Leman v. Chipman

• Decision Date: 08 October 1908
• Docket Number: 15,270
• Citation: 117 N.W. 885,82 Neb. 392
• Parties: HARRY W. LEMAN, TRUSTEE, APPELLANT, v. JESSE P. CHIPMAN ET AL., APPELLEES
• Court: Nebraska Supreme Court

117 N.W. 885

82 Neb. 392

HARRY W. LEMAN, TRUSTEE, APPELLANT, v. JESSE P. CHIPMAN ET AL., APPELLEES

No. 15,270

Supreme Court of Nebraska

October 8, 1908

APPEAL from the district court for Saline county: LESLIE G. HURD JUDGE. Affirmed.

AFFIRMED.

Benjamin F. Johnson, for appellant.

R. M Proudfit and Hastings & Ireland, contra.

CALKINS C. FAWCETT and ROOT, CC., concur.

OPINION

CALKINS, C.

This is a creditor's suit to set aside a conveyance of an 80-acre tract of land made by the defendant Jesse P. Chipman to his wife, the defendant Mary L. Chipman, and to subject the same to the payment of a judgment against the first named defendant. The land was entered by Jesse P. Chipman under the provisions of the several acts of congress to encourage the growth of timber on the western prairies, commonly known as the "timber culture law." The final certificate was dated March 7, 1893. The plaintiff's judgment was recovered upon an appeal bond which Jesse P. Chipman signed as surety for one Morrissey to enable the latter to review in this court a judgment rendered against him in the district court. The bond was dated November 13, and approved November 16, 1891. There is no evidence as to the date upon which default in the condition of the bond occurred, but judgment was rendered thereon May 22, 1895. The bond having been signed prior to the issuance of the final certificate, the defendants pleaded that fact, and claimed that the land could not be held liable for the satisfaction of the plaintiff's judgment under the provision of the timber culture act, which provides: "That no land acquired under the provisions of this act shall in any event become liable to the satisfaction of any debt or debts contracted prior to the issuing of the final certificate therefor." Act March 3, 1891, 26 U.S. St. at Large, ch. 561, p. 1096. This defense was sustained by the court below, which rendered judgment for the defendant; and from this judgment the plaintiff appeals.

The plaintiff argues that the liability assumed by the signing of the bond was not at that time a debt, because it was not a direct promise for the payment of money, but an undertaking to pay upon the contingency that the judgment against Morrissey should be affirmed, and that he should himself fail to discharge it. Blackstone (book 3, p. *154) defines the word "debt" as "a sum of money due by a certain and express agreement; as, by a bond for a determinate sum; a bill or note; a special bargain; or a rent reserved on a lease, where the quantity recoverable is fixed and specified, and does not depend upon any subsequent valuation to settle it." A debt, according to Webster, is "that which is due from one person to another, whether money, goods or services; that which one person is bound to pay another or to perform for his benefit; that for which payment is liable to be exacted; due; obligation; liability." It will thus be seen that the interpretation put upon the word varies from the narrow legal definition which distinguishes it from other contractual obligations, and liabilities growing out of torts, to the broad and comprehensive sense which includes all legal duty. The question here presented is whether in the statute referred to congress intended to use it in its narrow legal sense, or in its more popular and broader meaning of that which one person is bound by law to pay to, or to perform for, another. The provision we are considering was first inserted in the homestead law of 1862; and, when the timber culture law was enacted, the same provision was inserted therein, except that the period of contracting debts for the payment of which the land entered should be exempt ended under the timber culture law with the issue of the final certificate, and under the homestead law extended to the issuance of the patent. The reason for the provision was the same in both cases, and is easily discerned. Congress was about to prescribe conditions under which homes for the homeless might be secured upon the public domain. If they were granted under conditions which enabled creditors to seize the land as soon as title was granted by the government, it would offer no opportunity for those burdened with debts which they were unable to pay, a class which it was especially desired to reach and benefit. That the land might not be taken from the entryman as soon as acquired, but that he might have a new start in life, was the object to be gained by this provision. There is no reason why the land so granted should not be taken for a debt arising upon an unconditional agreement to pay that does not apply to debts growing out of liabilities that were, when contracted, contingent; and, if a statute is to be construed with reference to the object to be attained, it would seem as if the broader signification should be given to the word under consideration.

The question whether this liability applies to wrongs has frequently been considered, and the weight of authority seems to be that the word debt in exemption statutes includes all kinds of...