The opinion of the court was delivered by
Valentine, J.:
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.
*299•3. On May 19, 1874, he made his final proof, and paid his money for his land under the 8th section of said homestead act, thus commuting residence by the payment of money.
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 *300of itself create a debt. It is not the “acknowledgment of an existing indebtedness,” (as was a recognizance in its original form,) as is claimed by the defendant in error; but it is simply a penal bond, to be void if no breach of the condition occurs, and, in effect, to cover only actual damages where some breach of the condition does occur. In our opinion, then, no debt accrued against Monger or his sureties, until some breach of the official bond occurred. And an argument might even be made that no debt accrued against the surety Ross, until judgment was rendered against him, for the breach of the bond; but we have assumed otherwise, and probably correctly, that for the purposes of this case, and of this class of cases, the debt accrued when the breach of the bond occurred. Then when did the breach of the bond occur? The record does not show, except that it shows that it occurred between two certain dates. Now as Ross was the plaintiff below, and upon him devolved the burden of proof; and as it will be presumed, in the absence of anything to the contrary, that Leonard, the officer, did his duty, and as all property is prima facie subject to execution,' it must be presumed that said breach occurred at the latest date fixed by the plaintiff, Ross. The parties agree that the breach occurred between Nov. 5,1872, and Oct. 12, and 1874; and this is as definite as they fix the time; hence, we must assume that the breach occurred just before Oct. 12,1874. But in our opinion, if it occurred at any time between May 19,1874, (the time when Ross made his final proof and payment,) and October 12, 1874, the land was subject to said execution. Ross was entitled to his patent on May 19, 1874, and therefore his rights must be determined as though the'patent had in fact been issued on that day. (Stark v. Starrs, 6 Wall. 402" court="SCOTUS" date_filed="1868-04-18" href="https://app.midpage.ai/document/stark-v-starrs-87931?utm_source=webapp" opinion_id="87931">6 Wall. 402, 418; Levi v. Thompson, 4 How. 17" court="SCOTUS" date_filed="1845-12-16" href="https://app.midpage.ai/document/levi-v-thompson-86352?utm_source=webapp" opinion_id="86352">4 How. 17; 3 How. 441" court="SCOTUS" date_filed="1845-03-18" href="https://app.midpage.ai/document/carroll-v-safford-86324?utm_source=webapp" opinion_id="86324">3 How. 441; 4 Wall. 210" court="SCOTUS" date_filed="1867-01-18" href="https://app.midpage.ai/document/witherspoon-v-duncan-87768?utm_source=webapp" opinion_id="87768">4 Wall. 210; Myers v. Croft, 13 Wall. 291" court="SCOTUS" date_filed="1872-02-12" href="https://app.midpage.ai/document/myers-v-croft-88463?utm_source=webapp" opinion_id="88463">13 Wall. 291; Ogden v. Walters, 12 Kas. 284, 296; Stone v. Young, 5 Kan. 229" court="Kan." date_filed="1869-09-15" href="https://app.midpage.ai/document/stone-v-young-7882204?utm_source=webapp" opinion_id="7882204">5 Kas. 229, 231, 232; McMahon v. Welsh, 11 Kan. 292" court="Kan." date_filed="1873-01-15" href="https://app.midpage.ai/document/hunter-v-lee-7883345?utm_source=webapp" opinion_id="7883345">11 Kas. 292; Gulf Rld. Co. v. Morris, 13 Kan. 302" court="Kan." date_filed="1874-07-15" href="https://app.midpage.ai/document/river-v-morris-7883823?utm_source=webapp" opinion_id="7883823">13 Kas. 302, 318; Commissioners of Saline Co. v. Young, 18 Kas. 443; Bellinger v. White, 5 Neb. 399" court="Neb." date_filed="1877-01-15" href="https://app.midpage.ai/document/bellinger-v-white-6642191?utm_source=webapp" opinion_id="6642191">5 Neb. 399.)
*301The failure of the officers to issue the patent at the time that it ought to be issued, does not affect the rights of any person. The property becomes the purchaser’s at the time he pays for it, with the bare, naked legal title only remaining in the government. After Ross paid his money, he did not :any longer hold his land under the provisions of the congressional homestead act. When he paid for his land, he thereby took it out of the further operation of said homestead act; and after paying for it, he in fact abandoned it as a residence, which he could not properly have done, if he had still been holding it under the provisions of said homestead act. That provision of said homestead act which refers “to the issuing of the patent” has reference to that period of time when the patent ought to be issued, and not to the mere clerical work ■of issuing it.
The judgment of the court below will be reversed, and cause remanded for further proceedings.
All the Justices concurring.