Ruddy v. Rossi

• Decision Date: 15 January 1916
• Citation: 28 Idaho 376,154 P. 977
• Parties: CHARLES F. RUDDY, Respondent, v. HERMAN J. ROSSI, Appellant
• Court: Idaho Supreme Court

154 P. 977

28 Idaho 376

CHARLES F. RUDDY, Respondent, v. HERMAN J. ROSSI, Appellant

Supreme Court of Idaho

January 15, 1916

HOMESTEAD LAND - EXEMPTION FROM LIABILITY FOR DEBTS - FINAL PROOF AND CERTIFICATE - PATENT - SEC. 2296, REV. STATS., UNITED STATES.

1. Under sec. 2296, Rev. Stats. U.S. (U. S. Comp. Stats. 1901 p. 1398), relating to homesteads, and providing that no lands acquired under such section shall become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor, land so acquired is not liable for a debt contracted prior to the making of final proof and receiving final certificate entitling the entryman to a patent.

[As to construction of federal statute exempting land acquired as homestead from liability for debt contracted prior to issue of patent, see note in Ann.Cas. 1912D, 282.]

2. Held, that, under section 2296, supra, where a debt was contracted after the issuance of a final certificate of entry to defendant, but prior to his obtaining a patent, the land might lawfully be taken in satisfaction of the debt, since the patent, when issued, relates back to the date of the final certificate.

APPEAL from the District Court of the First Judicial District for Shoshone County. Hon. William W. Woods, Judge.

Action to perpetually enjoin the sale of land to satisfy judgment liens upon execution. Judgment for plaintiff. Modified.

Judgment of the trial court affirmed for $ 931.87 and cause remanded, with direction. Costs awarded to appellant.

J. A Wayne and W. H. Hanson, for Appellant.

The right to a patent once vested is treated by the government when dealing with the public domain, as equivalent to a patent issued. (Budd v. Gallier, 50 Ore. 42, 89 P. 638; Starks v. Starrs, 6 Wall. (73 U.S. 402, 18 L.Ed. 925; Flanagan v. Forsythe, 6 Okla. 225, 50 P. 152, 155.)

And when the receiver's final receipt or certificate is issued to the entryman under the homestead statutes, such lands immediately become liable for the debts of the entryman contracted after the date of such final receipt. (Leonard v. Ross, 23 Kan. 292, Kansas Lumber Co. v. Jones, 32 Kan. 195, 4 P. 74; Struby-Estabrook Mercantile Co. v. Davis, 18 Colo. 93, 36 Am. St. 266, 31 P. 495; Weare v. Johnson, 20 Colo. 363, 38 P. 374; Johnson v. Borin, 7 Kan. App. 369, 54 P. 804; Shelby v. Ziegler, 22 Okla. 799, 98 P. 989; Hobb v. J. I. Case Threshing Machine Co., 39 Okla. 383, 135 P. 395.)

A. H. Featherstone and Chas. E. Miller, for Respondent.

The doctrine of "relation" as applied to government patents for land is never invoked except where necessary to give effect to the intent of the statute or to cut off intervening claimants. (24 Am. & Eng. Ency. of Law, 128, 275, 277; Demarest v. Wynkoop, 3 Johns. Ch. (N. Y.) 139, 146, 8 Am. Dec. 467; Barncord v. Kuhn, 36 Pa. 383; Stahl v. Lynn, 86 Wis. 75, 56 N.W. 188; K. C. Lumber Co. v. Moores, 212 F. 153, 129 C. C. A. 1; Johnston v. Jones, 1 Black (66 U.S. 210, 221, 17 L.Ed. 117, 120; Jackson v. Davenport, 20 Johns. (N. Y.), 537; Wood v. Ferguson's Lessee, 7 Ohio St. 288, 291; Gibson v. Chouteau, 13 Wall. (80 U.S.) 92, 20 L.Ed. 534; Lessieur v. Price, 12 How. (53 U.S.) 59, 74, 13 L.Ed. 893, 899; Wallowa Nat. Bank v. Riley, 29 Ore. 289, 54 Am. St. 794, 45 P. 766.)

Lands acquired under the federal homestead laws cannot in any event be subjected to the satisfaction of any debt contracted prior to the issuing of the patent therefor. (Seymour v. Sanders, 3 Dill, 437, F. Cas. No. 12,690; Brun v. Mann, 151 F. 145, 80 C. C. A. 513, 12 L. R. A., N. S., 154; In re Cohn, 171 F. 568, 570; In re Parmeter's Estate, 211 F. 757; Grames v. Consolidated Timber Co., 215 F. 785.)

