Brandhoefer v. Bain

• Decision Date: 17 September 1895
• Citation: 64 N.W. 213,45 Neb. 781
• Parties: BRANDHOEFER v. BAIN ET AL.
• Court: Nebraska Supreme Court

45 Neb. 781

64 N.W. 213

BRANDHOEFER

v.BAIN ET AL.

Supreme Court of Nebraska.

Sept. 17, 1895.

Syllabus by the Court.

1. Where a court proceeds in an action according to the provisions of a statute which is unconstitutional, its judgment is not void, but, at most, erroneous, provided its jurisdiction of the action does not depend upon the statute, but exists independently thereof.

2. Lands acquired under the federal homestead law are forever exempt from liability for the debts of the patentee created before the issuing of the patent; and this, although the patentee conveys the lands, and afterwards reacquires the title.

Appeal from district court, York county; Bates, Judge.

Action by Adam Brandhoefer against E. Bain and others. Judgment for plaintiff, and defendants appeal. Affirmed.Geo. B. France, for appellants.

Gilbert Bros., for appellee.

IRVINE, C.

Adam Brandhoefer entered the W. 1/2 of the S. E. 1/4 of section 20 in township 11 N. of range 1 W., in York county, under the federal homestead law. A patent was issued to him in 1878. In 1885 Brandhoefer and wife conveyed the land to Leonidas A. Brandhoefer, and in 1886 Leonidas Brandhoefer conveyed it to Eliza Brandhoefer, the wife of Adam. In 1891 Eliza Brandhoefer died, and on February 29, 1892, the county court of York county, on application of Adam Brandhoefer, set aside the land in question as the homestead of the husband; the county court apparently acting under the provisions of chapter 57 of the Session Laws of 1889, which has since been declared unconstitutional. Trumble v. Trumble, 37 Neb. 340, 55 N. W. 869. In 1876, prior to the issuing of the patent, Adam Brandhoefer had become indebted to E. Bain, and in 1879 Bain recovered judgment against him. On July 14, 1892, an order was entered by the county court, reviving this judgment. Brandhoefer then brought this action, alleging facts which, he claimed, rendered the land exempt from liability for the satisfaction of the judgment, and praying that it be decreed to be free from apparent lien thereof. A decree was rendered in favor of the plaintiff, from which Bain appeals. Certain other matters were involved in the case, but the foregoing is all which relates to the subject-matter of the appeal.

Among the questions discussed are several relating to the force and effect of the order of the probate court setting apart to the plaintiff the land in question as his homestead, it being contended, on the one hand, that, the act of 1889 being unconstitutional, these proceedings were void, and, on the other hand, that the declaration of the unconstitutionality of that act did not affect the validity of any proceedings had thereunder, or, if it did, that chapter 32 of the Session Laws of 1895, which was intended as a curative act, validated such proceedings. None of these questions do we consider properly involved in a determination of the case. Prior to the passage of the act of 1889, it had been determined that the county court had jurisdiction to assign dower (and therefore curtesy) from the lands of a decedent, and also to set aside the homestead of the surviving husband or wife. Guthman v. Guthman, 18 Neb. 98, 24 N. W. 435. Therefore, the jurisdiction of the county court to assign an estate by curtesy, or a homestead, did not depend upon the act of 1889, and, irrespective of that act, the county court had jurisdiction of the proceedings which led to the setting aside to Brandhoefer of the land in question as his homestead. This being so, the action of the court in setting aside the homestead, in pursuance of the act of 1889, affected only the regularity of the proceedings, and not the jurisdiction of the court. While its action may have been erroneous, it was not void, and is not open to collateral attack. Therefore, when the plaintiff showed an estate assigned to him by decree of a court having jurisdiction of the subject-matter, this was sufficient proof of title to, prima facie at least, establish in him an actionable interest. The force of the decree of the county court does not, therefore, depend in any manner upon the act of 1889. Independent of that act, questions are presented as to the effect of the decree, as against one not a party to the proceedings, as determining the right of exemption. These questions we shall not determine, because the judgment must, in any event, be affirmed on another ground.

This land was entered by the plaintiff as a homestead under the federal law, and the debt upon which the judgment was rendered was one created before the patent was issued. Section 2296, Rev. St. U. S., provides that “no lands acquired under this act shall in any event become liable to the satisfaction of any debt or debts contracted prior to the issuing of a patent therefor.” The validity of this act of congress has been determined beyond question, and we refer to one case on the subject merely for the purpose of calling attention to the reason of the act. In Seymour v. Sanders, 3 Dill. 437, Fed. Cas. No. 12,690, it is said that congress has plenary power over the disposition of public lands, to dispose of them at such time, in such manner, and for such purposes as, in its judgment, it may deem best, and that the object of section 2296 is to benefit the poor man, who is unable to pay for the land at once, and...