Marley v. Sturkert

• Decision Date: 19 June 1901
• Citation: 86 N.W. 1056,62 Neb. 163
• Parties: MARLEY v. STURKERT ET AL.
• Court: Nebraska Supreme Court

62 Neb. 163

86 N.W. 1056

MARLEY

v.STURKERT ET AL.

Supreme Court of Nebraska.

June 19, 1901.

Syllabus by the Court.

A homestead claimant, after making a homestead entry, and occupying public land under the United States homestead laws, executed a mortgage on the land thus occupied, and, before full compliance with the law entitling him to make final proof and obtain title thereto, died. Held, as against his heirs at law, who perfected the entry, made the required final proof of settlement and cultivation, and obtained from the government title to such land, that the mortgage was ineffectual to create any valid lien thereon.

Appeal from district court, Custer county; Sullivan, Judge.

Action by Paul H. Marley against Henry Sturkert and others. Judgment for defendants, and plaintiff appeals. Affirmed.C. L. Gutterson, for appellant.

J. B. Smith and James Leavitt, for appellees.

HOLCOMB, J.

To a petition in equity for the foreclosure of an alleged lien of a mortgage on real estate, a demurrer was interposed and sustained. The correctness of the ruling on the demurrer is challenged. The sole and only question raised by the demurrer is the validity of lien claimed by virtue of the mortgage on the real estate described therein. The petition discloses that the mortgage was executed by a homestead claimant after entry made under the United States public land laws relating to the acquisition of title to government lands as a homestead of the entryman. It is alleged that the mortgagor was occupying the land under a government homestead entry at the time of the execution of the mortgage; that the mortgage was given to secure a loan for money advanced to make improvements on the land, and for necessary living expenses of the claimant while so residing on his homestead; that he died December 16, 1896; and that his heirs at law (naming them) on February 15, 1897, made final proof on the land as the heirs at law of the deceased entryman, and now claim the land and interest therein as the heirs of the deceased. It is not stated in the petition for what length of time the deceased had resided on and improved the land prior to his death, or other facts from which it could be inferred that at the time of his death he had complied with all the requirements of the homestead act, and become entitled thereby to make final proof, and receive a final certificate and patent therefor from the United States government. From what is stated in the petition, we must conclude that at the time of his...