Spies v. Newberg

• Decision Date: 27 March 1888
• Citation: 37 N.W. 417,71 Wis. 279
• Parties: SPIES v. NEWBERG ET AL.
• Court: Wisconsin Supreme Court

71 Wis. 279

37 N.W. 417

SPIES

v.NEWBERG ET AL.

Supreme Court of Wisconsin.

March 27, 1888.

Appeal from circuit court, La Crosse county; A. W. NEWMAN, Judge.

At some time prior to May 14, 1877, Hans C. Colstod had taken and made a homestead entry of the E. 1/2 of N. E. 1/4 of section 33, township 15 N., of range 5 W., the same then being the property of the United States, and May 14, 1877, caused a receipt for the payment of the requisite amount therefor to be recorded in the register's office of deeds; that on the same day Colstod sold and assigned to said John Peter Newberg his right or claim in and to said homestead entry, and executed to him a warranty deed of the same, which was recorded; that February 28, 1879, said Newberg borrowed $1,200 of Stephenson, to secure which, with interest, the said Newberg and wife executed and delivered to said Stephenson their mortgage on 273 acres of land, including said 80; that June 27, 1879, the said Newberg borrowed of the plaintiff $125, to secure which, with interest, the said Newberg and wife executed and delivered to the plaintiff their mortgage on the 273 acres; that January 17, 1880, the said Newberg borrowed of the plaintiff $100, to secure which, with interest, Newberg and wife executed and delivered to the plaintiff their mortgage on said 273 acres; that Newberg, being in default, the Stephenson mortgage was foreclosed, and judgment of foreclosure and sale entered thereon, June 3, 1881, upon which judgment there was due for principal, interest, and costs, July 24, 1882, $1,812.58, for the payment of which the whole 273 acres was on said last-mentioned day sold, and bid in by the plaintiff, who paid the amount thereof, and that she was compelled to do so to save her said two mortgages, upon which nothing had been paid; that the plaintiff thereupon received a duly-executed sheriff's deed on said foreclosure sale, and recorded the same; that the plaintiff thereby failed to get the legal title to said 80, for the reason that the title was in the United States; that the balance of the land was worth much less than the amount then due on the Stephenson mortgage; that since said sheriff's deed, the said Newberg took said lands to work on shares from the plaintiff; that the plaintiff had paid during that time $145.36 taxes on said lands; that January 28, 1886, the said Newberg made a United States homestead entry of said described 80, and December 15, 1886, commuted the same, proved his occupation thereof, and paid the United States government price of $100, and received the title thereof from the United States, subject to the revision of his proof by the land department. December 22, 1886, the plaintiff commenced this action to enjoin the defendants from disposing of or incumbering the 80, and to have the title thereof so acquired by Newberg adjudged to inure to the benefit of the plaintiff. The defendants answered, admitting most of the facts stated, but claiming the title free from said mortgages or any claim of the plaintiff. Upon the trial the court found, in effect, as conclusions of law upon the facts stated, that as to the 80, said several mortgages were void, being in contravention of the provisions and policy of the United States homestead law; that the title subsequently acquired by Newberg under said law did not inure to the benefit of the plaintiff; that the plaintiff had failed to establish a right to equitable relief, and therefore the action be dismissed. From the judgment entered thereon accordingly, the plaintiff brings this appeal.John J. Cole, for appellant.

Prentiss & Miller, for respondents.

CASSODAY, J., ( after stating the facts as above.)

Upon the facts stated the inferences are irresistible that Newberg has been in the possession of the 80 ever since he bought out Colstod and received the warranty deed of the same, May 14, 1877; that he claimed the same by virtue of such purchase and deed, and the prior homestead entry of Colstod, until he lost the same by the sheriff's sale and deed. There can be no question but what the several mortgages were given to create a lien upon whatever right, title, and interest Newberg had in the 80, as well as the other lands, and that the respective mortgagees advanced their moneys thereon in good faith, and with the expectation of thereby acquiring adequate security for the same. With the same good faith and expectation, and to save her own mortgages, the plaintiff manifestly advanced the requisite amount of money on her purchase at sheriff's sale, and subsequently in paying taxes on the land. Prior to 1886, there seems to have been no pretense but what the plaintiff had acquired whatever equitable right, title, and interest in the 80 Newberg had previously possessed. During that period of three and a half years, Newberg had remained in possession under and in subordination to such equitable right, title, and interest of the plaintiff. There can be no question but what Newberg made the entry of January 28, 1886, and the commutation of the same, December 15, 1886, for the purpose of cutting off such equities of the plaintiff, and converting the possession which he thus held under her into an adverse possession and hostile title. This was held to be legitimate by the trial court, on the theory that the mortgages were given in contravention of the provisions and policy of the United States homestead law.

1. While the title remains in the United States, it is undoubtedly true that “no lands acquired under the provisions of” that law can “in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor.” Such is the statute. Section 2296, Rev. St. U. S. 421. This court has held that prior to such issuance of a patent such lands were not liable to attachment, execution, or mechanic's lien. Gile v. Hallock, 33 Wis. 523;Paige v. Peters, 35 N. W. Rep. 328. In the case last cited it is said in the opinion, in effect, that the right of the occupant of such lands to mortgage his interest in the same does “not come within the prohibition of the federal statutes cited.” That assertion is not only sustained by the authorities there cited, but others. Nycum v. McAllister, 33 Iowa, 374;Fuller v. Hunt, 48 Iowa, 163;Kirkaldie v. Larrabee, 31 Cal. 456;Orr v. Stewart, 67 Cal. 275, 7 Pac. Rep. 693;Cheney v. White, 5 Neb. 261;Jones v. Yoakam,Id. 265. We are not aware of any...