Spiess v. Neuberg, 71 Wis. 279

Spiess v. Neuberg

71 Wis. 279 | Wis. | 1888

Cassoday, J.

Upon the facts stated the inferences are irresistible that Neuberg has been in the possession of the eighty ever since he bought out Colstad and received -the warranty deed of the same, May 14, 1877; that he claimed the same by virtue of such purchase and deed and the prior homestead entry of Colstad until he lost the same by the sheriff’s sale and deed. There can be no question but what the several mortgages were given to create a lien upon whatever right, title, and interest Neuberg had in the eighty as well as the other lands, and that the respective mortgagees advanced their moneys thereon in good faith and with the expectation of thereby acquiring adequate security for the same. With the same good faith and expectation, and to save her own mortgages, the plaintiff manifestly advanced the requisite amount of money on her purchase at sheriff’s sale, and subsequently in paying taxes on the land. Prior to 1886, there seems to have been no pretense but what the plaintiff had acquired whatever equitable right, title, and interest in the eighty Neuberg had previously possessed. During that period of three and a half years, Neuberg had remained in possession under and in subordination to such equitable right, title, and interest of the plaintiff. There can be no question but what Neu-berg made the entry of January 28, 1886, and the commutation of the same, December 15, 1886, for the purpose of cutting off such equities of the plaintiff and converting the possession which he thus held under her into an adverse possession and hostile title. This was held to be legitimate by the trial court, on the theory that the mortgages were given in contravention of the provisions and policy of the United States homestead law.

1. While the title remains in the United States, it is undoubtedly true that “ no lands acquired under the provisions of ” that law can “ in any event become liable to the satisfaction of any debt contracted prior to the issuing of *284tbe patent therefor.” Such is the statute. See. 2296, E. S. of U. S. This court has held that prior to such issuance of a patent such lands were not liable to attachment, execution, or mechanic’s lien. Gile v. Hallock,, 33 Wis. 523; Paige v. Peters, 70 Wis. 118. In the case last cited it is. ^aid in the opinion, in effect, that the right of the occupant of such lands to mortgage his interest in the same does, “ not come within the prohibition of the federal statutes cited.” That assertion is not only sustained by the authorities there cited, but others. Nycum v. McAllister, 33 Iowa, 374; Fuller v. Hunt, 48 Iowa, 163; Kirkaldie v. Larrabee, 31 Cal. 456; Orr v. Stewart, 67 Cal. 275; Cheney v. White, 5 Neb. 261; Jones v. Yoakam, 5 Neb. 265. We are not aware of any adverse decision in the supreme court of the United States.

