173 P. 786 | Wyo. | 1918
The facts in this case as they appear by the record are that the plaintiff in error, Arthur C. Roberts, made desert land entry for certain lands in .Section 2, Township 33 N., R. 101 West, August 31, 1901, which entry was allowed, he at the time paying twenty-five cents an acre for the land covered by his entry. That he made his first yearly proof August 16, 1902, showing an expenditure of $200.00, and that the second and third yearly proofs were made November 5, 1903, showing an expenditure of $300.00. Final proof was made November 18, 1903. At that time the land was unsurveyed, or at least the government survey was not approved by the United States Surveyor General until March 29, 1913, and was received at the local Land Office December 13, 1914. Final payment of one dollar per acre made March 24, 1914, and final certificate issued April 30, 1914. Patent issued February 18, 1916. On November 25, 1908, Roberts and his then wife (since deceased) executed and delivered to Hudson their promissory note for $1,600, due five years after date with interest, and to secure the payment of said note they at the same time executed and delivered to Hudson an instrument in writing in form a quitclaim deed to the land in question, which deed contained a provision for a reconveyance upon payment of the note.
Suit was commenced on the note, a writ of attachment sued out and levied upon the land described in the instrument above referred to. Later, and before answer, plaintiff filed an amendment to his petition setting forth said instrument, alleged it to be mortgage and asked its foreclosure. Defendant pleaded payment, and that at the time he executed said instrument he had only a possessory right to said land; that said quitclaim deed was illegal, fraudulent, null and void; that “said land is now the home and residence of himself and family and that the plaintiff has no legal right, title, interest or claim in and to the said premises or any
The court found against defendant on his plea of payment and gave judgment against him for the amount due on the note. No complaint is made in this court as to that, finding and judgment. The court further found and adjudged the instrument in question to be a mortgage, and we do not understand counsel for plaintiff in error to contend otherwise if it was a lien at all upon the iand. His contention is that Roberts had no title or interest in the land which he could convey or mortgage, and that the instrument being in form a quitclaim it created no lien upon the title he afterward acquired by the patent. That Roberts had such an interest in. the premises as he could convey or encumber is recognized by the Land Department of Government, and by the courts. Having made his filing, paid the initial payment, made proofs of the required expenditures for the three years and having submitted his final proof before he gave the mortgage he had then done all that he was then required to do or could do to entitle him to a patent. The-land was unsurveyed and the Government was not then ready to receive the final payment and issue a patent. In such instances, by rule of the Department final payment is deferred until the survey is completed and approved. (General Land Office Circular; approved September 30, 1910.) The mortgage therefore was a valid lien upon the equitable interest or title then held by Roberts. The legal title thereafter conveyed to him by the patent was based upon that equitable one and without which no patent could rightfully issue. In United States v. Detroit Lumber Co., 200 U. S. 321-334, the court said: “A patent from the United States operates tú' transfer the title, not merely from the date of the patent, but from the inception of the equitable right upon which' it is based. (Shipley v. Cowan, 91 U. S. 330.) Indeed, this is generally true in case of the merging of-an equitable fight into a legal title.” This doctrine of relation is a fiction of law resdrted to whenever justice requires.. In
In directing a sale of the land to satisfy the judgment, the District Court held that the title acquired by the patent related back to the date of the entry and was covered by the lien of the mortgage. In the circumstances of the case we think that holding was correct, not only because the case appears to be one wherein justice requires the application of the doctrine of relation, but also because we are of the opinion such was the intention of the parties, as disclosed by the recitals in the instrument and the situation of the parties.
There is also another reason disclosed by the record, but not discussed by counsel, why the judgment should not be reversed. It appears that at the commencement of the action a writ of attachment was issued and levied upon this particular land, and that the attachment has never been discharged or the levy vacated, and the land attached might have been ordered sold to satisfy the judgment, and would have included whatever title or interest the. defendant had in the land at the date of the levy of the attachment. It is true he alleged in his answer that he was then occupying it as his home with his family, but if any homestead rights were properly before the court in this action, no evidence was offered in support of that allegation.
No prejudicial error having been made to appear, the judgment of the District Court is affirmed. Affirmed.
