18 S.D. 281 | S.D. | 1904
This is an action by the plaintiff to enjoin the defendant Tucker, a judgment creditor, and E. B. King as sheriff, from selling certain real estate in Spink county claimed by the plaintiff. The case was tried to the court without a jury, and, the findings and judgment being in favor of the plaintiff, the defendants have appealed.
The findings of the court are based on an agreed statement of facts, and may be briefly stated as follows: That plaintiff is the widow of one James S. Gould, deceased, who departed this life on the 24th day of February, 1895, leaving surviving him the plaintiff and seven minor children; that. the said James S. Gould, deceased, in his lifetime, filed on a quarter section of land (being the land a part of which is in controversy) under the timber-culture laws of the United States, and that on or about the 14th day of November, 1894, the said Gould made his final proof, and received a duplicate receiver’s
From these findings the court concludes, as matters of law, that the legal title to the said quarter section remained in the United States government until the issuance of the patent on the 4th day of June, 1895; that upon the death of the said
■ It is contended by the appellants that the title to the real estate in controversy was vested in James S. Gould at the time of his death, as Gould had completed his final proof and received his final receipt therefor in November, 1894, some months prior to his death, and that as the patent was issued in his name and received several months after his death, the title to the said land vested in his estate. It is further contended by the appellants that, as Gould had completed his final proofs, the land became subject to the debts contracted by him and Ihe plaintiff prior to the issuance of the said final receipt. It is contended by the respondent that the legal title to the property in controversy remained in the United States until a patent was issued therefor, and that, the patent not having been issued during the lifetime of the deceased, the estate, as
We are inclined to take the view that the legal title remained in the United States until the patent was issued, and that the said Gould, in his lifetime, only had the equitable title to the property. Vantongeren v. Heffernan, 5 Dak. 180, 88 N. W. 52.
Butin the view we take of the case, it is not necessary to decide at this time whether the plaintiff acquired a one-third interest in the property under the law of succession, or as a beneficiary under the laws of the United States, for in either case we are of the opinion the property was exempt from sale under execution for a debt contracted by the deceased and the plaintiff'prior to the issuance of the final, receipt. By chapter 561 of the Laws of the United States for 1891, relating to timber-culture claims, it is provided that no land acquired under the provisions of the act shall in any event become liable to the satisfaction of any debt or debts contracted prior to the issuance of the receiver’s receipt therefor. Act March 3, 1891, c. 561, 26 Stat. 1095 |UJ. S. Comp. St. 1901, p. 1535], This • proviso is substantially a re-enactment of section 2468 of the Revised Statutes of the United States of 1878, and was therefore in force when Gould’s right to the timber-culture claim was acquired. In the disposition of the public lands, the government may impose such conditions as it deems proper. It seems to have been for many years the policy of the government to secure the settlement of the public lands, and, as an encouragement to such settlement, it has made provisions exempting
The judgment and order denying a new trial are affirmed.