Flanagan v. Forsythe

• Decision Date: 30 July 1897
• Citation: 6 Okla. 225,50 P. 152,1897 OK 68
• Parties: JOHN J. FLANAGAN v. H. C. FORSYTHE.
• Court: Oklahoma Supreme Court

1897 OK 68

50 P. 152

6 Okla. 225

JOHN J. FLANAGAN v. H. C. FORSYTHE.

Supreme Court of Oklahoma

Decided: July 30, 1897

Error from the District Court of Oklahoma County; before Henry W. Scott, District Judge.

Syllabus

¶0 TORT--Liability For--When Considered a Debt Contracted. The congressional enactment providing that no lands acquired under the federal homestead laws "shall, in any event, become liable for the satisfaction of any debt or debts contracted prior to the issuing of patent therefor," includes a liability for a tort growing out of a breach of contract warranting the title to certain personal property.

2. HOMESTEAD--Exemption From Liability For Debts--Expires When. The exemption from liability for debts of lands entered as homesteads, provided by sec. 2296 of the revised statutes of the United States, no longer applies to said lands after final proof has been made and final, or patent, certificates issued therefor.

Field & Shear, for plaintiff in error.

Amos Green & Son, for defendant in error.

STATEMENT OF FACTS.

The following are the material facts in this case, to-wit:

1. On February 15, 1890, Jefferson L. Byrne sold to plaintiff in error a span of horses, fraudulently representing that the said horses were his (Byrne's) property, when, in fact, they were owned by one J. A. Little who, on the 27th day of January, 1891, legally took the possession thereof from said plaintiff in error.

2. The said plaintiff in error, on the 3rd day of February, 1891, brought an action in the district court of Oklahoma county for damages, in the sum of five hundred dollars, against the said Byrne, on account of the fraudulent sale to him of the said horses and the failure of the title thereto, and in said action, on said date, caused an attachment to issue out of said court against the property of the said Byrne, which said writ of attachment was forthwith levied upon the southeast quarter of section 30, township 14, north, range 1, west I. M., and the said Byrne was duly served in said action, and, subsequently thereto, entered his appearance therein.

3. On January 31, 1893, the said cause of John J. Flanagan v. Jefferson L. Byrne was regularly called for trial in said court and the said court and the said Byrne failed to appear but made default therein, and thereupon the said Flanagan introduced his evidence in said cause upon which judgment was rendered in his favor for the sum of $ 415 and costs of said suit, and the attachment theretofore issued out of said court and levied upon said above described tract of land was duly sustained, and an order of sale made directing that so much of said tract as was necessary be sold and the proceeds derived therefrom applied to the payment of said judgment and costs.

4. Some time prior to the sale of said span of horses to said plaintiff in error by the said Jefferson L. Byrne, he (Byrne) entered the said tract of land, so levied upon and ordered sold under said writ of attachment, as a homestead under the laws of the United States, and, on August 11, 1890, made final proof therefor at the United States land office at Oklahoma City, O. T., and received from the receiver of said land office at final or patent receipt for said tract of land, and a patent therefor was duly issued to him by the United States on November 3, 1891, and the complete legal and equitable title to the said land remained in said Jefferson L. Bryne up to the time of the rendition of the said judgment against him and in favor of the plaintiff in error.

5. On July 12, 1893, the said Jefferson L. Byrne, for a valuable consideration, by deed, conveyed all his right, title and interest within and to said above described tract of land to H. C. Forsythe, the defendant in error herein, who, on August 23, 1893, and before any execution had been issued on the judgment hereinbefore mentioned and set out, commenced an action in the district court of said Oklahoma county, Oklahoma Territory, to restrain the said plaintiff in error from causing execution to issue on said judgment against the said above described tract of land, to cause the said judgment to be vacated, annulled and set aside in so far as it affected in any way the title to said land, and to have his own title thereto quieted and all clouds removed therefrom. Plaintiff in error answered by general denial, and further alleging that his judgment lien was prior and superior to any title acquired by said defendant in error from said Byrne by reason of said deed of conveyance.

