20 S.D. 226 | S.D. | 1905
Reference to 18 S. D. 281, 100 N. W. 427, will disclose that this appeal now pending on rehearing involves the legal right to subject respondent's undivided interest in a quarter section of land to the payment of a judgment entered against her on account of a promissory note which she and her subsequently deceased husband, James S. Gould, executed and delivered to appellant O. C. Tucker in the year 1893. James S. Gould was the timber culture claimant of the premises in controversy, who upon proof of a compliance with the governing statute obtained a final certificate on the 14th day of November, 1894, and on the 24th day of February, 1895, departed this life without receiving the patent, which in his name the United States issued four months later, and the same was delivered to his widow, Alina A. Gould, who now maintains that the premises described therein are not liable for the debt cantracted by herself and husband prior to the date of the final certificate.
It is settled beyond dispute that the heirs of a timber cuitare entry man upon public lands of the United States, who dies before completing the period of occupancy and receiving the patent, succeed to all his rights, and upon making the required proof take title as direct grantees and purchasers from the government, and not by inheritance. Aspey v. Barry, 13 S. D. 220, 83 N. W. 91. In case of Towner v. Rodegeb, 33 Wash. 153, 74 Pac. 50, the court concludes its discussion of the proposition as follows: “It therefore seems to be the policy of the law to guard homestead rights for the benefit of the entryman himself, and, in case of his death before patent, for the benefit of his heirs. Whatever rights survive the death of the homesteader belong to the heirs, and not to the estate of the deceased. The heirs do not succeed to such' rights by inheritance, but by virtue of the law, which merely grants to them
Now the only interest in government land that the United States can convey by patent under the timber culture act is an estate free from all involuntary liens and debts of the patentee contracted prior to the issuance of the final certificates, and if the en-tryman dies before receiving a patent, “the title to the land designated therein shall inure to and become vested in the heirs, de-visees, or assigns, of such deceased patentee as if the patent had issued to the deceased person during life.” Rev. St. U. S. § 2448 [U. S. Comp. St. 1901, p. 1512]. As James S. Gould died after making final proof of all the acts required by law, the title to the land described in the patent subsequently issued ves,ted in his heirs an estate as free from their debts as it would have been free from his debts had he lived to receive the patent; and section 2448, supra, construed with other provisions relating to the subject, is ample authority for the conclusion that such was the estate conveyed in this instance by the United States patent. When considered in its relation to other provisions of the act and practically applied to this
In Hall v. Russell, 101 U. S. 503, the court say: “There cannot be a grant unless there is a grantee, and consequently there cannot be a .present grant unless there is a present grantee. If, then, the law making the grant indicates a future grantee, and not a present one, the grant will take effect in the future, and not presently. In all the cases in which we' have given these words the effect of an immediate and present transfer, it will be found that the law has designated a grantee qualified to take, ■ according to the terms of the law, and actually in existence at the time.” Previously, when the case was under consideration, we recognized the universal doctrine that the legal title remained in the United States until the patent issued, but deemed it unnecessary to decide whether respondent's interest in the property was acquired under our statute, or as a beneficiary under the laws of the United States, and held that, in either event the property was exempt from execution sale for a debt contracted by respondent and her deceased husband prior to the issuance of the final receipt. Now, as the right of James S. Gould in the land at the time of his death was not an absolute fee, but only an equitable interest, which the issuance of the patent cast upon his heirs with the legal title, we now decide that they took an
Manifestly the nature of a government grant evidenced by patent is unaffected by the question whether the final proof was made by the entryman or by his surviving heirs, who, in either event, acquire, by the subsequent issuance of such patent and the process of subrogation, all his rights and immunities under the law. Concerning what respondent's rights might have been under the statute of succession, had the patent issued prior to the death of her husband, no expression is necessary, and the intimation with reference thereto contained in our former opinion is hereby recalled.
For the reasons given in this opinion, the judgment of the trial court is affirmed.