2. But the same chapter of the Eevised Statutes of the United States in effect provides that nothing therein “shall be so construed as to prevent any ” homesteader “ from paying the minimum price for the quantity of land so entered, at any time before the expiration of the five years, and obtaining a patent therefor from the government, as in other cases directed by law, on making proof of settlement and cultivation as provided by law, granting preemption rights.” Sec. 2301, E. S. of U. S. Having commuted under that section, it is claimed that Neuberg is entitled to all the benefits and was subjected to.all the restraints and prohibitions of chapter four of those statutes, entitled “Pre-emptions.” Assuming for the present that when Neuberg made the several mortgages he was under the same disabilities that he would have been had he previously pre-empted the eighty, the question recurs whether such disabilities were such as to avoid the mortgages. That chapter provides, in effect, that “ any grant or conveyance which ” such pre-emptor “ may have made, except in the hands of bona fide purchasers for a valuable consideration, *285shall be null and void,” with an exception not material here. Sec. 2262, R. S. of U. S. But that provision did not operate as a disability, since the several mortgagees advanced their money in good faith, and the plaintiff bid in the property on the foreclosure sale and paid thereon the amount of money stated in good faith. The same section required such pre-emptor, before being allowed to enter the lands, to take the requisite oath, among other things, to the effect that he had “ not directly or indirectly made any agreement or contract, in any way or manner, with any person whatsoever, by which the title which he might acquire from the government of the United States should inure in whole or in part to the benefit of any person except himself.” Ibid. And that chapter further provides that “all assignments and transfers of the right hereby secured, prior to the issuing of the patent, shall be null and void.” Sec. 2263, R. S. of U. S. According to the supreme court of the United States, these provisions were enacted to prevent such pre-emption rights from being acquired by land speculators. Myers v. Croft, 13 Wall. 291. In that case Mr. Justice Davis, speaking for the court, said: “In view of these facts, we cannot suppose, in the absence of an express declaration to that effect, that Congress intended to tie up these lands in the hands of the original owners until the government should choose to issue the patent. If it had been the purpose of Congress to attain the object contended for, it would have declared the lands themselves unalienable until the patent was granted. In- • stead of this,'the legislation was directed against the assignment or transfer of the right secured by the act, which was the right of pre-emption, leming the pre-emptor free to sell his land, after the entry, if at that time he was in good faith the owner of the land and had done nothing inconsistent with the provisions of the law on the subject.” To the same effect, Lessee of French v. Spencer, 21 How. 228; *286Thredgill v. Pintcard, 12 How. 24; Landes v. Brant, 10 How. 348. These views are in harmony with the adjudications of this court, wherein it has been held that such pre-emptor, having made the entry, paid his money, taken his receipt or certificate, and recorded the same (as Colstad did), has the entire equitable title and interest, which he may assign, transfer, and convey at pleasure; and that the legal title will vest in his grantee upon the issuing of the patent. Dillingham v. Fisher, 5 Wis. 475; Stephenson v. Wilson, 37 Wis. 489. In Lamb v. Davenport, 18 Wall. 307, it was held that, “ unless forbidden by some positive law, contracts made by actual settlers on the public lands concerning their possessory rights, and concerning the title to be acquired in future from the United States, are valid as between the parties to the contract, though there be at the time no act of Congress by which the title may be acquired, and though the government is under no obligation to either of the parties in regard to the title.” It follows from these several adjudications that Colstad was under no disability which prevented him from conveying his equitable title and interest in the land to Neuberg, and that the latter Avas under no disability which prevented him from creating valid liens thereon by Avajr of mortgages, as he did. These things being so, there can be no question but what such equitable right, title, and interest passed to the plaintiff by such foreclosure sale and sheriff’s deed.

3. The plaintiff having thus acquired such equitable right, title, and interest in and to the eighty, Avas she divested of the same by the subsequent entr}? and commutation by Neuberg Avhile in possession as her tenant ? To hold that she was, would be the consummation of a gross fraud under the guise of a legal right. This being so, it should not be sanctioned by the courts, unless forced to do so by positive, law or binding authority. Here it has neither. The law on the subject seems to be pretty well settled to *287the effect that where the owner of such equitable right, title, and interest transfers the same by way of mortgage or otherwise to a bona fide purchaser for a valuable consideration fully paid, and afterwards acquires the legal title by patent from the United States, such legal title at -once inures to the benefit of such bona fide purchaser, and estops such patentee from claiming title as against such purchaser. This is sustained by the authorities already cited. This rule is well illustrated and strongly supported by Thredgill v. Pintard,, supra, in which it was held that “ where a settler upon the public lands had a pre-emption right to them, and sold them to a person who again sold them to a third party, the original vendor has a lien upon the land for the balance of the purchase money still due, and can enforce it by a bill in chancery, notwithstanding the vendee has talten out a patent in his own name under a subsequent preemption lawP So, in Lessee of French v. Spencer, supra, it was held that “a patent to the original beneficiary, who had previously sold his right, inured to the benefit of the purchaser, and related back to the date of the entry; and the heir of the grantor in such a deed is estopped from setting up a legal title under the patent.” See, also, Hughes v. U. S., 4 Wall. 232. In Orr v. Stewart, supra, the homesteader, after having mortgaged his right, title, and interest, and the mortgage .foreclosed and bid in by the mortgagee, who obtained thereon a sheriff’s deed, commuted his homestead entry into a cash entry, as here, and paid in full the price, and received a duplicate receipt and certificate of purchase therefor; but it was held that such after-acquired title by the mortgagor fed the mortgage, and inured to the benefit of the mortgagee and purchaser at such foreclosure sale.

A Upon the principles stated it may seem that the plaintiff had an adequate remedjr at law, and hence that there was no necessity, to bring this action. But the patent *288gave to Lfeuberg the apparent legal title of record; and some of the facts which make that title inure to the benefit of the plaintiff are not of record, and hence there is a necessity of establishing the plaintiff’s right to the land by an adjudication.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded with directions to enter judgment in accordance with the prayer of the complaint.