185 P. 162 | Mont. | 1919
delivered the opinion of the court.
On July 25, 1913, Charles R. Wilbur made final proof upon 320 acres of land which he had theretofore entered under the Enlarged Homestead- Act. On July 30, 1913, the Bottineau County Bank recovered judgment against Wilbur in the district court of the twelfth judicial district in and for Hill county, and a certified copy of the transcript of the original docket was filed in Toole county, where the land above mentioned is located. In January, 1914, Wilbur received patent, and on April 15, 1914, sold and conveyed the land by warranty deed to the First State Bank of Shelby. In November, 1914, the Bottineau County Bank caused execution to be issued on its judgment, placed the same in the hands of the sheriff of Toole county, who levied upon the land and advertised it for 'sale. The First
To the complaint, which sets forth the history more in detail, the defendants interposed a demurrer, first, upon the ground that the court did not have jurisdiction of the subject matter of the action; and, second, upon the ground that the complaint did not state a cause of action. The court sustained the demurrer as to the second ground, indicating in its order that a 320-acre homestead acquired under the “Enlarged Homestead Act is liable for the debts of the homesteader contracted before patent issues. Plaintiff, declining to plead further, suffered a judgment of dismissal to be entered against it and appealed.
There is no merit in the first ground of the demurrer. The
This appeal presents the novel question: Is a 320-acre
Under the original Homestead Act of May 20, 1862, Chap. 75 (12 Stat. 392), as it has existed from the date of its enactment to the present time, the land acquired thereunder (160 acres) cannot “in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor.” (Sec. 2296, U. S. Rev. Stats. [U.'S. Comp. Stats., sec. 4551].) There cannot be a controversy over the purpose which the Congress had in enacting that statute. It was designed _o provide
During most of the period when the homesteader might secure 160 acres under the original Homestead Act, he might also secure 160 acres under the Pre-emption Act, and an additional 160 under the Timber Culture Act, making in all 480 acres practically of his own selection, and that, too, land for the most part-susceptible of successful cultivation without artificial irrigation. Under these favorable statutes the public domain of the Mississippi Valley and the humid regions of the Pacific Coast were settled. It is a part of the public history of our country that during the forty years succeeding the enactment of the original homestead law, the best of the public lands were entered upon and title thereto secured from the government, leaving the later homeseeker to make his selection only from lands in semi-arid regions and lands so rough and broken that but a comparatively small portion of entryabje units could be cultivated. In other words, it came to require more than 160 acres of the lands available to entry, to make a home upon which the entryman could reasonably expect to succeed. In the meantime the Preemption and Timber Culture Acts were repealed, leaving only the original homestead law under which public land might be acquired, and the area limited to 160 acres. These facts, greatly enlarged upon and emphasized in an extended message by the President, were presented to ■ the first session of the Sixtieth Congress, and bills looking to the enlargement of the area obtainable under the homestead laws were introduced. The history of those measures and subsequent bills having the same general purpose is too extensive to be recited here. It is sufficient to say that the outcome of the agitation was the Enlarged
The Act is entitled: “An Act to provide for Enlarged Homesteads.” It contains but six sections. Section 1 defines the lands subject to entry under the Act. Section 2 provides that a person applying to make entry shall furnish the affidavit required by section 2290 of the United States Revised Statutes, and in addition shall make affidavit that the land sought is of the character described in section 1. Section 3 provides for an entry additional to one already made at the time the Act went into effect, in order that the entryman might secure the full amount — 320 acres. Section 4 provides that in addition to the final proof required under section 2291, United States Revised Statutes, the entryman shall disclose that he has cultivated the required area. Section 5 declares that the provisions of this Act shall not be construed to prevent a qualified homesteader from making entry under the original homestead Act in any of the states named, but that a person who makes entry under the Act of 1909 shall not be entitled to make entry under the original Act. Section 6 relates only to the state of Utah. It will be seen at once that the Enlarged Homestead Act does not in terms change any of the provisions of the original Act. The determination of the principal question before us, therefore, depends upon the proper construction of the Enlarged Homestead Act with reference to the original Act.
Was it intended as an independent statute, or was it meant to become a part of the original Homestead Act as it existed at
In the absence of constitutional limitations, a statute may
If the Enlarged Homestead Act was intended as an
A supplemental Act is one designed to improve an existing
Our conclusion is that the Enlarged Homestead Act is merely supplementary tb the original homestead law, and is to be construed as a part of it. It follows that land acquired under it becomes subject to the provisions of section 2296 of the United States Revised Statutes (U. S. Comp. Stats., sec. 4551), and that the land in controversy in this action could not in any
Our attention has been called to but a single adjudication upon this subject. Judge Bourquin gave this same construction to the Enlarged Homestead Act. (In re Auge (D. C.), 238 Fed. 621.) It is said that the same conclusion was reached by the United States District Court for the District of North Dakota; but the opinion does not mention the fact that the homestead there involved was acquired under the Enlarged Homestead Act. (In re Cohn (D. C.), 171 Fed. 568.)
It is insisted by counsel for respondents that exemption from
Section 2296, United States Revised Statutes, is not, strictly speaking, an exemption statute. It was not enacted pursuant to the police powers of the government, but in virtue of the power conferred upon the Congress to dispose of the public lands. The nonliability declared by that section is one of the conditions attached to the grant as an additional inducement to secure settlement of the public domain. (Ritzville Hdw. Co. v. Bennington, 50 Wash. 111, 126 Am. St. Rep. 894, 96 Pac. 826.)
The judgment is reversed and the cause is remanded, with directions. to the district court to overrule the demurrer..
Reversed and remanded.