Dickerson v. Bridges

• Citation: 48 S.W. 825,147 Mo. 235
• Parties: DICKERSON v. BRIDGES et al.
• Decision Date: 23 December 1898
• Court: United States State Supreme Court of Missouri

48 S.W. 825

147 Mo. 235

DICKERSON v. BRIDGES et al.

Supreme Court of Missouri, Division No. 1.

December 23, 1898.

PUBLIC LANDS — HOMESTEAD ENTRY — EXECUTION SALE — MORTGAGEABLE INTEREST — TRUST DEED — LIEN.

1. Under the homestead act (Rev. St. U. S. § 2296), declaring that no land acquired thereunder shall be liable for any debt contracted prior to the issuance of the patent therefor, a sheriff's deed made pursuant to an execution sale for a debt contracted before the patent issues conveys nothing.

2. A judgment reforming a deed of trust, correcting a mistake in the description of the land conveyed, and ordering its foreclosure as reformed, has no greater force, as against prior incumbrancers of record, than the original deed, had it been as intended.

3. A homesteader has a mortgageable interest in his land before the patent issues therefor.

4. The homestead act (Rev. St. U. S. § 2296), providing that no land acquired thereunder shall be liable to the satisfaction of any debt contracted prior to the issuance of the patent therefor, applies only to debts enforceable by general execution, and not to liens acquired by mortgage or deed of trust.

5. The homestead act (Rev. St. U. S. § 2291), providing that no certificate shall be given or patent issued until the entryman "shall make affidavit that no part of such land so entered by him has been alienated," does not prevent the entryman from mortgaging or incumbering his homestead by deed of trust before the issuance of the patent, as a mortgage is not an alienation of land within the statute.

6. A recorded mortgage or deed of trust given by a homesteader at any time after his entry is notice to a subsequent grantee, though given prior to the issuance of a patent for the land.

Appeal from circuit court, Greene county; James T. Neville, Judge.

Action by Jerome Dickerson against James T. Bridges and another. From a judgment for plaintiff, defendants appeal. Reversed.

Lincoln & Lydy, for appellants. J. J. Collins, for respondent.

ROBINSON, J.

In an action of ejectment for the land in suit, between plaintiff as the purchaser thereof at foreclosure sale under a second deed of trust, and the defendant in possession as the purchaser, under a first or prior deed of trust thereon by the same grantor, as well as purchasers thereof at execution sale against said grantor, the trial court, upon the following facts, rendered judgment in favor of plaintiff for the possession of the land. Under the homestead laws of the United States, Henry Cutburth entered the tract of land in suit on December 28, 1885. On October 17, 1887, he and wife, while in possession of the land, executed a deed of trust on same, containing the usual covenants, to William C. Price, trustee, to secure a note for $600, payable to Irwin W. Jenkins. On the 31st day of August, 1888, the said Cutburth commuted his homestead entry (as provided by the homestead act then in force) into a cash entry, and on said day paid to the receiver of the United States district land office the full amount due thereon, and got his final receipt therefor. Afterwards, on the 3d day of September, 1888, Cutburth and wife executed a second deed of trust to S. A. Haseltine, trustee for the use of the plaintiff in this action, intending to cover the land in suit, but described it inaccurately. This deed was filed for record on the 4th day of September, 1888. On the 23d of May, 1889, a patent to the land was issued to said Cutburth. By a deed of trust bearing date September 3, 1888, but not filed for record until April 13, 1891, Cutburth and wife executed a second deed of trust to S. A. Haseltine, for the use of the plaintiff, on the land in suit, in which deed it is stated: "This deed of trust is made to correct the description made in a deed of trust of the above date, recorded in book 38, page 141, recorder's office, Greene county, Mo., in which I made a mistake in giving the description of land, intending to cover the tract of 80 acres that I was then paying on," etc. August 28, 1888, one James Hodnett obtained a judgment against said Cutburth for $____, and afterwards had Cutburth's interest in the land sold on execution, and at said sale became the purchaser thereof, and took a sheriff's deed therefor. By mesne conveyances defendant became the owner of that interest. On January 19, 1893, plaintiff in this action obtained a judgment against Cutburth, correcting the misdescription in the deed of trust made by Cutburth and wife September 3, 1888, to S. A. Haseltine, trustee, for use of this plaintiff, so as to make it cover the land in suit, and foreclosing the equity of redemption of said Cutburth therein, with an order that said land be sold to satisfy plaintiff's debt. At the execution sale of said land under said judgment, the plaintiff, on May 25, 1894, became the purchaser thereof. It is also shown, by the finding of facts made at the trial court and filed herein, that the plaintiff, Dickerson, had no actual knowledge of the execution of the deed of trust made by Cutburth and wife on the 17th of October, 1887, at the time he loaned to Cutburth the money for which the second deed of trust was given as security, and that Cutburth was at the time in the possession of the land, claiming same under his homestead entry. Under these facts, is the judgment of the trial court warranted? To sustain same, respondent contends: First. That Cutburth's interest in the land was not liable to sale under general execution for debt before a patent had issued; hence no title passed to defendants through the sheriff's deed. Second. That under the federal homestead act he could make no valid mortgage or deed of trust upon the land prior to the time he was entitled to make his final proof, or prior to commutation to a cash entry, and the issuance of the register's receipt for the money; hence defendants got nothing under the first deed of trust made by Cutburth on October 17, 1887. Third. That the record of the first deed of trust, if it be held good as between the parties thereto, was not constructive notice to plaintiff, who took the second deed of trust in good faith, and in actual ignorance of the first. Fourth. That Cutburth had the right to mortgage this land to secure his indebtedness to plaintiff, after he had commuted his homestead in a cash entry, and made his final payment thereon, and had the register's receipt therefor, and before the actual issuance of the patent to him.

That defendant got nothing through the sheriff's deed to the land under the execution sale based on the judgment against Cutburth is unquestioned. That sale was in plain contravention of ...