Martyn v. Olson
| Decision Date | 12 September 1914 |
| Citation | 148 N.W. 834,28 N.D. 317 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Ward County, Leighton, J.
Action to quiet title. Judgment for defendant. Plaintiff appeals.
Reversed.
Judgment of the District Court reversed. Defendant and respondent paid the costs and disbursements of this appeal.
Gray & Myers, and Myers & Myers, for appellant.
The lien of a mortgage can only attach to some legal or equitable title or ownership, vested in the mortgagor at the time. Such title must be tangible,--"capable of being transferred." Rev. Codes 1905, §§ 6154, 6155 and 6163.
This is not only statutory, but it is in harmony with the general law. 27 Cyc. 1034a, 1035b, 1138-2, 1139d.
Where the heirs of a deceased homestead entryman who has not made final proof and obtained patent or made full compliance with the homestead laws, make such proof and receive patent, they acquire complete title as by original purchase or as donees from the government, and not through inheritance from deceased entryman. No "privity of estate" exists between them and the entryman. Gjerstadengen v. Van Duzen, 7 N.D. 612, 66 Am. St. Rep. 679, 76 N.W. 233; Gould v. Tucker, 20 S.D. 226, 105 N.W. 624; Aspey v. Barry, 13 S.D. 220, 83 N.W. 91; Haun v Martin, 48 Ore. 304, 86 P. 371; Kelsay v Eaton, 45 Ore. 70, 106 Am. St. Rep. 662, 76 P. 770; Wittenbrock v. Wheadon, 128 Cal. 150, 79 Am. St Rep. 32, 60 P. 664; Council Improv. Co. v. Draper, 16 Idaho 541, 102 P. 7; Powell v. Powell, 22 Idaho 531, 126 P. 1058; Towner v. Rodegeb, 33 Wash. 153, 99 Am. St. Rep. 936, 74 P. 50; Braum v. Mathieson, 139 Iowa 409, 116 N.W. 789; Hall v. Russell, 101 U.S. 503, 25 L.Ed. 829; Demars v. Hickey, 13 Wyo. 371, 80 P. 521, 81 P. 705; Walker v. Ehresman, 79 Neb. 775, 113 N.W. 218; McCune v. Essig, 199 U.S. 382, 50 L.Ed. 237, 26 S.Ct. 78; Hayes v. Carroll, 74 Minn. 134, 76 N.W. 1017; Doran v. Kennedy, 122 Minn. 1, 141 N.W. 85; Marley v. Sturkert, 62 Neb. 163, 89 Am. St. Rep. 749, 86 N.W. 1057.
The term "privity" denotes mutual or successive relationship to the same right of property. 6 Words & Phrases, 5606; Boughton v. Harder, 46 A.D. 352, 61 N.Y.S. 574; Sherin v. Brackett, 36 Minn. 152, 30 N.W. 551; Patton v. Pitts, 80 Ala. 373.
It is immaterial that the entryman could have committed, or was in a position to rightfully commute his homestead entry, and obtain title. The fact still remains that he did do so, or attempt to do so. Circular No. 10, General Land Office and U.S. Laws; U.S. Rev. Stat. § 2291, U.S. Comp. Stat. 1901, p. 1390, 6 F. Stat. Anno. p. 292; 39 Cyc. p. 1239 (b).
The full title to government lands remains in the government until patent issues, or, in commutation cases, until the full compliance with the requirements of the law and the payment of the purchase price. Kneen v. Halin, 6 Idaho 621, 59 P. 14; Wittenbrock v. Wheadon, 128 Cal. 150, 79 Am. St. Rep. 32, 60 P. 664; Hussman v. Durham, 165 U.S. 144, 41 L.Ed. 664, 17 S.Ct. 253.
Such land so held is no part of the estate of the entryman, and does not descend as such. It is disposed of by act of Congress, and the patentee takes his title, not by descent from the ancestor, but by purchase from the government. Doran v. Kennedy, 122 Minn. 1, 141 N.W. 851.
There being no "privity of estate" between the patent holder and such deceased entryman, neither the doctrine of estoppel nor that of "relation back" will subordinate the rights of the patent holder to those of a mortgagee under a mortgage made by the entryman before final proof or patent. 16 Cyc. "Who Are Privies," p. 716 (c); "Heirs and Devisees," p. 718 (III. ); Gibson v. Chouteau, 13 Wall. 92, 20 L.Ed. 534; Hussman v. Durham, 165 U.S. 144, 41 L.Ed. 664, 17 S.Ct. 253.
Such a mortgage is not enforceable against the heirs of the deceased entryman, who receive their patent from the government. Marley v. Sturkert, 62 Neb. 163, 89 Am. St. Rep. 749, 86 N.W. 1057.
Coyle & Herigstad, for respondent.
