Jackson v. McKeown

• Decision Date: 10 May 1926
• Docket Number: 11433.
• Citation: 246 P. 277,79 Colo. 447
• Parties: JACKSON v. McKEOWN et al.
• Court: Colorado Supreme Court

246 P. 277

79 Colo. 447

JACKSON v. McKEOWN et al.

No. 11433.

Supreme Court of Colorado

May 10, 1926

Department 2.

Error to District Court, Cheyenne County; Wilbur M. Alter, Judge.

Suit by Abe Jackson against R. H. McKeown and another. Judgment for defendants, and plaintiff brings error and applies for supersedeas.

Reversed and remanded.

Charles H. Beeler, of Hugo, for plaintiff in error.

Edwin N. Burdick and Clarence O. Moore, both of Denver, and F. E Miller, of Topeka, Kan., for defendants in error.

ALLEN, C.J.

This is a suit in equity to restrain a levy upon land which plaintiff acquired from the government. Judgment being for defendants plaintiff brings error, and applies for a supersedeas with a request that the cause be disposed of as upon final hearing.

On May 5, 1915, plaintiff filed on the land in question as a homestead under the Homestead Acts of the United States. He received his final certificate on May 18, 1918, and his patent about six months later. On March 29, 1915, which was long prior to the issuance of the patent, defendant McKeown as an accommodation maker, signed a promissory note with plaintiff. On April 2, 1921, McKeown was compelled to pay and did pay, the note in question. Thereafter he sued plaintiff, obtained a judgment, and now seeks to levy upon plaintiff's land. To enjoin such levy this action was brought by plaintiff, who invokes and relies upon Revised Statutes (U. S.) § 2296 (U. S. Comp. St. § 4551), which provides:

'No lands acquired under the provisions of this chapter shall in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor.'

The plaintiff contends that his debt to defendant McKeown was 'contracted' at the time defendant signed the note as accommodation maker, March 29, 1915, which date preceded the issuance of the patent for the land. The defendant contends that the debt was 'contracted' at the time he was compelled to pay, and did pay, the note, April 2, 1921, which was after patent issued. The sole question is, therefore, When was the debt contracted?

The time when a debt is contracted is not necessarily limited to the time when the debt exists as an enforceable obligation. Plaintiff's debt to defendant was contracted at the time defendant signed as accommodation maker. At that time plaintiff and defendant became, as to each other, principal and surety, respectively. Where a debt is that of a principal to a surety on a note, the debt is contracted at the time of the execution of the note. Griffin v. Long, 96 Ark. 268, 131 S.W. 672, 35 L.R.A. (N. S.) 855, Ann.Cas. 1912B, 622. The liability of a principal to indemnify his surety is deemed to arise at the time when the surety signs the note or otherwise enters into the obligation of suretyship. Griffin v. Long, supra; Byers v. Franklin Coal Co., 106...