289 F. 177 | 9th Cir. | 1923
(after stating the facts as above). The court below did not deem it necessary or proper to determine the question of the validity of a mortgage of a homestead claim before final proof or before entry, as in this case, nor do we find it necessary to concern ourselves with that abstract question. The utmost that can be claimed in favor of such a mortgage is that the lien of the mortgage will attach as soon as the title has passed from the United States, as in the case of any other after-acquired title. But so long as the title remains in the United . States the mortgage is a mere nullity, and can affect neither the title of the United States nor the right of possession of the homestead claimant, which is derived from and dependent upon the laws of th'e United States. As said by the court in United States v. Waddell, 112 U. S. 76; 5 Sup. Ct. 35, 28 L. Ed. 673:
“The right assailed, obstructed”, and its exercise prevented or intended to be prevented, as set out in this petition, is very clearly a right wholly dependent upon the act of Congress concerning the settlement and sale of the public lands of the United States. No such right exists or can exist outside of an ac?t of Congress. The Constitution of the United States, by article IV, section 3, in express terms vests in Congress ‘the power to dispose of and make all needful rules and regulations respecting the territory or other property of the United States.’ One of its regulations—the one under consideration—authorizes a class of persons, of whom Lindsey is one, to settle upon its land, and, on payment of an inconsiderable sum of money and the written declaration of intent to make it a homestead, he is authorized to reside there. By building a house anil making other improvements on it, and residing there for five years consecutively, which, under the statute and under that alone, he has a right to do, and paying the fees to the officer necessary to its issue, he acquired a patent or title, in fee to, the land. But his title is dependent on continued residence of himself or family. ' By the original entry he acquires the. inchoate, but well-defined, fight to the land and- its possession, which can only be perfected by continued residence, .possession, and cultivation for five years. His right to continue this residence for five years for that purpose, is dependent upon the act of Congress. His right to the patent, after this is done, rests exclusively on the same foundation.
*180 “The right here guaranteed is not the mere right of protection against personal violence. This, if the result of an ordinary quarrel or malice, would be cognizable under the laws of the state and by its courts. But it is something different from that. It is the right to remain on the land in order to perform the requirements of the act of Congress, and, according to its rules, perfect his incipient title. Whenever the acts complained of are of a character to prevent this, or throw obstruction in the way of exercising this right, and for the purpose and with intent to prevent it, or to injure or oppress a person because he has exercised it, then, because it is a right asserted under the law of the United States and granted by that law, those acts come within the purview of the statute and of the constitutional power of Congress to make such statute. In the language of the court in Ex parte Yarbrough: ‘The power arises out of the circumstance that the function in which the party is engaged, or the right which he is about to exercise, is dependent on the laws of the United States. In both of these cases it is the duty of that government to see that he may exercise this right freely, and to protect him from violence while so doing, or on account of so doing.’ * * *
“It would indeed be strange if the United States, under the constitutional provisions we have cited, being the owner of unsettled lands larger in area than the most powerful kingdoms of Europe, and having the power ‘to dispose of and make all needful rules and regulations respecting this territory,’ cannot make a law which protects a party in the performance of his existing contract for the purchase of such land, without which the contract fails, and the rights, both of the United States and the purchaser, are defeated.”
See. also, Williams v. Sherman, supra.
In the light of these authorities, the court beiow might well have charged the jury that neither the deed to the Savings Bank, the decree of foreclosure, nor the deed from the sheriff gave a right of possession to the homestead claim, or authorized any interference whatever with the possession of the homestead claimant by writ of assistance or otherwise until after final proof. Because the instructions fell short of this, the plaintiffs in error have no just cause for complaint. Testimony as to acts committed by the .plaintiffs in error prior to the date of the alleged conspiracy was properly admitted. The government was not bound by the date of the conspiracy as laid in the indictment, and the testimony was clearly competent to explain and give color to similar acts committed by the same parties at a later date.
The testimony was ample to support the verdict. The record shows that the plaintiffs in error interfered in divers ways with the homestead claimant in his possession of the homestead claim even to the extent of ousting him from that possession. From a legal point of view their acts in this regard are inexplicable, because, as already stated, they could not even hope to acquire title to the homestead claim through the purchase at foreclosure sale, unless title first became vested in the homestead claimant; yet they did everything within their power to forestall that consummation. The inference would seem to be that they had little faith in their mortgage claim, and hoped to acquire title to the property in some other way, or by some other means; but whether their acts were ill-advised or malicious, or whatever their motive, the testimony is ample to sustain the conviction, and the judgment of the court below is accordingly affirmed.