Citizens' Nat. Bank of Albuquerque v. Ruley.

• Decision Date: 21 April 1924
• Docket Number: No. 2765.,2765.
• Parties: CITIZENS' NAT. BANK OF ALBUQUERQUEv.RULEY.
• Court: New Mexico Supreme Court

29 N.M. 662

226 P. 416

CITIZENS' NAT. BANK OF ALBUQUERQUE

v.RULEY.

No. 2765.

Supreme Court of New Mexico.

April 21, 1924.Rehearing Denied June 6, 1924.

Syllabus by the Court.

Government land acquired under the Stockraising Homestead Law of Congress (U. S. Comp. St. §§ 4587a-4587k) by an entryman who is unmarried at the time of making the entry is the separate property of the entryman, notwithstanding he is a married man at the time of making final proof.

Such land so acquired is exempt from attachment or execution for a debt contracted by the entryman prior to issuance of patent from the government.

Appeal from District Court, De Baca County; Bratton, Judge.

Action by the Citizens' National Bank of Albuquerque against B. J. Ruley. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.

Government land acquired under Stockraising Homestead Law Dec. 29, 1916, 43 U.S.C.A. §§ 291-301, by unmarried entryman, is exempt from attachment or execution for debt contracted by entryman prior to issuance of patent from government.

H. R. Parsons, of Fort Sumner, for appellant.

John F. Simms, of Albuquerque, and C. F. Fishback, of Fort Sumner, for appellee.

PARKER, C. J.

The appellee brought an action for money loaned against the appellant, Ruley, and obtained a writ of attachment which was duly levied on the land in question on September 21, 1920. On September 28, 1920, Ruley executed a mortgage on the land to the intervener, Granger. An amended complaint was filed by appellee pleading its cause of action somewhat more in detail and adding two counts, but neither of the latter was sustained by the court. The land in question was government land, and Ruley applied for entry of the same at the United States Land Office on January 4, 1917, under the provisions of the Act of December 29, 1916, chapter 9, 39 Stat. L. 862, Fed. Stat. Ann. 1918 Supp. 708 (U. S. Comp. St. §§ 4587a-4587k), commonly called the “Stockraising Homestead Law.” At the time of the entry, Ruley was unmarried, but at the time of issuance of final receipt to him he was married. Two questions are presented.

[1] 1. The mortgage to intervener was executed by Ruley alone, his wife not joining therein. Its validity was challenged on the ground that the property was community property, and therefore the mortgage was void by reason of the provisions of chapter 84, Laws of 1915. The court held the property was community property upon the authority of Baker v. Saxon, 24 N. M. 531, 174 Pac. 991, and held the mortgage void under the terms of the above statute and upon the authority of Miera v. Miera, 25 N. M. 299, 181 Pac. 583. Vigorous assault is made by counsel upon the Baker-Saxon Case to the effect that it is contrary to the current of authority and should be overruled. In that case the entryman was married at the time he made his entry, but was divorced before he made final proof. In this case the entryman was unmarried at the time of entry, but was married at the time of final proof. The Baker-Saxon Case makes the status at the time of final proof the test in regard to whether the property is separate or community property. In that case our court relied upon McCune v. Essig, 199 U. S. 382, 26 Sup. Ct. 78, 50 L. Ed. 237. That case clearly holds that so long as the right to the title is incomplete, the federal laws control to the exclusion of any community property laws of the state, and that, should the entryman die before patent, the doctrine of relation cannot be invoked by the heirs as against the conjugal survivor who completes the entry. In other words, the case holds that the federal laws determine who shall take the title from the government. This case is followed by Wadkins v. Producer Oil Co., 227 U. S. 368, 33 Sup. Ct. 380, 57 L. Ed. 551. In that case the father of plaintiff settled on the land in 1893, married plaintiff's mother in 1894, who died in 1896, made homestead entry in 1895, and made final proof in 1898. The court, in sustaining the Supreme Court of Louisiana, held that the right of the entryman related back to the date of settlement under the provisions of section 3, Act of May 14, 1880, chapter 89, 21 Stat. L. 140, 6 Fed. Stat. Ann. 301 (U. S. Comp. St. § 4538), and that consequently the plaintiff, daughter of the entryman and his deceased wife, acquired no rights in the land as the heir of her mother. The effect of this decision is to say that the title of the entryman, as between him and any person, wife, child, or others claiming interests under state laws, dates from the time of settlement on the land as a homestead. The next case is Buchser v. Buchser, 231 U. S. 157, 34 Sup. Ct. 46, 58 L. Ed. 166. In that case a married man made entry and acquired title under the homestead laws; thereafter his wife died, and their children set up claim to one-half of the property as heirs of their deceased mother. The claim was valid under the laws of Washington, and was sustained by the Supreme Court. That court said:

“There is no doubt, of course, that until the title is completed the laws of the United States control. * * * But when the title has passed then the land ‘like all other property in the state is subject to state legislation.’ * * * No one would doubt that this title was subject to the same incidents as any other so far as events subsequent to its acquisition were concerned. * * * It could be lost by adverse occupation for the time prescribed by state law, and in a state that adopted the common law as to dower it would be subject to dower if the settler subsequently married. The only semblance of difficulty is due to the coincidence in time of the acquisition of a separate right by the settler and the beginning of a community right in the wife. But this is by no means an extreme illustration of the division of an indivisible instant that is practiced by the law whenever it is necessary. * * * In the...