Williams v. Sherman

• Decision Date: 29 December 1922
• Citation: 36 Idaho 494,212 P. 971
• Parties: F. D. WILLIAMS, as Receiver of the STATE SAVINGS BANK OF BUTTE, MONTANA, a Corporation, Plaintiff, v. E. H. SHERMAN and SINA E. SHERMAN, Appellants and S. M. NIXON, Respondent,
• Court: Idaho Supreme Court

212 P. 971

36 Idaho 494

F. D. WILLIAMS, as Receiver of the STATE SAVINGS BANK OF BUTTE, MONTANA, a Corporation, Plaintiff, and S. M. NIXON, Respondent, v. E. H. SHERMAN and SINA E. SHERMAN, Appellants

Supreme Court of Idaho

December 29, 1922

TITLE TO PUBLIC LANDS - CANNOT BE CLOUDED WITHOUT CONSENT OF GOVERNMENT-EFFECT OF ATTEMPTED CONVEYANCE-WRIT OF ASSISTANCE-WHEN IT SHOULD BE DENIED.

1. The United States cannot be divested of title to its public lands, or have the same clouded in any manner to interfere with its future disposition of the same, without its consent manifested in some manner prescribed by Congress. It is an invariable attribute of sovereignty that title to property of the sovereign cannot be acquired without its consent or against its will.

2. Where a grantor includes a part of the public land of the United States in a conveyance intended to be a mortgage, and such mortgage is thereafter foreclosed, such government land being included in the order of sale, all proceedings thereunder, in so far as they relate to public lands, are void ab initio, and neither title nor color of title is obtained by the purchaser. The judgment being void it is subject to collateral attack.

3. A writ of assistance issued upon the application of a party who claims title and the right of possession to public lands under a sheriff's deed will be quashed and the proceedings dismissed when it is shown that the party being dispossessed is occupying such premises under a valid homestead entry, which has been allowed by the government.

4. A conveyance, in form a deed, but intended to be a mortgage which either purposely or inadvertently includes public lands of the United States, is void in so far as it includes public lands, and does not cast a cloud upon the title of such lands, either against the government or against anyone having possession or deraigning title through the government.

APPEAL from the District Court of the Ninth Judicial District, for Fremont County. Hon. James G. Gwinn, Judge.

Action to foreclose a mortgage. From an order granting a writ of assistance, defendants E. H. Sherman and Sina E. Sherman appeal. Reversed, with instructions to quash the writ and dismiss the proceeding.

Cause reversed, with directions. Costs awarded to appellants.

Miller & Ricks, for Appellants.

An unperfected government homestead is the property of the United States and a court is powerless to grant a writ of assistance and dispossess the entryman prior to the issuance of patent thereon. (U. S. Rev. Stats., sec. 2296; Williams v. Sherman, 35 Idaho 169, 205 P. 259; Ruddy v. Rossi, 248 U.S. 104, 8 A. L. R. 843, 39 S.Ct. 46, 63 L.Ed 148.)

To entitle the plaintiff to a writ of assistance demanded, the plaintiff should show a valid judgment. The findings should be supported by the pleadings, and the judgment must be supported by the pleadings and the findings, and the judgment must support the order of sale and proceedings thereunder. (Vermont Loan & Trust Co. v. McGregor, 5 Idaho 510, 51 P. 104; Vanmeter v. Borden, 25 N.J. Eq. 414; Mills v. Smiley, 9 Idaho 317, 76 P. 783.)

F. L. Soule, for Respondent, files no brief.

LEE, J., WILLIAM A. LEE, J. Budge, C. J., and Dunn, J., concur.

OPINION

LEE, J.

This is an appeal from an order granting a writ of assistance which directed the sheriff of Fremont county to remove appellants E. H. Sherman and Sina E. Sherman, husband and wife, who occupied the NE. 1/4 of sec. 13, T. 15 N., R. 42 E., B. M., under a government homestead entry, from said premises, and deliver possession of the same to respondent Nixon. Appellants have endeavored to have this court review the right of the lower court to award respondent Nixon this writ upon two former hearings, the first in Williams v. Sherman, 34 Idaho 63, 199 P. 646, and again in Williams v. Sherman, 35 Idaho 169, 21 A. L. R. 353, 205 P. 259, and reference is made to those cases for a more complete statement of the facts and circumstances which give rise to the question presented by this appeal.

