Nash v. The Farmers and Merchants Bank

• Decision Date: 01 February 1896
• Docket Number: 91
• Parties: DUANE H. NASH v. THE FARMERS AND MERCHANTS BANK
• Court: Kansas Court of Appeals

44 P. 907

3 Kan.App. 694

DUANE H. NASH v. THE FARMERS AND MERCHANTS BANK

No. 91

Court of Appeals of Kansas, Northern Department, Western Division

February 1, 1896

Opinion Filed May 5, 1896.

MEMORANDUM.-- Error from Norton district court; A. C. T GEIGER, judge. Action by The Farmers and Merchants Bank, of Hill City, Kan., against Duane H. Nash, to quiet title. Judgment for plaintiff. Defendant brings the case to this court. Affirmed. The opinion herein, filed May 5, 1896 states the material facts.

Judgment affirmed.

L. H. Wilder, for plaintiff in error.

H. J. Harwi, for defendant in error.

GARVER J., All the Judges concurring.

OPINION

GARVER, J.:

The parties to this action both claim title to the north half of the northwest quarter and the west half of the northeast quarter of section 27, in township 4 south, range 22 west, in Norton county. The plaintiff in error claims by virtue of a sheriff's deed executed to him by the sheriff of said county pursuant to a certain judgment and execution issued in an action pending in the district court of said county wherein Duane H. Nash was plaintiff and one E. Graham was defendant, and the defendant in error claims title by a direct conveyance from said Graham. Title to the land was acquired by Graham June 25, 1890, from the United States, under what is known as the timber-culture act. The debt for which the land was sold and the sheriff's deed executed was contracted prior to the issuing of the final certificate for said land to Graham. The only question is, whether the land is liable to be taken for the satisfaction of such debt.

In making provision for the disposition of public lands by "An act to amend an act entitled 'An act to encourage the growth of timber on the western prairies,'" approved June 14, 1878, congress enacted:

"SEC. 4. That no land acquired under the provisions of this act shall, in any event, become liable for the satisfaction of any debt or debts contracted prior to the issuing of the final certificate therefor."

The language of the above section seems sufficiently clear and specific, in itself, to settle the question raised in this case. It is, however, contended by counsel for plaintiff in error that congress has no power to attach any such conditions to the transfer of title to public lands; that, when transferred, an absolute estate in fee simple became vested in Graham, which, by the operation of the laws of the state, was subject to the lien of the judgment. Hence, it is argued that such attempted exemption must be held to be invalid, or construed to apply to the land only prior to the time when the United Stated parted with its title thereto.

With neither of these views can we agree. By the constitution of the United States (art. 4, § 3) it is provided:

"The congress shall have power to dispose of and make all needful rules and regulations respecting the territory and other property belonging to the United States; and nothing in this constitution shall be so construed as to prejudice any claims of the United States, or of any particular state."

In the act for the admission of Kansas into the Union, certain rights in the public lands were conferred upon the state,

"on the condition that the people of Kansas shall provide by an ordinance, irrevocable without the consent of the United States, that said state shall never interfere with the primary disposal of the soil within the same by the United States, or with any regulations congress may find necessary for securing the title in said soil to bona fide purchasers thereof."

These conditions were formally accepted by the state by an act approved January 20, 1862, which reads in part as follows:

"It is hereby ordained that this state shall never interfere with the...