Fariss v. Deeming Inv. Co.

• Decision Date: 30 July 1897
• Parties: WILLIAM S. FARISS et al. v. THE DEEMING INVESTMENT CO.
• Court: Oklahoma Supreme Court

1897 OK 65

49 P. 926

5 Okla. 496

WILLIAM S. FARISS et al. v. THE DEEMING INVESTMENT CO.

Supreme Court of Oklahoma

Decided: July 30, 1897

Error from the District Court of Oklahoma County.

Syllabus

¶0 1. HOMESTEAD--Mortgage Subsequent to Final Receipt and Prior to Patent Valid. Notwithstanding the provisions of § 4 of the Homestead act, (12 Statutes-at-Large, 393), a mortgage executed upon land after the homestead entryman has made final proof and received final certificate therefor is valid and such mortgage may be enforced by foreclosure and sale of the land.

2. MORTGAGE--May be Foreclosed, When. Where a party has made final proof for a homestead under the laws of the United States, and received from the government a final certificate therefor, and thereafter executes a mortgage, the party in whose favor the mortgage runs may, upon default, foreclose the same, notwithstanding a contest may have been instituted in the land department to cancel the certificate issued to the entryman.

Allen & Allen, for plaintiff, in error.

Reddick, Lewis & Snyder, for defendant in error.

DALE, C. J.:

¶1 The Deming Investment company, defendant in error, on the twentieth day of June, 1896, commenced a foreclosure proceedings in the district court of Oklahoma county, against William S. Fariss and others, to foreclose a real estate mortgage, given by defendants below, upon a fractional quarter section of land, situated in Oklahoma county. A defense was interposed to the action upon the ground that, prior to the execution of the mortgage, a patent had not issued from the government to the entryman, and second, that since the government had issued its final receipt for the land, a contest proceeding was instituted by another party to cancel the certificate so issued. A demurrer was interposed to the answer, and by the lower court sus- tained and judgement of foreclosure entered.

¶2 Upon the first questioned raised, it is sufficient to state that under the act of congress providing for homesteads upon the public domain, it is provided that a settler upon such lands may, after he has resided upon and cultivated the same for a period of five years, enter a tract of land not exceeding one hundred and sixty acres, and upon proof of settlement and cultivation, shall be entitled to a patent for the land. It has been held by numerous courts that after a settler has resided upon the land and cultivated the same in accordance with the law for a period of five years, and made proof of such fact and received his final certificate, he at once becomes entitled to a patent therefor, and the owner of the land, and that his right to convey and pass title thereto is absolute. This question was before the supreme court of Kansas in Watson et al. v. Voorhees et al., 14 Kan. 328, and the court therein held such to be the law. And in Newkirk v. Marshall, 35 Kan. 77, 10 P. 571, in speaking to this question, the court, by Valentine, J., uses the following language:

"Under the United States homestead laws, and by a compliance with them, a person entering a homestead, or in case of his death, his widow or in case of death of both, his heirs or devisees, obtain a vested right in the homestead at the expiration of five years from the

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