118 Wash. 142 | Wash. | 1921
— In the year 1905, Salvino Razzano, the father of the respondents, made a homestead entry of certain land in Kittitas county, and obtained his patent in November, 1911. In October, 1915, the holder of the patent and his wife conveyed to the respondents. Prior to the issuance of the patent, Salvino Razzano was indebted to the appellant W. T. Burcham, the indebtedness being represented by certain notes. On December 4, 1911, Severina Razzano, the wife of Sal-vino Razzano, gave a new note which was a renewal of the old notes and the old notes were surrendered. The testimony of the appellant is to the effect that there was an understanding that this new note was to be also signed by Salvino. Suit was brought upon this new note in September, 1915. The wife alone was made party under the first complaint, but thereafter an amended complaint was filed and the husband was joined. Judgment was obtained upon this note against both Salvino and Severina Razzano on November 28, 1916. Execution was issued and the property described in the patent was levied upon and sold to the appellant W. T. Burcham. The sale was thereafter confirmed and sheriff’s deed issued.
The present action was brought by the respondents to quiet title to the land. Appellants set up in their answer that the conveyance from the parents to the sons was fraudulent and without consideration. The trial court entered a decree quieting the title to the property in the respondents and adjudging the sheriff’s sale to the appellant W. T. Burcham to be null and void.
From the evidence presented, the trial court was justified in finding that the deed under which the respondent s’claimed title was for a consideration and not made with intention to defraud creditors. But we tbiulr that the judgment should also be sustained upon
Appellants contend that the renewal note is a new obligation and, being dated after the issuance of patent, that the origin of the debt for which it was given cannot be inquired into; and further, that the present action is a collateral attack upon the judgment rendered in the action upon the note. We cannot agree with either contention. TJ. S. Rev. Stat. 2296, reads as follows:
“No lands acquired under the provisions of this chapter shall in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor.”
This has been the subject of a great many decisions and we will refer to a few of them. Its constitutionality has been upheld in Ruddy v. Rossi, 248 U. S. 104, and in that case it was held that the exemption applies to debts incurred between the issuance of the receiver’s final receipt and the patent, as well as to prior debts. The exemption extends to the grantee of the entryman. Dickerson v. Cuthburth, 56 Mo. App. 647; Baldwin v. Boyd, 18 Neb. 444, 25 N. W. 580. The supreme court of Oregon in Wallowa National Bank v. Riley, 29 Ore. 289, 45 Pac. 766, 54 Am. St. 794, held that renewals of older notes were but the evidence of the same debt and could not be made liens upon lands patented after the original debt was contracted. This case was followed by Schultz v. Levy, 33 Ore. 373, 54 Pac. 184. To the same effect is Ash v. Eriksson, 115 Minn. 478, 132 N. W. 997. We find no authority to the contrary. The object of the statute is to secure to the entryman exemption from all contract liabilities prior to patent.
On the question of collateral attack, appellants cite Watkins Land-Mortgage Co. v. Mullen, 62 Kan. 1, 61 Pac. 385, 84 Am. St. 372. In that case land of a deceased entryman was sold in a probate proceeding for
We find no authority supporting the position of appellants, and in principle they should not prevail.
The judgment appealed from is affirmed.
Parker, C. J., Main, Mackintosh, and Holcomb, JJ., concur.