102 Wis. 389 | Wis. | 1899
This is an appeal from a judgment of foreclosure and sale in an action commenced April 13, 1895, to foreclose a mortgage bearing date September 8,1873, executed by A. W. Raymond and wife to J. 0. Gwin & Co., to secure $800, and which mortgage was assigned to the plaintiff October 10,1874. Issue being joined and trial had, the parties stipulated the facts or the court found them to be, in effect, that May 18, 1869, one A. W. Raymond, the mortgagor, made application to enter the lands described as a homestead, pursuant to the acts of Congress then in force; that March 6,1871, he made, executed, and delivered to one Stafford a quitclaim deed of all the pine timber on the lands described, and that deed was recorded March 7, 1871; that March 27, 1873, the final receiver’s certificate or receipt was issued to A. W. Raymond for such lands, and such receipt was recorded October 23, 1873; that March 22, 1875, such certificate or receipt was set aside and declared void by the commissioner of the general land office of
The only question presented in this case is whether the mortgage is valid as against the mortgagor and those claiming under him, or void because it was executed prior to the time when the mortgagor obtained his patent. The question must be resolved according to the federal statutes as construed by the supreme court of the United States. Paige v. Peters, 70 Wis. 182; Wis. Cent. R. Co. v. Wis. River L. Co. 71 Wis. 99; Whitney v. Detroit L. Co. 78 Wis. 216; Miller v. Donahue, 96 Wis. 508. Such statutes required the person, making such homestead entry, after the expiration of five years from the time of making such entry, to make proof that he had resided upon or cultivated the premises for the term of five years immediately succeeding the time of filing the affidavit of such entry, and also to make an affidavit that no part of such land had been alienated, except as therein provided. R. S. of U. S. sec. 2291. The exception thus mentioned relates to transfers for church, cemetery, school, or railroad purposes. R. S. of U. S. sec. 2288. Such statutes also provide, in effect, that no lands acquired for such homestead should “ in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor.” R. S. of U. S. sec. 2296.
This court has held that one who has placed machinery upon land which the purchaser of the machinery has entered as a homestead, but for which he has obtained no patent, cannot enforce a lien upon the land for the payment of the machinery. Paige v. Peters, 70 Wis. 178. Subsequently, this court held that a person having made such homestead entry might give a valid mortgage thereon prior to obtaining his patent. Spiess v. Neuberg, 71 Wis. 279. In reaching such conclusion, this court followed the prior adjudica
It is contended that such cases have since been practically overruled by the supreme court of the United States. In the case particularly relied upon it was held that “ a contract by a homesteader to convey a portion of the tract when he shall acquire title from the United States is against public policy and void; and it cannot be enforced, although a valuable consideration may have passed to the homesteader from the other party.” Anderson v. Carkins, 135 U. S. 483. That was an action for specific performance of a contract entered into prior to the entry of the land, and hence, in our judgment, has no application to the case at bar. In a quite recent case it has been held by that court that “ in holding that, as between the United States and a homestead settler, the land is to be deemed the property of the former, at least so far as is necessary to protect it from waste, the court is not to be understood as expressing an opinion whether, as between the settler and the state, it may not be deemed to be the property of the settler, and therefore subject to taxation.” Shiver v. U. S. 159 U. S. 492. In a still more recent case it is held that, “ as between the government and the settler, the title to public land, until the conditions of the law are fulfilled, remains in the United States,
By the Gowt.— The judgment of the circuit court is affirmed.