13 Neb. 1 | Neb. | 1882
This is an action in the nature of a creditor’s bill to subject certain real estate formerly owned by Steele to the payment of the plaintiffs’ judgment. The cause was referred to a referee, who found that on the third day of February, 1877, the plaintiffs caused an attachment to be levied upon the land in controversy in an action pending in the district court of Butler county; that a judgment was rendered thereon in favor of the plaintiffs in December, 1879, and said real estate ordered sold; that prior to the levy of said attachment, Steele had conveyed the land in controversy to his sister without consideration, and with intent to hinder and delay creditors, and that the grantee in the deed had full knowledge of this purpose; that the land in question was a homestead entered under the laws of the United States, the date of settlement being--, 1870, and the patent being issued February 20, 1878, and after the debt on which judgment was recovered was contracted.. There are other findings in the case to which it is unnecessary to refer. The referee found that the land in question was not
The only question for determination is, is the land in dispute liable upon the plaintiffs’ judgment? Section four of the act of Congress of May 20, 1862, granting homesteads on public lands (sec. 2296, Rev. Stat. U. S.), provides that: “No lands acquired under the provisions of this act shall, in any event, become liable to the satisfaction of any debt or debts contracted prior to the issuing of the patent therefor.”
The statute making the grant provides as one of the conditions thereof that in no event shall the land thus granted be liable for debts contracted before the patent was issued— that is, is not liable to be levied upon under an execution or attachment. This being so, the defendant Steele had a right to convey the land in question to whom he pleased, and for such consideration, or no consideration, if he saw fit to do so, and the plaintiffs have no cause of complaint on that ground, and cannot predicate a right of action thereon.
The case of Bellinger v. White, 5 Neb., 399, is cited by the plaintiffs to sustain the attachment, but it is not in point. In that case plaintiff made a settlement upon his homestead on the fourth day of November, 1864, and the patent was issued on the first day of October, 1871. In the spring of 1871 the land was assessed, and the land afterwards sold for the taxes levied thereon. The action was brought to enjoin the execution of the tax deed and to have the taxes declared null and void.
The plaintiff in that ease sought the aid of a court of equity to be relieved from a cloud upon his title without an offer to .do equity. The court held that he was the equitable owner of the land from the time that he was entitled to a patent therefor, and that he could not allege his own failure to obtain the same as a cause for equitable relief. But that
Judgment affirmed.