23 Kan. 292 | Kan. | 1880
The opinion of the court was delivered by
The main question involved in this case is, whether a, certain piece of land, owned by A. D. Ross, was exempt from a certain execution held by S. D. Leonard, sheriff of Harvey county, Kansas. Ross, who was plaintiff below, claims that it is so exempt under section 4 of the act of congress which enables actual settlers to secure homesteads on the public domain. (12 U. S. Stat. at Large, p. 393; U. S. Rev. Stat., p. 423, § 2296.) Said section reads as follows:
“ No lands acquired under the provisions of this act shall in any event become liable to the satisfaction of any debt or debts contracted prior to the issuing of the patent therefor.”
The facts necessary for a correct understanding of said question as presented in this case are as follows:
1. On May 3, 1873, Ross entered said.land under said homestead act of congress.
2. On October 25, 1873, Ross became surety on the official bond of G. D. Monger as treasurer of said Harvey county.
4. At some time or times “between November 5, 1872, and October 12, 1874,” Monger and his sureties became liable on said official bond for breaches thereof designated as “defaults, deficits and conversions of money.”
5. On December 15, 1874, Ross’s patent for his land was issued to him.
6. On April 24, 1875, an action was brought by the commissioners of Harvey county against Monger and his sureties for said breaches of said official bond.
7. On December 27, 1876, a judgment was rendered against Monger and his sureties (including Ross) for said breaches of said bond, in the sum of $1,054.83.
8. Whereupon an execution was issued and levied upon said land by said sheriff to satisfy said judgment.
The principal questions involved in the main question are as follows:
1. Was the claim of Harvey county against Monger and his sureties at any time a “ debt” within the meaning of said homestead act, and if so, when did it become such debt?
2. When did said land become subject to executions for debts ?
The defendant in error Ross claims that the claim of the county commissioners of Harvey county against Monger and his sureties was a debt, and that it accrued when he (Ross) signed said official bond. Now, for the purposes of this case, we shall assume that said claim of the county commissioners of Harvey county was a debt, (though with our view of the other questions involved in the case, it makes no difference whether it was a debt, or some legal claim for damages.) But we cannot give our assent to the doctrine, that such debt accrued when said bond was executed. The claim evidently did not have any existence at that time, and probably did not have any existence for several months afterward. A penal bond (such as a county treasurer’s official bond is) does not
The judgment of the court below will be reversed, and cause remanded for further proceedings.