Bashore v. Adolf

• Decision Date: 03 July 1925
• Citation: 238 P. 534,41 Idaho 84
• Parties: WALLACE BASHORE, Respondent, v. M. L. ADOLF, L. K. ADOLF and A. B. MULHALL, Appellants
• Court: Idaho Supreme Court

238 P. 534

41 Idaho 84

WALLACE BASHORE, Respondent, v. M. L. ADOLF, L. K. ADOLF and A. B. MULHALL, Appellants

Supreme Court of Idaho

July 3, 1925

COURTS-JUDICIAL OPINIONS-CONSTRUCTION-PUBLIC LANDS OF UNITED STATES - HOMESTEAD ENTRIES - MORTGAGES GIVEN BEFORE PATENT-VALID AS BETWEEN PARTIES.

1. Judicial opinions are authoritative only on the facts on which they are founded, and general expressions must be considered and construed in the light of this rule.

2. A mortgage given in good faith, by one who has made homestead entry on the public lands of the United States, prior to the issuance of his final receipt or patent, is valid as between the parties to the mortgage after the patent has been issued.

APPEAL from the District Court of the Ninth Judicial District, for Jefferson County. Hon. James G. Gwinn, Judge.

Action to quiet title and cancel certain mortgages. Judgment for plaintiff. Reversed.

Reversed and remanded. Costs awarded to appellants.

Maurice M. Myers, for Appellants.

A mortgage given in good faith by one who has made homestead entry on the public lands of the United States prior to the issuance of his final receipt or patent is good as between the parties to the mortgage after the patent has issued. (Stark v. Morgan, 73 Kan. 453, 9 Ann. Cas. 930, 85 P. 567, 6 L. R. A., N. S., 934; Lohman State Bank v Grim, 69 Mont. 444, 222 P. 1052; Thomas v Wisner, 66 Colo. 243, 180 P. 744; Worthington v Tipton, 24 N.M. 89, 172 P. 1048; Roberts v. Hudson, 25 Wyo. 505, 173 P. 786; Pittsburg Mtg. Inv. Co. v. Sneed, 60 Okla. 98, 159 P. 515; Stark v. Duvall, 7 Okla. 213, 54 P. 453; Klempp v. Northrop, 137 Cal. 414, 70 P. 284; Howard v. Reckling, 31 Ore. 161, 49 P. 961; Weber v. Laidler, 26 Wash. 144, 66 P. 400; Stewart v. Powers, 98 Cal. 514, 33 P. 486; Runyan v. Snyder, 45 Colo. 156, 100 P. 420; McFall v. Murray, 4 Kan. App. 554, 45 P. 1100; Orr v. Ulyatt, 23 Nev. 134, 43 P. 916; Fariss v. Deming Inv. Co., 5 Okla. 496, 49 P. 926; Rogers v. Minneapolis Thresh. Mach. Co., 48 Wash. 19, 92 P. 774, 95 P. 1014; Fuller v. Hunt, 48 Iowa 163; Lang v. Morey, 40 Minn. 396, 12 Am. St. 748, 42 N.W. 88; Forgy v. Merryman, 14 Neb. 513, 16 N.W. 836; Spiess v. Neuberg, 71 Wis. 279, 5 Am. St. 211, 37 N.W. 417.)

W. A. Beakley, for Respondent.

It is agreed in this case that no patent had issued, no final receipt had been received and no final proof submitted, and that the mortgages were all contracted before any final receipt was issued. The case of Ruddy v. Rossi, 248 U.S. 104, 39 S.Ct. 46, 63 L.Ed. 148, 8 A. L. R. 843, is conclusive, for there can be no mistaking the language of the United States supreme court in that decision, and which decision was followed in the same case by this court when the case was remanded in Ruddy v. Rossi, 28 Idaho 376, 154 P. 977.

Ray Agee, Amicus Curiae.

Mortgages given upon government homesteads prior to the issuance of patent are a subsisting and valid lien upon all the right, title and interest of the mortgagors in and to the homestead, and when patent finally issues, such mortgages are a valid and subsisting lien upon all the right, title, estate and interest which the mortgagor acquires therein by virtue of such patent, and the lien of the mortgage attaches as of the date of such mortgage. (32 Cyc. 1084, par. D; 1 Jones on Mortgages, 7th ed., par. 177, p. 256; 22 R. C. L., p. 325, par. 74; Stark v. Morgan, 73 Kan. 453, 9 Ann. Cas. 930, 85 P. 567, 36 L. R. A., N. S., 934; Orr. v. Stewart, 67 Cal. 275, 7 P. 693; Hubbard v. Mulligan, 13 Colo. App. 116, 57 P. 738; Fariss v. Deming Inv. Co., 5 Okla. 496, 49 P. 926; Rogers v. Minneapolis Threshing Mach. Co., 48 Wash. 19, 92 P. 774, 95 P. 1014; Coburn v. Bartholomew, 50 Utah 566, 167 P. 1156; Worthington v. Tipton, 24 N.M. 89, 172 P. 1048; Roberts v. Hudson, 25 Wyo. 505, 173 P. 786; Norris v. Heald, 12 Mont. 282, 33 Am. St. 581, 29 P. 1121; Klempp v. Northrop, 137 Cal. 414, 70 P. 284; Meinhold v. Walters, 102 Wis. 389, 72 Am. St. 888, 78 N.W. 574; Kneen v. Halin, 6 Idaho 621, 59 P. 14; Cheney v. Minidoka County, 26 Idaho 471, 144 P. 343.)

