Orr v. Ulyatt

• Citation: 43 P. 916,23 Nev. 134
• Decision Date: 02 March 1896
• Docket Number: 1,450.
• Parties: ORR v. ULYATT et al.
• Court: Supreme Court of Nevada

43 P. 916

23 Nev. 134

ORR v. ULYATT et al.

No. 1,450.

Supreme Court of Nevada

March 2, 1896

1. Rev St. U.S. § 2296, providing that no lands acquired under the homestead act "shall in any event become liable to the satisfaction of any debt contracted prior to the issuing of a pattent therefor," does not prohibit a voluntary incumbrance by mortgage.

2. Under Gen. St. § 3284, providing that a mortgage of real property shall not be deemed a conveyance, a mortgage is a mere security for a debt, and is not an alienation.

Appeal from district court, Washoe county; A. E. Cheney, Judge.

Suit by Thomas Orr against George C. Ulyatt and others to foreclose a mortgage. From a judgment exempting a homestead from the operation of the mortgage lien, and from an order denying a motion for a new trial, plaintiff appeals. Reversed.

R. M Clarke, for appellant.

T. E Haydon, for respondents.

BELKNAP J.

This is a suit of foreclosure. The mortgaged property consists in part of a homestead entered March 26, 1885, under the law of congress. The mortgage was made April 10, 1891, and before final proof. Patent was issued January 30, 1892. Defenses were interposed by answer, but the court, in its written findings, found in favor of appellant upon all issues, and ordered judgment in his favor except as to so much of the mortgaged premises as are embraced by the homestead claim. The property was originally mortgaged by respondents in the year 1883, and the present debt is a renewal of the former debt. These transactions do not influence the matter. The question is whether the homestead property is liable on this suit. Section 2296, Rev. St. U.S., provides "that 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 a patent therefor." This provision has frequently been a subject of judicial construction. Nycum v. McAllister, 33 Iowa, 374, was a suit to foreclose a mortgage given upon a homestead under the law of congress. The defense was that under the provisions of section 2296, above quoted, the mortgage could not be enforced. The court in that case said: "The question presented for our decision is whether a homestead taken under the act of congress may be conveyed by mortgage executed by the homestead settler to secure a debt contracted prior to the issuing of the patent for the land. ***. Does the provision of the act of congress just referred to render invalid a mortgage upon the homestead settler's interest, in case no patent has been issued to him? The provision is clearly intended for the protection of the settler. It is not a limit or restriction upon the right he acquires to the land. Neither does it operate as a disability forbidding the sale or transfer of his interest in the land. This view is certainly correct, in case the settler has done all the law requires him to do in order to obtain a patent, when he has a right to the patent, and it has not been withheld through his fault. In such a case his right to the land would be full and complete. Now, the provision in question is not a restriction upon his right--it is not a limit upon his right--to dispose of the land in a manner recognized by the law. The law recognizes his right to convey his land by mortgage. Such an instrument, when executed in a valid form upon his homestead must be enforced. The provision is intended as a shield for his protection, and is not a weapon for the destruction of any of his rights." Again, in Fuller v. Hunt, 48 Iowa, 163, the question was presented whether one who had entered a homestead claim could mortgage it prior to the time he was entitled to make final proof. It was claimed that under the provisions of section 2296, above quoted, the homestead was not liable for a mortgage made prior to the issuance of the patent. Said the court: "If the land is liable at all, it is by notice of the act by which the debtor undertook to create a special lien upon it, and we have to say that we think the debtor's act had that effect. Mere exemptions from execution do not prevent the debtor from creating such lien. Exemptions are provided merely for the debtor's protection. Such is the general rule, and such, it appears to us, is the intention of the homestead act. The only reason suggested why the claimant under the homestead act should not be allowed to mortgage his homestead is that it would be against public interest. But the fact that the act provides against alienation by the claimant, and does not provide against mortgaging, unless alienation...