Sackett v. McCaffrey

• Decision Date: 23 May 1904
• Docket Number: 957.
• Parties: SACKETT v. MCCAFFREY et al.
• Court: U.S. Court of Appeals — Ninth Circuit

131 F. 219

SACKETT v. MCCAFFREY et al.

No. 957.

United States Court of Appeals, Ninth Circuit.

May 23, 1904

The plaintiff in error, a citizen of New York, brought this action in ejectment against the defendants, citizens of Montana, to recover possession of lot 11 in block 89 in the city of Anaconda, Mont., alleged to be of the value of $2,500 and more. The plaintiff in error bases her claim of title to the premises in controversy upon a sheriff's deed dated May 19, 1902, issued pursuant to an execution sale upon a deficiency judgment against the defendants in error. The defendants in error deny the right of the plaintiff in error to the premises, and claim title to the property under a declaration of homestead dated November 24, 1900, and made by Mary McCaffrey; her husband, Joseph McCaffrey, not having made such selection. The plaintiff in error, in reply to this defense, alleges that the declaration of homestead filed by Mary McCaffrey was wholly void and of no effect by reason of the omission to state an estimate of the actual cash value of the premises therein described, and denies that the premises in question could have been a homestead, because the defendants in error at the time of filing the pretended declaration of homestead, and long prior thereto, did not reside on the entire premises described, a portion of the lot in question being occupied by and rented to tenants of the defendants in error, and entirely distinct from the premises used by defendants in error as a home. Upon the trial, for the purpose of showing that the premises in controversy were at the date of their sale under execution exempt from execution, the defendants in error offered in evidence the homestead declaration of Mary McCaffrey, dated November 24 1900, covering the entire premises in controversy to which plaintiff in error objected on the grounds (1) that the instrument was not stamped as required by the laws of the United States in force at the date of its execution: (2) that the notarial certificate of acknowledgement to said instrument was not stamped as required by the laws of the United States at the date of its execution; and (3) that the filing of record of the same in its unstamped condition was in violation of said laws, and the record thereof was void and of no effect as against the rights of the plaintiff in error. The objection was overruled, and the declaration of homestead admitted in evidence. The jury returned a verdict in favor of the defendants in error, and a judgment was entered thereon. Upon this judgment a writ of error was obtained by the plaintiff in error.

E. B Howell and Charles E. Sackett, for plaintiff in error.

William B. Rodgers, for defendants in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge (after stating the facts as above).

The specification of error mainly relied upon is the admission in evidence of the homestead declaration of Mary McCaffrey over the objection of the plaintiff in error that it was an instrument required by law to be stamped, under the provisions of the act of June 13, 1898, and, being in an unstamped condition, was not entitled to be recorded or admitted in evidence. The act of Congress approved June 13 1898, entitled 'An act to provide ways and means to meet war expenditures, and for other purposes' (30 Stat. 448 458, c. 448 (U.S.Comp.St. 1901, pp. 2284, 2300)), provides in Schedule A for the prepayment of an internal revenue tax by means of stamps, denoting the tax on certain documents to which the stamps are to be affixed. Among other documents mentioned in this schedule as subject to a stamp tax is that of a 'certificate of any description required by law, not otherwise specified in this act, ten cents. ' Within this very broad language the plaintiff in error claims that the homestead declaration is itself a certificate subject to the stamp tax; but as this claim is not seriously urged it need not be considered, except in connection with the notarial certificate of acknowledgement, which the law of Montana requires to be indorsed upon or attached to the instrument before it can be recorded. The declaration of a homestead covering the property in controversy was executed by Mary McCaffrey November 24, 1900, and on the same day its execution was acknowledged by her before a notary public, and his certificate to that effect was indorsed upon the instrument, but no internal revenue stamp was affixed to the declaration of homestead or the accompanying notarial certificate of acknowledgement, and because of the absence of the stamp it is urged by the plaintiff in error that the court erred in admitting the document in evidence.

Section 14 of the act of June 13, 1898 (30 Stat. 455 (U.S.Comp.St. 1901, p. 2296)), provides:

'That hereafter no instrument, paper, or document required by law to be stamped, which has been signed or issued without being duly stamped or with a deficient stamp, nor any copy thereof, shall be recorded or admitted or used as evidence in any court until a legal stamp or stamps denoting the amount of tax shall have been affixed thereto as prescribed by law.'

In our opinion, the certificate of acknowledgement was subject to the stamp tax under this statute, and should have been stamped before being admitted in evidence.

It is objected that the copy of the declaration of homestead, as printed in the record, does not show that either that instrument of the certificate of acknowledgement indorsed thereon by the notary public was not stamped as required by the laws of the United States. Under rule 14, subd. 4, of ...