The holding of the supreme court of the United States in the case of Ruddy v. Rossi, 248 U.S. 104, 39 S.Ct. 46, 63 L.Ed. 148, 8 A. L. R. 843, does not in any manner change this rule. (First State Bank of Phillipsburg v. Durand, 69 Mont. 184, 222 P. 434.)

Sec. 2296, U.S. Rev. Stats., does not prohibit the homesteader from creating a lien upon his homestead by his voluntary act. This statute was enacted for the purpose of preventing the creditor from in any manner acquiring an involuntary lien upon the land to secure satisfaction of a debt contracted by the homesteader before the issuance of patent. (Lohman State Bank v. Grim, 69 Mont. 444, 222 P. 1052; First State Bank of Phillipsburg v. Durand, supra; 1 Jones on Mortgages, 7th ed., p. 255, par. 177; Klempp v. Northrop, supra.)

Richards & Haga, Amici Curiae.

"The exemption under consideration is designed merely to protect the settler from a forced sale under execution on a debt contracted prior to the time designated, and does not preclude him from borrowing money and voluntarily creating a lien on the land by way of mortgage to secure the same, or prevent the enforcement of such a mortgage." (32 Cyc. 1084; 6 L. R. A., N. S., 934.)

"In the absence of a prohibitory statute a mortgage or pledge of exempt property is valid and the execution of such an instrument constitutes a waiver of the exemption as to the debt secured. " (11 R. C. L. 544; 25 C. J. 107.)

The federal homestead laws do not prohibit an entryman from encumbering the land prior to patent. (Wright v. Walker (Wyo.), 225 P. 75; First State Bank v. Durand, 69 Mont. 181, 222 P. 434; Thomas v. Wisner, 66 Colo. 243, 180 P. 744; Quinn v. Tennessee Coal, Iron etc. R. R. Co., 201 Ala. 46, 77 So. 340.)

Since the decision of the federal supreme court in the Ruddy case the Land Department of the United States, the co-ordinate branch of the government directly in charge of the lands in question, has followed the rule and practice laid down by it since 1882 and held that the entryman might mortgage his property prior to patent. (48 L. D. 582, 640.)

"A mortgage by the entryman prior to final proof for the purpose of securing money for improvements, or for any other purpose not inconsistent with good faith, is not considered such an alienation of the land as will prevent him from submitting satisfactory proof." (Suggestions to Homesteaders, 48 L. D. 389, 406.)

TAYLOR, J. Wm. E. Lee, Budge and Givens, JJ., concur. WILLIAM A. LEE, C. J., Dissenting.

OPINION

TAYLOR, J.

This action was brought by respondent to quiet title to lands and to cancel two mortgages which he had executed thereon. The lands are conceded to be the homestead entry of respondent, made under the laws of Congress. The mortgages were executed before final proof or final certificate or patent. He is admitted now to be the owner in fee, and claims that these mortgages are void and a cloud upon his title. Appellants demurred to the amended complaint for failure to state a cause of action. This demurrer was overruled, whereupon appellants separately answered and cross-complained, setting up their respective mortgages, and asking for a foreclosure thereof and the sale of the lands to satisfy the mortgage indebtedness. Respondent thereupon moved to strike appellants' answers and cross-complaints, and for judgment on the pleadings. The court granted the motion to strike, and granted respondent judgment on the pleadings, canceling the mortgages in question. This appeal is from that judgment.

Counsel are agreed that the only question involved herein is whether a mortgage given by a homestead entryman in good faith, prior to patent, is valid as between the parties thereto. A decision of this question will be decisive of the five errors assigned by appellants.

Counsel for respondent relies upon Ruddy v. Rossi, 248 U.S. 104, 39 S.Ct. 46, 63 L.Ed. 148, 8 A. L. R. 843; Williams v. Sherman, 36 Idaho 494, 212 P. 971, and U.S. Rev. Stats., sec. 2296 (U.S. Comp. Stats. 1916, sec. 4551; 8 F. Stats. Ann., p. 575). The opinions in Ruddy v. Rossi, supra, and Williams v. Sherman, supra, must be considered and construed in the light of the rule that they are authoritative only on the facts on which they are founded. General expressions must be taken in connection with the case in which those expressions are used.

"There is a pronounced line of demarkation between what is said in an opinion and what is decided by it . . . . " (State v. City of St. Louis (Mo.), 145 S.W. 801.)

See, also, Cohens v. Virginia, 19 U.S. 264, 6 Wheat. 264, 5 L.Ed. 257; 15 C. J., p. 941, sec. 332.

This court, in Ruddy v. Rossi, 28 Idaho 376, 154 P. 977, held that a homestead entry is liable to satisfaction of a judgment upon a debt contracted after issuance of a final certificate and before patent, upon the doctrine of the relation of the patent back to the date of the certificate. The supreme court of the United States (Ruddy v. Rossi, 248 U.S. 104, 39 S.Ct. 46, 63 L.Ed. 148, 8 A. L. R. 843) reversed that case.

U.S. Rev. Stats., sec. 2296 (U.S. Comp. Stats. 1916, sec. 4551, 8 F. Stats. Ann., p. 575), with relation to homestead lands, provides:

"No lands (ac) quired under the provisions of this chapter shall in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor."

The debt involved in Ruddy v. Rossi supra, was not secured by a mortgage, but the date of contracting it after final proof and before patent made the issue as to its being within the act. That case sets at rest all controversy over the meaning of the words of section 2296, "prior to the issuing of the patent therefor," by holding that the actual...