This statute has been construed by the supreme courts of all of the public land states of the west, and with the exception of three, one of which is doubtful, they have unequivocally held that the statute means exactly what it says and that the date of limitation is the date of the patent. (In re Harris, 16 Ariz. 1, 140 P. 825; Gilkerson-Sloss Co. v. Forbes, 54 Ark. 148, 26 Am. St. 29, 15 S.W. 191; Barnard v. Boller, 105 Cal. 214, 38 P. 728; Klempp v. Northrop, 137 Cal. 414, 70 P. 284; Miller v. Little, 47 Cal. 348; Russell v. Lowth, 21 Minn. 167, 18 Am. Rep. 389; Dickerson v. Bridges, 147 Mo. 235, 48 S.W. 825; Brandhoefer v. Bain, 45 Neb. 781, 64 N.W. 213; Smith v. Schmitz, 10 Neb. 600, 7 N.W. 329; Leman v. Chipman, 82 Neb. 392, 117 N.W. 885; Faull v. Cooke, 19 Ore. 455, 20 Am. St. 836, 26 P. 662; Schultz v. Levy, 33 Ore. 373, 54 P. 184; Gould v. Tucker, 20 S.D. 226, 105 N.W. 624; Blair v. Mayer, 24 S.D. 563, 140 Am. St. 797, 124 N.W. 721; Van Doren v. Miller, 14 S.D. 264, 85 N.W. 187; Sprinkle v. West, 62 Wash. 587, Ann. Cas. 1912D, 281, 114 P. 430, 34 L. R. A., N. S., 404; Jean v. Dee, 5 Wash. 580, 32 P. 560; Gile v. Hallock, 33 Wis. 523.)

BUDGE, J. Morgan, J., concurs. SULLIVAN, C. J., Dissenting.

OPINION

BUDGE, J.

The respondent in this case filed a homestead entry on the northeast quarter of the northwest quarter, sec. 34, twp. 48 north, range 4 east, Boise Meridian, on August 6, 1903. Final proof was submitted by respondent in the local land office on October 4, 1909, and receiver's final receipt and certificate of entry acknowledging receipt of the purchase price of the land was issued November 12, 1909. The final patent to respondent for this land was not issued until August 26, 1912.

During the period between the date of the issuance of receiver's final receipt and the issuance of the patent itself, appellant advanced to respondent various sums of money. From the record it appears that there were also certain advances of moneys made to respondent prior to the issuance of the final receipt.

In September, 1912, appellant commenced suit in the district court of the first judicial district against respondent, to recover the amount due the former, which amount was subsequently split into two separate suits, one upon promissory notes given by respondent to appellant and the other upon an open account. On May 8, 1914, judgment by confession for the sum of $ 931.87 was entered in favor of appellant in the action on the promissory notes; and on May 12, 1914, a jury in the suit on the open account rendered a verdict in favor of appellant for $ 2,115.48, and costs amounting to $ 19.05.

At the commencement of both of these actions attachments were levied upon the property heretofore described, and thereafter, in the month of June, 1914, executions were issued upon both of these judgments and levy of the same was made upon the land in question. Thereupon respondent commenced this action in the district court for the purpose of removing the cloud of these judgments, attachments and executions from this land.

In his complaint respondent alleges that he obtained patent for this land on August 26, 1912, and ever since said date has held the title thereto. Appellant, by his answer, admits the issuance of the patent on the date mentioned, but denies that the same was issued by virtue of the compliance by respondent with the homestead laws of the United States, and denies that respondent now holds the title thereto. Respondent then avers the rendition of the two judgments heretofore mentioned, and this allegation is admitted by the answer, as is also the allegation of the complaint that attachments were levied in these two suits upon the land of respondent. Respondent then alleges that each and every item of indebtedness going to make up the two judgments in question was contracted by him prior to the date of the issuance of the patent to said land; and that said land is, by the provisions of sec. 2296, Rev. Stats. of the United States, exempt from liability for the satisfaction of said judgments.

Sec. 2296, supra, provides: "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 the patent therefor."

This action was submitted to the trial court on a stipulation of facts, upon which judgment was rendered in favor of respondent, from which judgment this appeal is prosecuted.

The only question decided by the trial court in this case was, Can land procured from the United States under the provisions of the homestead law be sold on execution for the payment of a debt contracted after final proof has been made, but before the issuance of the patent therefor? And this is the only question before us.

Respondent claims that the property was exempt from levy and sale by virtue of section 2296, supra, while appellant insists that the property is subject to levy and sale for debts contracted subsequent to the issuance of the final receipt, though prior to the issuance of the patent.

It is stipulated by counsel in paragraph 5 of their stipulation of facts that the notes on which the judgment of $ 931.87, including costs, was rendered, were all dated and the debts incurred prior to the date of the issuance of the receiver's receipt, to wit, prior to November 12, 1909. Counsel, by their own stipulation, have, therefore, eliminated from our consideration that judgment, by reason of the fact that it is conceded the indebtedness on which it was founded was incurred prior to the issuance of the final receipt. The trial court properly held that the judgment was not a cloud upon respondent's title to the land above described, and that the land was not subject to levy and sale under an execution thereon.

No indebtedness incurred prior to November 12, 1909, could become a lien against the land of respondent, having been contracted prior to the issuance of the final receipt. (Leonard v. Ross, 23 Kan. 292; Kansas Lumber Co. v. Jones, 32 Kan. 195, 4 P. 74.)

It is further stipulated by counsel that the items which make up...