6. On the 17th day of October, 1894, the said cause of H. C. Forsythe v. John J. Flanagan, et al., was called for trial and, after agreement of parties thereto, was, by the court, referred to L. B. Treadwell, Esq., an attorney of Oklahoma City, "to hear and determine the same on both questions of law and fact," and the said referee, after several hearings and contradictory reports in said cause, and re-references thereof, finally decided the same in favor of the said H. C. Forsythe, defendant in error herein, and recommended that a judgment be entered in his favor for the relief demanded in his said petition; thereafter, and on January 30,1895, the court entered judgment in said cause, affirming the last report of the said referee, and the said John J. Flanagan, after his motion for a new trial had been duly filed, overruled, and the ruling of the court thereon excepted to, brings error for the purpose of reversing said judgment.

KEATON, J.:

¶1 The decision of this cause depends entirely upon the construction to be given sec. 2296, of the revised statutes of the United States, which reads as follows: "No lands acquired under the provisions of this chapter shall in any event become liable to the satisfaction of any debt or debts contracted prior to the issuing of the patent therefor." Counsel for plaintiff in error contend that the judgment against him should be reversed on two grounds: First, because his claim against the said Byrne never became a debt within the meaning of the above section until after judgment had been obtained thereon, viz: January 31, 1893, and patent to said tract of land having issued long prior thereto, said judgment at once became a lien thereon. Second, that the commutation of a homestead entry and the making of final proof and obtaining the final, or patent, certificate for the tract of land covered by said entry by a person qualified to obtain title to such land, who has complied with the requirements of the law regulating the disposition of same, is, so far as the question herein involved is concerned, equivalent to the issuance of the patent itself to such person.

¶2 We do not think the first contention of counsel is supported either by the weight of authority or the better reason. The writer's views, upon the proposition first raised, are perfectly expressed by Chief Justice Kelly, speaking for the court, in State v. O'Neil, 7 Ore. 141, where, in construing said sec. 2296, R. S. U. S., he says:

"The words 'debts contracted' do not necessarily mean debts or obligations incurred by an agreement of parties. The word contract has a more extensive signification than to make an agreement. Debts contracted in the ordinary acceptation of the term will include liabilities incurred. If, for a trespass committed by a homestead claimant, a judgment for damages should be recovered against him before the issuing of a patent for the land, we hold that the homestead could not lawfully be sold on an execution issued upon the judgment after the date of the patent. The object congress had in view, by the enactment of that law, was to secure permanent homes to settlers on the public domain, and in no event to allow them to be sold upon execution to discharge any liability incurred by the homestead claimants before the patent should issue."

¶3 The liability of Byrne to plaintiff in error was complete on January 27, 1891, when the latter lost the property which he had purchased, under guaranty of title from the former. If this was not so, how did plaintiff in error maintain his action, accompanied by the ancillary proceeding of attachment, against Byrne? See also upon this proposition, Smith v. Omans, 17 Wis. 406; Mertz v. Berry, [Mich.] 59 N.W. 445; Warner v. Cammack, 37 Iowa 642; Loomis v. Gerson, 62 Ill. 11.

¶4 We also concur fully with the reasoning of the court, per Cole, justice, in Warner v. Cammack, supra, upon a question almost identical with the one here involved. That was a case where the plaintiff had sold to defendant "a certain patent improvement in a mop wringer, for the county of Blackhawk, in Iowa, for the sum of $ 100," and the defendant had, thereafter, in a justice's court, obtained a judgment for damages against him in the sum of $ 100, "in an action brought for fraudulent representations, etc., in the sale of said patent improvement in mop wringer," a transcript of which said judgment for the sum of $ 100 had been duly filed in the district court clerk's office of Fayette county, in said state, and execution issued thereon, which had been levied on the premises in controversy. Then Warner, the defendant in said action before said justice of the peace, brought this action to enjoin the sale of said premises under said execution, on the ground that they were exempt as a homestead. It was conceded on the trial of said action that said premises did constitute the homestead of the plaintiff therein, but it was contended that they were subject to execution under a section of the Iowa statute providing that "the homestead may be sold on execution for debts contracted prior to the purchase thereof," etc. (Sec. 1992, McLain's An. St. 1884.) In construing the words "debts contracted," the supreme court of Iowa says:

"And hereon the question is resolved to the single point, whether the cause of action whereon the judgment was rendered, was a debt, within the meaning of that word as used in the homestead exemption statute. We hold that it was a debt. And

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