Weber v. Laidler

• Decision Date: 17 September 1901
• Citation: 66 P. 400,26 Wash. 144
• Court: Washington Supreme Court
• Parties: WEBER v. LAIDLER et al.

66 P. 400

26 Wash. 144

WEBER v. LAIDLER et al.

Supreme Court of Washington

September 17, 1901

Appeal from superior court, Klickitat county; A. L. Miller, Judge.

Suit by R. H. Weber against Walter R. Laidler and others to foreclose a mortgage. From a decree in favor of the plaintiff, the defendants Almon Baker and others appeal. Affirmed.

Winthrop B. Presby, for appellants.

Dufur &amp Menefee and N. B. Brooks, for respondent.

HADLEY J.

On the 16th day of February, 1892, Walter R. Laidler and wife executed and delivered to the Lombard Investment Company their mortgage upon certain real estate situated in Klickitat county. The mortgage was given to secure a loan of $300 and interest. At the same time another mortgage was given to secure the additional sum of $60 and interest, the latter being, by its terms, made junior to the former. Thereafter the said mortgages and the notes secured thereby were duly assigned to the respondent herein. Default having been made in payment of the loans secured as aforesaid, the respondent instituted this action to foreclose said mortgages. The appellants were made parties defendant in the action together with the makers of the notes and mortgages. The complaint alleges that the appellants claimed an interest in said real estate by reason of a certain deed made by said mortgagors to them, but that any rights appellants may have in the premises are subject to the lien of said mortgages. The appellants answered the complaint, and admitted the execution and delivery of the mortgages, but deny that said instruments ever constituted valid liens upon the land; and they allege affirmatively that at the time of making said instruments in the form of mortgages neither of said mortgagors had any title to said land, but that the entire title thereto, both legal and equitable, was then in the United States; that subsequently the mortgagor Walter R Laidler entered said lands as a homestead under the laws of the United States, and thereafter a patent therefor was issued to said Walter R. Laidler under said homestead laws; that subsequent to the making of final proof for said lands the said Walter R. Laidler, together with his wife, conveyed the same to appellants. The answer concludes with the demand that the court shall decree that said instruments in the form of mortgages do not constitute liens upon said lands. To the new matter alleged in said answer respondent demurred, and the demurrer was by the court sustained. Appellants elected to stand upon their answer, and declined to plead further, and thereupon a decree was entered foreclosing the mortgages, and declaring them to be liens upon the lands, in accordance with the complaint. The case is now before this court on appeal from said decree.

The only question presented by the record is, did the court err in sustaining the demurrer to the answer? The principle involved is, can one, before entering public lands, or before the patent issues therefor, execute a mortgage, which becomes a valid lien thereon if he subsequently acquires the title thereto? Appellants contend that such mortgages cannot be valid liens, by reason of the provision of section 2296 of the Revised Statutes of the United States. That section is as follows: '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.' The decisions are not uniform in their interpretation of the full meaning of the above statute. They invariably agree that lands cannot be made liable for a debt contracted before the issuance of a patent therefor when it is sought to subject the land to the payment of such debt by any unwilling or involuntary appropriation thereof,--as by way of execution or attachment; but we believe the decided weight of authority in those states where the public domain has been subject to disposal since the passage of the above statute is in favor of sustaining a mortgage upon such lands upon the principle that the act of the mortgagor is voluntary, and he is estopped to deny its validity. The principle is too well established to call for discussion that, ordinarily, if one conveys or mortgages land to which he has then no title, his after-acquired title will inure to the benefit of his grantee or mortgagee. The same rule must apply here, unless prevented by the statute mentioned, and also by the further provision in the statutes of the United States which prohibits alienation of the land pending the period preceding final proof. As far as we are advised, this precise question has not hitherto been before this court. Appellants refer us to Jean v. Dee, 5 Wash. 580, 32 P. 460, as being decisive of the point. But that case appears to have involved a proceeding in attachment, and a levy and sale under execution. The validity of a mortgage upon such lands is not there discussed. We have been referred to a few decisions which hold that such a mortgage cannot be sustained by reason of the federal statute. Notably among these is the decision of the supreme court of Kansas in Brewster v. Madden, 15 Kan. 249. In the case of Biddle v. Adams (Kan. App.) 46 P 986, the court says: 'The only question which remains in this case is whether the law applied by the district court was correct. If the question were a new one, we should be strongly inclined, in a case of this kind, to hold in favor of the plaintiff in error; but the supreme court of this state has settled the law fully in the case of Brewster v. Madden, 15 Kan. 249. In that case the facts were very similar to those in the one under discussion, but it was there held that a mortgage given while title to the land was still in the United States was void. It is urged by counsel for plaintiff in error that that case ought not to be followed, for the reason that since its decision a more equitable doctrine has been laid down by the secretary of the interior of the United States; but our supreme court has followed the case of Brewster v. Madden in Mellison v. Allen, 30 Kan. 382, 2 P. 97, and, until a contrary doctrine is announced, we feel bound by the decisions of that court.' It thus appears that the appellate courts of Kansas are not harmonious in their views upon this subject, and, if it were an original question in that state, a different rule might be adopted. The California supreme court has repeatedly held directly opposite to the doctrine of the Kansas court. Kirkaldie v. Larrabee, 31 Cal. 456, 89 Am. Dec. 205; Christy v. Dana, 34 Cal. 548; Id., 42 Cal. 174; Camp v. Grider, 62 Cal. 20; Orr v. Stewart, 67 Cal. 275, 7 P. 693. The doctrine of the California court has also been adopted in the following cases: Dickerson v. Bridges (Mo. Sup.) 48 S.W. 825; Wilcox v. John (Colo. Sup.) 40 P. 880, 52 Am. St. Rep. 246; Stark v. Duvall (Okl.) 54 P. 453; Norris v. Heald, 12 Mont. 282, 29 P. 1121, 33 Am. St. Rep. 604; Fuller v. Hunt, 48 Iowa, 163; Spiess v. Neuberg, 71 Wis. 279, 37 N.W. 417, 5 Am. St. Rep. 211; Jones v. Yoakam, 5 Neb. 265; Lang v. Morey (Minn.) 42 N.W. 88, 12 Am. St. Rep. 748. The above cases proceed upon the theory that the exemption provided by the statute is meant to be a protection to the settler against a sale of the land involuntarily under execution, but that it does not prevent him from borrowing money, and voluntarily creating a lien by way of mortgage to secure the same. They also hold that a mortgage is not an alienation within the meaning of the statute, for the reason that it is not the purpose of a mortgage to pass absolute title. It is to be presumed that it is always the purpose of the mortgagor to pay the debt secured by his mortgage, and thus prevent an absolute title from accruing to the mortgagee. It is held that the inhibition of the statute is to prevent such a conveyance as intends that the title when acquired from the United States shall become the absolute title of another person than the settler, and that a mortgage is not such a conveyance, since it is only a mere possibility that such a title may grow out of the mortgage by reason of the default of the mortgagor to pay the debt. Following are some of the expressions of the decisions upon this subject: Kirkaldie v. Larrabee, supra: 'The title will not pass merely in consequence of the enforcement of the payment of a debt by the...