was replaced by the treaty with Sweden and Norway of July 4, 1827 (8 Stat. 346, 354) now in force with Norway (Sen. Doc., 61st Cong., 2d Sess., No. 357, vol. 48 (2 Malloy), p. 1300). This article is as follows:

'The subjects of the contracting parties in the respective states, may freely dispose of their goods and effects either by testament, donation or otherwise, in favor of such persons as they think proper; and their heirs in whatever place they shall reside, shall receive the succession even ab intestato, either in person or by their attorney, without having occasion to take out letters of naturalization. These inheritances, as well as the capitals and effects, which the subjects of the two parties, in changing their dwelling, shall be desirous of removing from the place of their abode, shall be exempted from all duty called 'droit de detraction,' on the part of the government of the two states respectively. But it is at the same time agreed, that nothing contained in this article shall in any manner derogate from the ordinances published in Sweden against emigrations, or which may hereafter be published, which shall remain in full force and vigour. The United States on their part, or any of them, shall be at liberty to make respecting this matter, such laws as they think proper.'

It was at one time supposed that the phrase 'goods and effects' in this article did not cover real property, a construction which was due in some measure to the view that the treaties of the United States could not affect the operation of the laws of the several States of the Union with respect to the inheritance of land. Opinion of Attorney General Wirt, July 30, 1819, 1 Ops. Attys. Gen. 275. This view of the treaty-making power of the United States is not tenable. Hauenstein v. Lynham, 100 U. S. 483, 489, 25 L. Ed. 628; Geofroy v. Riggs, 133 U. S. 258, 266, 267, 10 S. Ct. 295, 33 L. Ed. 642; Sullivan v. Kidd, 254 U. S. 433, 41 S. Ct. 158, 65 L. Ed. 344; Nielsen v. Johnson, 279 U....