Martyn v. Olson, 148 N.W. 834

Martyn v. Olson

148 N.W. 834 | N.D. | 1914

Bruce, J.

(after stating the facts as above). Although the courts ■at first doubted the validity of a mortgage which was made before the issuance of the patent, and this even as against the original homesteader, they later, and in a number of recent decisions, have asserted ■the doctrine of what may be termed the inchoate right to legal title in *322the entryman, and have upheld such mortgages as promises to mortgage and inchoate liens which become vested and enforceable when the patent is once issued to the entryman. See Adam v. McClintock, 21 N. D. 483, 131 N. W. 394, and cases cited. They have, on the other hand, held that until the issuance of such final patent, or at any rate, until the doing of all things by the entryman which are prerequisite thereto the entryman has no complete title in the land, either legal or equitable, nor has his estate after his decease. Whatever right he had under his homestead entry they have held is terminated at his death and the title to the land reverts to the government and does not pass to his heirs or to his estate after his decease. These heirs, under U. S. Rev. Stat. §§ 2291, 2301, H. S. Comp. Stat. 1901, pp. 1390, 1406, 6 Fed. Stat. Anno. pp. 292, 317; section 32, Circular No. 10, of the Department of the Interior, have preferred rights as new entrymen or homesteaders and in making proof and in commuting are allowed to credit the period of residence of their ancestor. They are looked upon, however, as new entrymen who have no privity with their ancestor and who take directly from the government by donation or purchase rather than by inheritance. Gjerstadengen v. Van Duzen, 7 N. D. 612, 66 Am. St. Rep. 679, 76 N. W. 233; Gjerstadengen v. Hartzell, 9 N. D. 268, 81 Am. St. Rep. 575, 83 N. W. 230; Gould v. Tucker, 20 S. D. 226, 105 N. W. 624; Aspey v. Barry, 13 S. D. 220, 83 N. W. 91; Hall v. Russell, 101 U. S. 503, 25 L. ed. 829; McCune v. Essig, 199 N. Y. 382, 50 L. ed. 237, 26 Sup. Ct. Rep. 78; Council Improv. Co. v. Draper, 16 Idaho, 541, 102 Pac. 7; Haun v. Martin, 48 Or. 304, 86 Pac. 371; Marley v. Sturkert, 62 Neb. 163, 89 Am. St. Rep. 749, 86 N. W. 1056.

Such being the case, there was no estate in the deceased Eobert J. Martyn to which the inchoate mortgage to the respondent ever attached. The deceased had no complete legal or equitable title before his death, and his heirs took not as his heirs, but as donees or purchasers of the land, which, upon the death of their ancestor, had reverted to the. general government, free and clear of all liens and encumbrances. Counsel for respondent seeks, we know, to base an equitable if not a legal title in Eobert J. Martyn, the deceased, upon the fact that before his death he had lived upon the land for a sufficient length of time to enable him to commute his'proof if he had so desired, and that his heirs afterwards relied upon this fact and commuted their proof upon *323the strength of their ancestor’s residence, and without further work or 'residence on their part. The fact remains, however, that the ancestor did not commute or at any time pay to the government the sum of money necessary therefor, nor is there any evidence that he intended so to do. It may be, as counsel for respondent suggests, that in certain cases equitable as well as legal titles are recognized, and that equitable titles have been held to exist in cases where the entryman has done everything necessary to his final proof but has not actually received his patent. See Adam v. McClintock, supra.

Unfortunately no such state of facts is before us. The payment of the amount provided by the statute is as necessary to commutation as is the residence upon the land which is required by the statute, and at no time did the deceased pay this amount, nor have we any evidence that he ever intended to do so, nor in fact that he had any intention of commuting at all. Such being the case, there was no complete title in the said Robert J. Martyn, deceased, either legal or equitable, to which the mortgage could or did attach. See Wittenbrock v. Wheadon, 128 Cal. 150, 79 Am. St. Rep. 32, 60 Pac. 664; Hussman v. Durham, 165 U. S. 144, 41 L. ed. 664, 17 Sup. Ct. Rep. 253; Marley v. Sturkert, 62 Neb. 163, 89 Am. St. Rep. 749, 86 N. W. 1056; Stark v. Fallis, 26 Okla. 357, 109 Pac. 66. We may personally be of the opinion that in cases where an heir obtains title by relying upon the residence and labor of his ancestor, it would be an equitable and wise rule to make him liable to the payment of mortgages such as that before us. It is not for us, however, to establish the public policy of the national Congress or of the national courts. All that we can do is to announce the law as we believe it to havé been announced by that Congress and by those courts.

Nor is there any merit in the argument of counsel for respondent that this is an equitable action, and that under the maxim that he who seeks equity must do equity, the plaintiff and appellant should be required to pay the mortgage before he is entitled to the relief prayed for. We are aware of the decisions in the cases of Tracy v. Wheeler & Scott, 15 N. D. 248, 6 L.R.A.(N.S.) 516, 107 N. W. 68, and Cotton v. Horton, 22 N. D. 1, 132 N. W. 225. All that these cases decide, however, was that a court of equity will not cancel a real estate mortgage securing a just debt which coneededly has not been paid, at the suit of the mortgagor, or one standing in his shoes, when the only ground *324urged for such relief is that the statute of limitations is available as a defense against its foreclosure. The distinction between the case at bar and the cases cited is that in the case at bar there was no privity of estate between the plaintiff and his ancestor, nor had the mortgage ever attached to the land. The plaintiff owed no debt, nor had he any legal obligations to anyone. He did not claim under his ancestor, nor was he in privity with him. “The doctrine of relation,” says the Supreme Court of the United States in Gibson v. Chouteau, 13 Wal. 92, 20 L. ed. 534, “is a fiction of law adopted by the courts solely for the purposes of justice, and is only applied for the security and protection of persons who stand in some privity with the party that ... acquired the equitable claim or right to the title” of the land. (See also Hussman v. Durham, 165 U. S. 144, 41 L. ed. 664, 17 Sup. Ct. Rep. 253; 16 Cyc. 1716.)

The judgment of the District Court is reversed, and the trial court is directed to enter a decree canceling the said mortgage and the records thereof as clouds on the title of the appellant, and quieting his title as against the respondent. The defendant and respondent will pay the costs and disbursements of this appeal.