45 Neb. 781 | Neb. | 1895
Adam Brandhoefer entered the west half of the southeast quarter of section 20, in township 11 north, of range 1 west, in York county, under the federal homestead law. A patent was issued to him in 1878. In 1885 Brandhoefer and wife conveyed the land to Leonidas A. Brandhoefer, and in 1886 Leonidas Brandhoefer conveyed it to Eliza Brandhoefer, the wife of Adam. In 1891 Eliza Brandhoefer died, and on February 29, 1892, the county court of York county, on application of Adam Brandhoefer, set aside the land in question as the homestead of the husband, the county court apparently acting under the provisions of chapter 57 of the Session Laws of 1889, which has since
Among the questions discussed are several relating to the force and effect of the order of the probate court setting apart to the plaintiff the land in question as his homestead, it being contended on the one hand that the act of 1889 being unconstitutional, these proceedings were void, and, on the other hand, that the declaration of the uneoustitutionality of that act did not affect the validity of any proceedings had thereunder, or if it did, that chapter 32 of the Session Laws of 1895, which was intended as a curative act, validated such proceedings. None of these questions do we consider properly involved in a determination of the case. Prior to the passage of the act of 1889 it had been determined that the county court had jurisdiction to assign dower, and, therefore, curtesy, from the lands of a decedent, and also to set aside the homestead of the surviving husband or wife. (Guthman v. Guthnan, 18 Neb., 98.) Therefore the jurisdiction of a county court to assign an estate by curtesy or a homestead did not depend upon the act of 1889, and irrespective of that act, the county court had jurisdiction of the proceedings which led to the setting aside to Brandhoefer of the land in question as his homestead. This being so, the action of the court in setting aside the homestead in pursuance of the act of 1889 affected only the
This land was entered by the plaintiff as a homestead under the federal law, and the debt upon which the judgment was rendered was one created before the patent was issued. Section 2296, Revised Statutes, U. S., provides: “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 validity of this act of congress has been determined beyond question, and we refer to one case on the subject merely for the purpose of calling attention to the reason of the act. In Seymour v. Sanders, 3 Dill. [U. S.], 437, it is said that congress has plenary power over the disposition of public lands to dispose of them at such time, in such manner, and for such purposes as in its judgment it may deem best, and that the object of section 2296 is to benefit the poor man who is unable to pay for the land at once, and receive his title without condition, congress conceiving that the creditor in such cases has no equity to subject to the payment of his debt lands which had been given to the debtor by the bounty of the government. The state courts have uniformly given effect to the provision by holding that judgments rendered for debts contracted prior to the
Recurring to the statute its language is of the broadest character: Lands acquired under the homestead act shall not “in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor.” If we should hold that when the patentee has conveyed the land to another, and then re-acquires it, it then becomes subject to liability for debts created prior to issuing of the patent, we should hold that in one event the exemption should not apply, thus, as we believe, en-grafting an exception upon a statute couched in universal terms. Furthermore, as will be seen by an examination of the cases already cited, the courts have not regarded this, act merely as one of exemption, simply.staying the hands of the officers so long as the land is retained as a homestead, but, on the other hand, they have always treated it, not as an exemption, strictly speaking, but as a reservation or condition in the grant itself, whereby, acting under its sovereign authority in the disposal of its public land, the federal government has refrained from conveying the 1 ind in such a manner as to subject it to the payment of this particular class of debts. No lien for such a debt ever attached to the land during the' patentees’ original tenure, or while it remained in his grantees, and we can perceive
Judgment affirmed.