Gould v. Tucker

• Decision Date: 29 November 1905
• Citation: 105 N.W. 624,20 S.D. 226
• Parties: GOULD v. TUCKER et al.
• Court: South Dakota Supreme Court

105 N.W. 624

20 S.D. 226

GOULD v. TUCKER et al.

Supreme Court of South Dakota

November 29, 1905

On rehearing. Judgment of trial court affirmed.

For former opinion, see 100 N.W. 427.

FULLER P. J.

Reference to 100 N.W. 427, will disclose that this appeal now pending on rehearing involves the legal right to subject respondent's undivided interest in a quarter section of land to the payment of a judgment entered against her on account of a promissory note which she and her subsequently deceased husband, James S. Gould, executed and delivered to appellant O. C. Tucker in the year 1893. James S. Gould was the timber culture claimant of the premises in controversy, who, upon proof of a compliance with the governing statute obtained a final certificate on the 14th day of November, 1894, and on the 24th day of February, 1895 departed this life without receiving the patent, which in his name the United States issued four months later, and the same was delivered to his widow, Mina A. Gould, who now maintains that the premises described therein are not liable for the debt contracted by herself and husband prior to the date of the final certificate.

It is settled beyond dispute that the heirs of a timber culture entryman upon public lands of the United States, who dies before completing the period of occupancy and receiving the patent, succeed to all his rights, and upon making the required proof take title as direct grantees and purchasers from the government, and not by inheritance. Aspey v Barry, 13 S.D. 220, 83 N.W. 91. In case of Towner v Rodegeb, 33 Wash. 153, 74 P. 50, 99 Am. St. Rep. 936, the court concludes its discussion of the proposition as follows: "It therefore seems to be the policy of the law to guard homestead rights for the benefit of the entryman himself, and, in case of his death before patent, for the benefit of his heirs. Whatever rights survive the death of the homesteader belong to the heirs, and not to the estate of the deceased. The heirs do not succeed to such rights by inheritance, but by virtue of the law, which merely grants to them preference rights. If they fail to exercise those rights, or if, as in this case, there are no heirs capable as citizens of the United States, of succeeding to such rights, then there is no one else to whom any preference right survives, and the land is open, as a part of the public domain, for occupancy by any qualified homesteader. The administrator, as such, succeeds to no rights in the homestead, for the reason that these are reserved for the heirs, and the law does not invest the administrator with any rights therein simply because there are no heirs." Even though the administrator of the estate of a deceased entryman uses money belonging to the estate to commute the entry by payment of the required amount to the United States, all rights under the patent inure to the heirs, as if their names had been specially mentioned therein and neither the administrator nor probate court have authority to sell the land to satisfy debts previously created, or burden the same with any part of the expense incurred in securing the patent. Rogers v. Clemmans, 26 Kan. 522. To the same effect are the following cases: Cooper v. Wilder, 111 Cal. 191, 43 P. 591, 52 Am. St. Rep. 163; Hershberger v. Blewett (C. C.) 55 F. 170.

Now the only interest in government land that the United States can convey by patent under the timber culture act is an estate free from all involuntary liens and debts of the patentee contracted prior to the issuance of the final certificates and if the entryman dies before receiving a patent, "the title to the land designated therein shall inure to and become vested in the heirs, devisees, or assigns, of such deceased patentee as if the patent had issued to the deceased person during life." Rev. St. U.S. § 2448 [U. S. Comp. St. 1901, p. 1512]. As James S. Gould died after making final proof of all the acts required by law, the title to the land described in the patent subsequently issued vested in his heirs an estate as free from their debts as it would have been free from his debts had he lived to...