Russell v. Lowth

• Decision Date: 17 December 1874
• Citation: 21 Minn. 167
• Court: Minnesota Supreme Court
• Parties: A. E. RUSSELL <I>vs.</I> MICHAEL F. LOWTH & another.

Page 167

21 Minn. 167

A. E. RUSSELLvs.

MICHAEL F. LOWTH & another.

Supreme Court of Minnesota.

December 17, 1874.

The plaintiff in his complaint sets forth the facts stated in the following opinion, and further alleges the recovery of a judgment by defendants against John Merkle, August 20, 1872, in a suit on a promissory note made by him March 25, 1862; the docketing of such judgment in Faribault county, where the land involved in this action is situate; the issuing of an execution on the judgment; a levy on the land in question, and a sale thereof, on the execution, to defendants, who received the usual certificate of sale. He further alleges that the land was entered by Merkle as a homestead under the laws of the United States, and, as such homestead, was exempt from levy and sale on execution for any debts contracted prior to July 29, 1869, the date of the issuing of the patent; that the levy, sale and certificate of sale, though valid and regular on the face of the proceedings, are wholly void, and are a cloud on his title; and he prays judgment that the sale be set aside and that the certificate and the record thereof be cancelled. A general

demurrer to the complaint was overruled by the district court for Faribault county, Waite, J., presiding, and the defendants appealed.

W. L. Coon, for appellants.

Benj. G. Reynolds, for respondent.

McMILLAN, C. J.

The land involved in this action was entered by one John Merkle, on or about July 15, 1864, under the act of congress, entitled "An act to secure Homesteads to actual settlers on the Public Domain," approved May 20, 1862, and was conveyed to him by the United States, under and in pursuance of said act, on July 29, 1869. The indebtedness of Merkle to the defendants for which they obtained the judgment sought to be enforced against the land, was contracted by said Merkle March 25, 1869, prior to the issuing of the patent. On December 21, 1871, John Merkle and wife by warranty deed conveyed the premises upon which the levy was made, to Stephen Merkle, who with his wife conveyed the same by warranty deed to the plaintiff, February 15, 1873. Neither of these deeds was recorded till after the judgment in favor of the defendants against John Merkle was docketed in the county in which the land lies. Under our statute, the conveyances were void as against the judgment, unless the land was exempt from levy and sale under the act of congress. Gen. Stat. ch. 40, § 21. Section 4 of the act of congress above cited is as follows: "And be it further enacted that no lands acquired under the provisions of this act shall in any event become liable to the satisfaction of any debt or debts contracted prior to the issuing of the patent therefor." 12 U. S. Stat. at Large, ch. 75, p. 393; 2 Brightly's Dig., Lands, § 53, p. 397.

The terms of this section clearly exempt all lands patented under the act of which it is a part, from liability for any of the debts of the patentee contracted prior to the issuing of the patent, whether the lands are still held by the patentee, or a bona fide purchaser deriving title from him. But it is claimed by the appellants that this provision of the act of congress is unconstitutional and void; that congress can make no provision which will withdraw or exempt the lands from the operation of state laws regulating the collection of debts, after the title has fully passed from the government. The first question for our determination is the constitutional validity of this provision of the act.

The second paragraph of section three, article four, of the constitution of the United States reads as follows: "The congress shall have power to dispose of and make all needful rules and regulations respecting the territory or 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." The power of disposition contained in this section is delegated by the people of the United States to the congress of the United States. Whatever power is conferred upon the national government, or either branch of it, by the constitution, is accompanied with the element of political sovereignty. The power of disposition conferred by the constitution in the paragraph above quoted, is unqualified, save that it shall not "prejudice any claim of the United States or of any particular state." Whatever may be the effect of this qualification, it clearly does not relate to the power of the state which is claimed to be affected...