Heirs at law take land subject to preliminary mortgages placed thereon by the homestead entryman. Title, after acquired by patent to the homesteader, inures to the mortgagee as of date of execution and delivery of mortgage. N.D. Rev. Codes 1905, § 6155; Circular No. 10 of the Department of Interior, § 32; U.S. Rev. Stat. § 2448, U.S. Comp. Stat. 1901, p. 1512; Meinhold v. Walters, 102 Wis. 389, 72 Am. St. Rep. 888, 78 N.W. 574; U.S. Rev. Stat. § 2296, U.S. Comp. Stat. 1901, p. 1398; Marley v. Sturkert, 62 Neb. 163, 89 Am. St. Rep. 749, 86 N.W. 1056; Gould v. Tucker, 20 S.D. 226, 105 N.W. 624.
A mortgage executed by a homesteader after he had done all he was required to do under the law, although patent has not issued, is valid and enforceable. Cheney v. White, 5 Neb. 261, 25 Am. Rep. 487; Nycum v. McAllister, 33 Iowa 374; Lewis v. Wetherell, 36 Minn. 386, 1 Am. St. Rep. 674, 31 N.W. 356; Fuller v. Hunt, 48 Iowa 163; Lang v. Morey, 40 Minn. 396, 12 Am. St. Rep. 748, 42 N.W. 88; Skinner v. Reynick, 10 Neb. 323, 35 Am. Rep. 479, 6 N.W. 369; Meinhold v. Walters, 102 Wis. 389, 72 Am. St. Rep. 888, 78 N.W. 574; Ford v. Ford, 24 S.D. 644, 124 N.W. 1111.
A homesteader whose good faith is otherwise apparent may mortgage his homestead claim before final certificate, to procure money with which to work and improve his claim. Mudgett v. Dubuque & S. C. R. Co. 8 Land Dec. 243; U.S. Rev. Stat. § 2262; Kezar v. Horde, 27 Land Dec. 148.
This is an equitable action for the purpose of having title to real estate quieted in plaintiff, and to remove the mortgage from such land as a cloud upon such title. Therefore, he who seeks equity must do equity. Tracy v. Wheeler & Scott, 15 N.D. 249, 6 L.R.A.(N.S.) 516, 107 N.W. 68; Cotton v. Horton, 22 N.D. 1, 132 N.W. 225.
Statement
This is an action to quiet title. In December, 1904, one Robert J. Martyn, a single man, made homestead entry, under the government land laws of the United States, upon the land described in the complaint, and under such entry, lived upon, occupied, and made the same his home for about thirty-eight months continuously thereafter, when he died intestate, unmarried, without issue, and without having made or attempted to make final proof upon said land, or to otherwise secure title thereto, and without having secured any such title. About a year prior to his death, being indebted to the respondent, Jourgen Olson, the said Robert J. Martyn executed and delivered to said respondent his promissory note for the amount of his indebtedness, and as security for the same also executed and delivered to respondent a mortgage upon the land in question and upon another quarter section of land, which latter piece of land, however, was already encumbered. No part of this indebtedness had been paid at the time of the death of the said Robert J. Martyn, and the mortgage securing the same has ever since remained of record unsatisfied. There is no showing that the money was used in improving the land. It is admitted, however, that it was used to defray the expenses of the homesteader while living upon it. Shortly after the death of the said Martyn, the said Olson, under a power of sale, in the usual form, contained in said mortgage, caused his mortgage to be foreclosed by a sale of the land covered thereby, himself became the purchaser, and a sheriff's certificate of said mortgage sale was duly issued to him, which he caused to be recorded and which now appears of record. On April 24, 1908, that is to say, two months after the death of the said Robert J. Martyn, and without any further residence on or cultivation of the land than that furnished by the deceased, the heirs of said Martyn took the proceedings required by the homestead laws of the United States to commute said homestead entry and procure patent to said land to be issued to them. They paid the government purchase price, together with all fees, made the required proof, and a patent was subsequently issued to the appellant, John Martyn, as the sole non-alien heir of the said Robert J. Martyn, as was duly established and decree by a former decree of the district court of the eighth judicial district, Ward county, North Dakota. The appellant then instituted this action to have the record of the said mortgage and certificate of sale canceled as clouds on this title, and to have the title to said land quieted in him as against the respondent. The district court having decided adversely to him, he has now appealed to this court and has asked for a trial de novo.
BRUCE, J. (after stating the facts as above). Although the courts at first doubted the validity of a mortgage which was made before the issuance of the patent and this even as against the original homesteader, they later, and in a number of recent decisions, have asserted the doctrine of what may be termed the inchoate right to legal title in the entryman, and have upheld such mortgages as promises to mortgage and inchoate liens which become vested and enforceable when the patent is once issued to the entryman. See Adam v. McClintock, 21 N.D. 483, 131 N.W. 394, and cases cited. They have, on the other hand, held that until the issuance of such final patent, or at any rate, until the doing of all things by the entryman which are prerequisite thereto the entryman has no complete title in the land, either legal or equitable, nor has his estate after his decease. Whatever right he had under his homestead entry they have held is terminated at his death and the title to the land reverts to the government and does not pass to his heirs or to his estate after his decease. These heirs, under U.S. Rev. Stat. §§ 2291, 2301, U.S. Comp. Stat. 1901, pp. 1390, 1406, 6 F. Stat. Anno. pp. 292, 317; section 32, Circular No. 10, of the Department of the...
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