In March, 1906, appellant E. H. Sherman and Grace A. Sherman, then his wife, executed an instrument purporting to convey to the State Savings Bank of Butte, Montana, approximately 1,500 acres of land situate in Fremont county, Idaho. The description in said instrument included the premises above described, which were at that time a part of the unsurveyed public domain of the United States. Appellants claim that the insertion in that instrument of a description of this land was by inadvertence and a mistake on the part of the scrivener, but as we view the law applicable to this case, that fact, if true, is not material.

In 1914 the lands embraced in said homestead entry were first surveyed by the government, and the plat was filed in the Surveyor-general's office in May, 1915. On September 29th following, appellant E. H. Sherman, who had subsequent to the execution of the instrument of conveyance in 1906 married appellant Sina E. Sherman, made a government homestead entry upon said land at the Blackfoot United States Land Office, and said appellants have continued to occupy said premises as a government homestead ever since said entry, except during such periods as they have been dispossessed by the several writs of assistance issued out of the ninth judicial district court, the latest of these alleged writs being issued by the judge of said court July 31st of this year, the validity of which writ is before us on this appeal.

Respondent Nixon claims title and the right of possession of said premises comprising appellants' homestead entry by virtue of the instrument of conveyance executed by appellant E. H. Sherman and Grace A. Sherman, then his wife, in 1906, and the subsequent sale under an alleged decree of foreclosure entered in an action in said court, wherein F. D. Williams, as receiver of the State Savings Bank of Butte, Montana, was plaintiff, and appellant E. H. Sherman and Grace A. Sherman, then his wife, and also Sina E. Sherman, his present wife, were named as defendants, with others, in which action said instrument was held to be a mortgage, and was foreclosed for an indebtedness against the defendant Sherman. An order of sale was issued upon said decree, and all the lands described in said instrument executed in 1906, including appellants' homestead entry, were pretended to be sold, and not having been redeemed, a sheriff's deed for the same was thereafter issued to respondent Nixon. Respondent lays stress on the fact that personal service was had upon all of the Shermans in that foreclosure proceeding, and that they each severally failed to make an appearance, and that judgment was entered against them by default after such service.

Appellants herein contend that all of said proceedings, in so far as it is attempted to affect the title to the premises in question, beginning with the inclusion of said property in said instrument of 1906 in which Sherman and his first wife were named as grantors, together with the subsequent foreclosure sale and issuance of a sheriff's deed to the same, were void ab initio, because said lands at the time they were included in said instrument in 1906 were a part of the unsurveyed public domain of the United States, and ever since have continued so to be, subject only to the inchoate rights granted appellant Sherman and his present wife Sina E. Sherman, by virtue of their homestead entry thereon in September, 1915. In support of the facts upon which they base their claim, they now submit the judgment-roll in said foreclosure proceedings, which appears to establish the facts regarding the conveyance and subsequent proceedings by which the premises were pretended to be conveyed by sheriff's deed to respondent Nixon. They also submit a certified copy from the Surveyor-general's office of the plat of said township 15 north, range 42 east, Boise meridian, which shows that it was surveyed and said plat, "strictly conformable to the field-notes of the survey thereof on file in this office, which have been examined and approved," was filed in the Surveyor-general's office in Boise, Idaho, on June 11, 1914. They offer the certificate of the Register of the United States Land Office at Blackfoot that said plat was officially filed in said office on the 20th day of May, 1915, and that Edward H. Sherman made homestead entry No. 021099 on September 29, 1915, on said NE. 1/4 of Sec. 13, T. 15 N., R. 42 E., B. M. By a supplementary certificate of July 29, 1922, said Register certifies that said homestead entry was made on May 25, 1915, was allowed by the Commissioner of the General Land Office on September 27, 1915, by the local land office on September 28, 1915, and thereby became a valid entry of record; that on July 14, 1919, one Earl L. Nixon filed an application to contest said entry, and after a hearing before the Register and Receiver of said Blackfoot Land Office, an adverse decision to said contest was rendered; that an appeal was taken to the Commissioner of the General Land Office, and that after a decision against contestant by the General Land Office, an appeal was taken to the Secretary of the Interior, who affirmed the decision of the local land office and dismissed said contest on April 28, 1922; that on October 5, 1920, said Edward H. Sherman submitted final proofs in support of his said entry, and on June 5, 1922, final certificate was issued; and that the records of said Land Office show no adverse claim to the land above mentioned.

Subd. 9 of C. S., sec. 7952, art. 3 of Ch. 292, which designates how public writings may be proven, provides that documents in the departments of the United States government may be proved by the certificate of the legal custodian thereof. We think this statute makes...