18 Colo. 93 | Colo. | 1892
delivered the opinion of the court.
The following questions are presented by this record:
First. 'Are lands entered únder the United States homestead acts liable to the satisfaction of debts contracted by the homestead claimant between the date of the final certificate and the date of the patent?
Second. Is the capital stock of a ditch company exempt from levy and sale where the ditch is used to convey water to land entered under the homestead act ?
The first of these questions is not free from doubt. The debt having been contracted prior to the actual issuance of the patent, the exemption is claimed by the literal terms of the act. On the contrary, plaintiff in error contends that the exemption provided for by section 2296 of the Rev. Stats, of the U. S. applies to the land only prior to the issuance of the receiver’s final certificate therefor. That from and after
A number of cases have been cited in which this section of .the United States statute has been under consideration by the courts; in none of these cases, however, has the question now presented been directly before the courts for adjudication. An examination of these cases shows that in nearly all it affirmatively appeared that the debt was contracted prior to the issuance of the receiver’s final certificate, and in none of them does the contrary appear. Seymour v. Sanders, 3 Dillon, 437; Gile v. Hollock, 33 Wis. 523; Patton v. Richmond, 28 La. An. 795; Miller v. Little, 47 Cal. 348; Russell v. Lowth, 21 Minn. 167; Clark v. Bayley, 5 Oregon, 343; Kansas Lumber Co. v. Jones, 32 Kans. 195.
In the case of the Kansas Lumber Co. v. Jones, supra, the action was to foreclose a mechanic’s lien upon certain real estate. The defense relied upon was the same as here. In that case, however, the final certificate had not been issued at the time the lien was claimed, and the . court decided that the lien did not attach, but said: “ If the defendant had been entitled to a patent, we think the lien would have attached to the land, for where a person is entitled to a patent, — that is, where a patent is already due, the rights and liabilities of the parties are generally the same as though the patent had in fact been issued. But in this case the defendant was not entitled to any patent.” Although the views of the court thus declared do not appéar to have been necessary to the judgment, they are entitled to weight as an expression of opinion from an able court.
The nature of the title conveyed by the certificate was under investigation. In the case of the Omaha & Grant S. & R. Co. v. Tabor, 13 Colo. 41, Mr. Commissioner Reed in an opinion approved by this court said: “ The patent does not invest the purchaser with any additional property in the land.
We are of opinion that the exemption provided for only applies up to the time of the divesture of the government title. The title passes with the receiver’s certificate. This view finds support from the fact that in nearly all of the states of the Union, including Colorado, statutes may be found which authorize and require the listing of real property for taxation from and after the time of the issuance of the receiver’s final receipt therefor. In the case of Carroll v. Safford, 3 Howard, 459, it was contended that such legislation was not valid under the Constitution and laws of the United States, the argument being that it interfered with the disposition of the public domain by congress. In disposing of this question, the court used the following pertinent language :
“ But independent of the force of usage, we think the construction is sustainable. When the land was purchased and paid for, it was no longer the property of the United States, but of the purchaser. He held for it a final certificate, which could no more be canceled by the United States than a patent. It is true, if the land had been previously sold by the United States, or reserved from sale, the certificate or patent might be recalled by the United States, as having been issued through mistake. In this respect there is no difference between the certificate holder and the patentee.
“ It is said, the fee is not in the purchaser, but in the United States, until the patent shall be issued. This is so, technically, at law, but not in equity. The land in the hands*97 of the purchaser is real estate, descends to his heirs, and does not go to his executors or administrators. In every legal and equitable aspect, it is considered as belonging to the realty. Now, why cannot such property be taxed by its proper denomination as real estate? — in the words of the statute ‘ as lands owned by nonresidents.’ And if the name of the owner could not be ascertained, the tract was required to be described by its boundaries or any particular name. We can entertain no doubt that the construction given to this act by the authorities of Michigan,-in regard to the taxation of land sold by the United States, whether patented or not, carried out the intention of the lawmaking power.”
Again, the Yosemite Valley case, 15 Wallace, 77, is authority for saying that when a claimant has complied with all the preliminary acts prescribed by congress for the acquisition of title, the power of regulation and disposition conferred upon congress by the constitution ceases.
Mr. Washburn, in his work on real property, says: “As soon as the title shall have passed from the United States, it takes the character of other property within the state, and is subject to state legislation.” 3 Washburn on Real Prop. (4th. ed.) p. 187.
It is the declared policy of the courts, both national and state, to declare the title in the claimant from the time he receives the final certificate of entry. When the patent issues it relates back to the date of such certificate. And the construction of the exemption clause, which’ holds that the exemption extends only down to the time when a patent should and would be issued were it not for the delays necessarily arising from the amount of work before the land department of the government, is more in harmony with the general policy of the act, and should be adopted. When a patent is due, we are of the opinion it should be treated as having been issued in contemplation of the act, and that the time of the exemption then ceases. Aurora Hill Con. M. Co., v. 85 M. Co., 34 Fed. Rep. 515; Alta M. & S. Co. v. Benson M. & S. Co., 16 Pac. Rep. 565.
Second. The conclusion reached upon the first question disposes of the second. The exemption of the ditch stock is only claimed on the ground that the ditch was an appurtenant to the land and was necessary to the full enjoyment thereof. Having decided that the land was not exempt, of course the ditch stock is not. Aside from this, by statute in this state, the stock, in ditch companies is personal property and subject to execution and sale the same as other personal property. Furthermore, we must not be understood as sanctioning the proposition that the stock of a ditch company is evidence of right appurtenant to the land. Gen’l Stats. 1883, sec. 389; Conway v. John, 14 Colo. 30; Strickler v. Colorado Springs, 16 Colo. 61.
The judgment of the district court is reversed and the cause remanded.
Reversed.
