Worthington v. Tipton
| Decision Date | 24 April 1918 |
| Docket Number | No. 2113.,2113. |
| Citation | 172 P. 1048,24 N.M. 89 |
| Parties | WORTHINGTONv.TIPTON et al. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
A person having an inchoate interest in public lands may mortgage the same, even though the statute under which he claims prohibits an “alienation” of his rights, for such a prohibition refers only to attempted conveyances of title and not to mortgages.
[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Alienation.]
Additional Syllabus by Editorial Staff.
In a suit to foreclose a mortgage, wherein the answers raised only the question that it was executed and delivered prior to final proof by the mortgagor and to the deliver of a patent to her, demurrers on the ground that the answer did not state facts sufficient to constitute any defense were sufficient as against the objection that they did not sufficiently specify the objection to the answers.
Appeal from District Court, Roosevelt County; Richardson, Judge.
Action by H. G. Worthington against Sarah Ann Tipton and others. Demurrers to answer overruled, judgment rendered for defendants upon the pleadings, and plaintiff appeals. Reversed, and cause remanded, with instructions.
This action was brought to foreclose a mortgage on certain land situate in the county of Roosevelt. The complaint was in the usual form, and a copy of the mortgage sought to be foreclosed was attached and made a part thereof. The defendants filed separate answers to the complaint, in which they admit the execution and delivery of the mortgage, but seek to avoid its legal effect on the ground that the mortgage was executed on the land described therein by Sarah Ann Tipton before the receiver's final receipt had issued to her, and before she had offered her final proof for patent. Demurrers were filed by the appellant, attacking the defenses set forth in each of said answers on the ground that they did not state facts sufficient to constitute any defense to the suit. The court overruled such demurrers, and appellant, electing to stand thereon and refusing to plead further, a motion for judgment on the pleadings was sustained, and judgment rendered against the appellant, from which this appeal was taken.
In a suit to foreclose a mortgage, wherein the answers raised only the question that it was executed and delivered prior to final proof by the mortgagor and to the delivery of a patent to her, demurrers on the ground that the answer did not state facts sufficient to constitute any defense were sufficient as against the objection that they did not sufficiently specify the objection to the answers.
M. C. Spicer, of Socorro, for appellant.
W. A. Gillenwater and Fred E. Dennis, both of Clovis, for appellees.
It appears from the pleadings that the mortgage which appellant sought to foreclose in the district court was given upon a homestead entry. The mortgage was executed prior to the date of the final receiver's receipt and before final proof for patent to said land. As pointed out by the trial court in a memorandum opinion, the question raised, in a general way, is whether or not a mortgage, given to secure moneys loaned for general purposes on a homestead entry prior to final proof or final entry of the same, is good and valid as against the land described in said homestead entry. The trial court was of the opinion that a mortgage may be given prior to entry, and after the filing upon a homestead to secure money to acquire the title in event of commutation or to make permanent improvements in compliance with the law or acquiring a water right for its cultivation and development, but that there is nothing in the record to indicate that the money borrowed and secured on this homestead entry prior to the issuance of final receipt was for such purposes, but was a general loan having no particular purpose connected with the acquisition or improvement of the homestead, and that it would be against public policy and contrary to the federal statute to permit a mortgage generally on a homestead entry which might ultimately affect the title. The court said, referring to the federal statute, that the language “after entry” meant, in his opinion, after final proof.
The four assignments of error urged by appellant raise but one question, i. e., the right of a homesteader, after entry on government land, to subject his interests therein to a mortgage executed by him after entry and before final proof is made.
[2] Before discussing this question it is necessary to refer to a point made by appellees, which is that the demurrers...
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