First State Bank of Shelby v. Bottineau County Bank
| Decision Date | 30 October 1919 |
| Docket Number | 4030. |
| Citation | 185 P. 162,56 Mont. 363 |
| Parties | FIRST STATE BANK OF SHELBY v. BOTTINEAU COUNTY BANK et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Cascade County; J. B. Leslie, Judge.
Action by the First State Bank of Shelby against the Bottineau County Bank and another. Judgment of dismissal, and plaintiff appeals. Reversed and remanded, with directions.
Jesse G. Henderson, of Shelby, and Freeman & Thelen, of Great Falls, for appellant.
H. S Kline and C. B. Elwell, both of Havre, for respondents.
On July 25, 1913, Charles R. Wilbur made final proof upon 320 acres of land which he had theretofore entered under the Enlarged Homestead Act. On July 30, 1913, the Bottineau County Bank recovered judgment against Wilbur in the district court of the Twelfth judicial district in and for Hill county, and a certified copy of the transcript of the original docket was filed in Toole county, where the land above mentioned is located. In January, 1914, Wilbur received patent, and on April 15, 1914, sold and conveyed the land by warranty deed to the First State Bank of Shelby. In November, 1914, the Bottineau County Bank caused execution to be issued on its judgment, placed the same in the hands of the sheriff of Toole county, who levied upon the land and advertised it for sale. The First State Bank of Shelby thereupon commenced this action in the district court of the Eighth judicial district to secure an injunction restraining the judgment creditor and the sheriff from proceeding with the sale.
To the complaint, which sets forth the history more in detail, the defendants interposed a demurrer, first, upon the ground that the court did not have jurisdiction of the subject-matter of the action; and, second, upon the ground that the complaint did not state a cause of action. The court sustained the demurrer as to the second ground, indicating in its order that a 320-acre homestead acquired under the Enlarged Homestead Act is liable for the debts of the homesteader contracted before patent issues. Plaintiff, declining to plead further, suffered a judgment of dismissal to be entered against it and appealed.
There is no merit in the first ground of the demurrer. The purpose of this action is to restrain the sale of plaintiff's property to satisfy a judgment against Wilbur, and not to restrain the enforcement of the judgment against Wilbur or against any property he may have.
This appeal presents the novel question: Is a 320-acre homestead liable for the debts of the homesteader contracted prior to the issuance of patent? If this question is to be answered in the affirmative, then the judgment became a lien upon the land in controversy while owned by Wilbur, and the Shelby Bank acquired its title subject to that lien, and is not entitled to the relief sought. If the question is to be answered in the negative, then the complaint states a cause of action for the relief demanded.
Under the original homestead act of May 20, 1862, c. 75 (12 Stat 392), as it has existed from the date of its enactment to the present time, the land acquired thereunder (160 acres) cannot "in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor." Section 2296, U.S. Rev. Stat. (U. S. Comp. St. § 4551). There cannot be a controversy over the purpose which the Congress had in enacting that statute. It was designed to provide the homesteader and his family sufficient land upon which to make a home (Ruddy v. Rossi, 248 U.S. 104, 39 S.Ct. 46, 63 L.Ed. 148), and to secure that land against the homesteader's prior misfortune or improvidence (Anderson v. Carkins, 135 U.S. 483, 10 S.Ct. 905, 34 L.Ed. 272). It was designed solely for the benefit of the grantee and his family, and not for the benefit of antecedent creditors. Lewton v. Hower, 18 Fla. 872.
During most of the period when the homesteader might secure 160 acres under the original homestead act, he might also secure 160 acres under the pre-emption act, and an additional 160 under the timber culture act, making in all 480 acres practically of his own selection, and that, too, land for the most part susceptible of successful cultivation without artificial irrigation. Under these favorable statutes the public domain of the Mississippi Valley and the humid regions of the Pacific Coast were settled. It is a part of the public history of our country that during the 40 years succeeding the enactment of the original homestead law, the best of the public lands were entered upon and title thereto secured from the government, leaving the later homeseeker to make his selection only from lands in semiarid regions and lands so rough and broken that but a comparatively small portion of entryable units could be cultivated. In other words, it came to require more than 160 acres of the lands available to entry, to make a home upon which the entryman could reasonably expect to succeed. In the meantime the pre-emption and timber culture acts were repealed, leaving only the original homestead law under which public land might be acquired, and the area limited to 160 acres. These facts, greatly enlarged upon and emphasized in an extended message by the President, were presented to the first session of the Sixtieth Congress, and bills looking to the enlargement of the area obtainable under the homestead laws were introduced. The history of those measures and subsequent bills having the same general purpose is too extensive to be recited here. It is sufficient to say that the outcome of the agitation was the Enlarged Homestead Act of February 19, 1909, c. 160 (35 Stat. at Large, 639 [U. S. Comp. St. §§ 4563-4568]). As originally enacted, the statute applied only to the nonmineral, nontimbered, nonirrigable, unreserved, unappropriated surveyed public lands in Colorado, Montana, Nevada, Oregon, Utah, Washington, Wyoming, Arizona, and New Mexico, designated by the Secretary of the Interior as not being, in his opinion, susceptible of successful irrigation, at a reasonable cost, from any known source of water supply. By subsequent amendments the act became applicable to the same class of lands in other western states.
The act is entitled: "An act to provide for Enlarged Homesteads." It contains but six sections. Section 1 defines the lands subject to entry under the act. Section 2 provides that a person applying to make entry shall furnish the affidavit required by section 2290 of the United States Revised Statutes, and in addition shall make affidavit that the land sought is of the character described in section 1. Section 3 provides for an entry additional to one already made at the time the act went into effect, in order that the entryman might secure the full amount-320 acres. Section 4 provides that in addition to the final proof required under section 2291, United States Revised Statutes, the entryman shall disclose that he has cultivated the required area. Section 5 declares that the provisions of this act shall not be construed to prevent a qualified homesteader from making entry under the original homestead act in any of the states named, but that a person who makes entry under the act of 1909 shall not be entitled to make entry under the original act. Section 6 relates only to the state of Utah. It will be seen at once that the Enlarged Homestead Act does not in terms change any of the provisions of the original act. The determination of the principal question before us, therefore, depends upon the proper construction of the Enlarged Homestead Act with reference to the original act.
Was it intended as an...
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