222 P. 434 | Mont. | 1923
delivered the opinion of the court.
This action was brought by the plaintiff bank to foreclose two mortgages executed by Frank Durand and Arthur Durand, respectively, on lands embracing their respective homestead entries, situate in Granite county, given to secure the joint note of Frank Durand, Arthur Durand and Oscar Durand in the sum of $8,000. In their separate answers Arthur Durand and Frank Durand admitted the execution of the note and the mortgages, but each pleaded his discharge in bankruptcy as a bar to the action. Oscar Durand admitted the signing of the note, but likewise pleaded his discharge in bankruptcy. Frank and Arthur Durand affirmatively alleged that the debt created by the note and mortgage was contracted prior to the making of final proof upon their respective homesteads, and that the mortgages were void under the provisions of section 2296 of the United States Revised Statutes (U. S. Comp. Stats., sec. 4551). The district court rendered judgment foreclosing the mortgages of Frank and Arthur Durand, and absolved all three of the defendants from personal liability for any deficiency which a sale of the mortgaged property should fail to satisfy.
In an agreed statement the following facts were stipulated: That because of their discharge in bankruptcy no deficiency judgment could be lawfully entered against either one of the three defendants; that the lands mortgaged by Arthur Durand embraced his homestead; that he made final proof thereon
The only question argued by counsel necessary to a decision in this case is this: Can the lands covered by the mortgages of Frank and Arthur Durand be subjected to the payment of the note, and the mortgages foreclosed? This question has been decided adversely to counsel’s contention by the Land Department of the United States many times. The point was exhaustively discussed by Mr. Finney, First Assistant Secretary of the Interior, in 48 Land Dec., at page 583. He says: “All the decisions of the department since the incumbency of Secretary Teller have been to the effect that such mortgage or deed of trust is not an alienation within the scope
The facts in the Buddy Case, as stated in the opinion, were these: Ruddy made preliminary homestead entry of designated land within the state of Idaho, August 6, 1903, submitted final proof October 4, 1909, and obtained final certificate November 12, 1909, and patent August 26, 1912. In 1914 two judgments were obtained against him — the first upon indebtedness incurred prior to November 12, 1909; the second upon debts contracted subsequent to that date and prior to patent. Executions were issued and levied upon the homestead; and thereupon the proceeding under review was begun to declare the asserted liens invalid and a cloud upon the title. The Idaho court held the first judgment unenforceable against the land, since it represented indebtedness which had accrued prior to final entry. It further held the second judgment could be enforced, as it was based upon debts contracted after final entry, at which time the homesteader became legally en
This interpretation was given the section in First State Bank of Shelby v. Bottineau County Bank, 56 Mont. 363, 8 A. L. R. 631, 185 Pac. 162, and Mettler v. Rocky Mountain Security Co., 68 Mont. 406, 219 Pac. 243. The first ease was brought by the grantee of the entryman after receipt of patent, to restrain the judgment creditor and the sheriff from selling the homestead under a judgment for the recovery of debts due the judgment debtor before the issuance of patent. In the latter case, Mrs. Mettler brought the action to quiet title to a homestead of which she was the grantee after patent issued, and to secure an injunction restraining the defendant sheriff from issuing a deed to the holder of the certificate of sale under a judgment secured against the entryman for debts incurred prior to patent. “Section 2296 means,” says Mr. Justice Holloway, “that a creditor cannot by any possible means acquire an involuntary lien upon the land embraced in a homestead entry to secure satisfaction of a debt contracted before patent issues (Gilkerson-Sloss Co. v. Forbes, 54 Ark. 148, 26 Am. St. Rep. 29, 15 S. W. 191; Ash v. Eriksson, 115 Minn. 478, 132 N. W. 997); and the reason is that by the terms of the grant the Congress has placed the land beyond the reach of any legal process which might be issued for such purpose.” To put it in another way, the statute was intended to render the homestead immune from legal process in the enforcement of all involuntary liens created before the issuance of patent.
There is nothing in the language of the section evincing an intention to prohibit the entryman from creatng an equitable lien upon his homestead by his own voluntary, honest act. This view has been expressed in many decisions of state courts involving the right of the entryman to mortgage his homestead in advance of patent, as security for a bona fide debt, where he has not attempted to circumvent the purpose of Congress in preventing the acquisition of the public lands by means of
While it may be true that the decisions of the Land Depart- ment of the United States do not control the courts in the interpretation of the federal statutes, the practical administration of them adopted by its officers is entitled to respectful consideration. This annunciation was made in Montana Manganese Co. v. Ringeling, 65 Mont. 249, 211 Pac. 333. It has been repeated on numerous occasions by the United States supreme court. (Webster v. Luther, 163 U. S. 331, 41 L. Ed. 179, 16 Sup. Ct. Rep. 963; Brown v. United States, 113 U. S. 571, 28 L. Ed. 1079, 5 Sup. Ct. Rep. 648; United States v. Hammer, 221 U. S. 220, 55 L. Ed. 710, 31 Sup. Ct. Rep. 593; Logan v. Davis, 233 U. S. 613, 58 L. Ed. 1121, 34 Sup. Ct. Rep. 685; La Roque v. United States, 239 U. S. 62, 60 L. Ed. 147, 36 Sup. Ct. Rep. 22 [see, also, Rose’s U. S. Notes]; McLaren v. Fleischer, 256 U. S. 477, 65 L. Ed. 1175, 41 Sup. Ct. Rep. 577.) In the case first cited Mr. Justice Harlan, speaking for the court, uses this language: “The practical construction given to an Act of Congress, fairly susceptible of different constructions, by one of the executive departments of the government, is always entitled to the highest respect, * * * especially when important interests have grown up under the practice adopted. (Bate Refrigerating Co. v. Sulzberger, 157
In McLaren v. Fleischer, supra, the Act of May 14, 1880, Chapter 89, 21 Stat. 140 (U. S. Comp. Stats, §§4536-4538), being open to two constructions, the practical interpretation of the Land Department was recognized, the court saying: “In the practical administration of the Act,, the officers of the Land Department have adopted and given effect to the latter view. They adopted it before the present controversy arose, or was thought of, and, except for a departure soon reconsidered and corrected, they have adhered to and followed it ever since. Many outstanding titles are based upon it, and much can be said in support of it. If not the only reasonable construction of the Act, it is at least an admissible one. It therefore comes within the rule that the practical construction given to an Act of Congress, fairly susceptible of different constructions, by those charged with the duty of executing it, is entitled to great respect, and, if acted upon for a number of years, will not be disturbed, except for cogent reasons.”
Affirmed.
Case taken to supreme court of the United States on writ of error, February 27, 1924.