The Hillsdale standard. [volume] (Hillsdale, Mich.) 1851-1909, 1877-06-19
HOMESTEAD LAW.
sUpsCIaL DECISIONS UNDER
TnE HoNEsTEAD LAw.

lfalnl~Led by y. vance iEWr. fntl-. httof-
sey -al.law. Washington, d, C., aud taken
ON Judicial Pablic Land Decisions. ."-Epi-
roR-l
III settler on public land give
mortgage on the land, aud then enter
the lnnd AS q homestead, the mortgage
may be enforced.
BY the Court:
HAD the deed been an absolute con-
veyance In fee instead of mortgage IN
Zee. any subsequently, ecquirsd title,
under our statute concerning convey
ances would have enured 10 the benefit
OF the plaintiff. tSec. 33.) .iIarI -.
The fact that the title subsequently
comes from Tthe United States would
make no difference. r-s a.~al
There 10 nothing in the Homestead
Act of 1861 forbidding ayoluntary
alienation 10y the grantee under that
act. The Same principle applies TO a
mortgage OF the fee. CLARK vs.
Baker, IA Cal, G30.) -r.- .r..,..
The title will pass not merely In con-
| sequence OF the enforcement OF the
payment Of a debt by the ordinary pro-
cess of the courts, but in consequence
OF the voluntary contract OF the party
I in executing the mortgage.
The mortgagcr OF the fee is stopped
from denying the existence Of the lien
which he has attempted TO create and
from defeating by his own act the en-
forcenaent Of the lien against the prop
erty thus mortgaged.i -,
We think tine plaintiff was entitled to
the ordinary Judgment for a sale Of the
mortgaged property without any exeep-
tion OF rights subsequently acquired
by the mortgagor under the Home
stead Act OF 1862. 80 . Kirk
aldie vs. Larrabee 81, Cal. 49,"
/ Land entered under the Homestead
Act. cannot be taken for the satisfac-
ton of debt contracted prior 10 the
issuance OF the patent, although the
Judgment was rendered after the
patent had been issued, and the exemp.
ton was not claimed by the patentes
but by his grantee. m.
By the Court:
! 80 "The only question pre-.
sented on this appeal is. whether Q
homestead claim perfected by pateni
under the act OF Congress, and after
ward conveyed by patentee to another
person, is exempt from execution anc
sale for debt contracted by the pstentet
pior to the issuance Of the patent, ant
which had been reduced to iudgmen
before the conveyance.
The theory of the defendant is tina
after the patent issues and the title la
fully vested in the patentee the powe
of the Federal Government over tn
land ceases, and Congress has no All
thority to exempt il from execution
for antecedent debts. II this theor,
be sound, Congress has made en- abor
tive effort 30 protect from seizure an,
sale for antecedent debts, homestead
gra nted to actual settlers on the publ
lands .r fv..t.4,t
But we think it il not sonnd. Unde
the Federal Constitution, Congress
vested with the exclusive power I
manage and dispose OF the public lands
|. IL may dispose OF them in such
, manner. on such terms and conditions
! and subject to such restrictions IN
. limitations ns in its judgement VA
best promote the public welfare.
In furtherance OF what is deemed
, wise policy, tending To encourage Sc
tlement, and 70 deyelop the resources
: of the country, il invites the heads {
4 families 10 occupy small parcels Of I'll
\ public Land, aud agrees with them th'
q IL they will reside upon s,sO i~ssa A.
!. the period OF five years, they shall r
= ceiye the title in fee, discharged OF q
. debts of this character before that col
tracted.
To DENY to Congress the power
make a valid and effective contract
!, this character with the homestes
\ claimant would materially abridge 1
- power of disposal, and seriously inte
= fcre with favorite policy OF the go
!. ernment. which fosters measures ten
inc TO distribution of the lands
actnal settlers at nominal price
Miller va. Little, AZ Cal. 3iS.
Land entered under the Homeste
Act cannot be taken IN execution al
IA sold for the payment of debts contra'
81 ed prior to the issuance oil the patel
at and the fact that the exemption
a. claimed 10y an assignee OF the patent
,l can make no difference.
is BY the Court:
r. "The terms of this secti
to Sec. 4 of Homestead Act) clearly
IN. empt all lands patented under the
mt OF which IL is a Fart, from liability
W. any Of debts Of the patentee contract
d- prior to the issuing OF the pat
he whether. lands are still held by
70: patentee, or bona fide purchaser
living title from him.
nj; But it is claimed by the aPpells
% % that this provision OF act OF CongT
Ss ia uncopstitutiona and void; that q
p gress can make no provision which
50 withdraw OF exempt the lands from
IS operation State laws regulating the
~ ~ lection OF debts, after the title has II
% passed from the government
ss The 6rst question for our determi
% ton. is the constitutional validit,
81 This provision Of the art.
The power Of disposition contai
- In this section (Third Sec, Article
80 the Constitution), is delegated by
40 people of the United Statea 20 the c
- eress OF the United States. Whats
~ ~ power is conferred upon the Nati'
a. Goyefpment. or either branch of IL
~ the Constitution is accompanied
- the element OF political sovereig
,, 10 The power Of disposition conferred
.. "a the Constitution in the paragr
! is above quoted in unquslifed, save
/ os il shall not prejudice any claim OF
os United States, or Of any partic
/. ~ State s
"a Whateyer may be the effect OF
, 81 qualification, 10 clearly does not n
J 30 TO the power Of the State which
5 Is claimed 10 he Effected by the AC
$ 8 - Congress involved in this this case
: ~ So far. therefore, as this case IL
q IN eerueJ. The power conferred is sbsc
4 y and unqualified. aud IN the abss
= ~ mower OF the sovereign To aispo
- !, ~ -. the territory or other property OF
y ia National Government.
d 20 What are needful rules aud re-
= 20 tons for the exercise OF this pow
Is 70 disposition is n question Of legisl
70 =, ~ discretion, anil it's exercise bv Con,
D1 il viii not We ipteriered with by tho
"a 10 cial tribunals OF the country.
81 10 III We are correct IN the views thu
~ % pressed any State law suhiscting
- - ~ ~ patonted under the Act OF Cong
M no known as the Homestead Act, tc
rs 90 and sale upon execution issued u
~ G. Judgment Tor debt OF the pat
~ ~ ~ contracted prior TO the issuance
30 ~ patent. would he in conflict. -no
"a - with the said Act OF Congress
"a 81 with the provisions Of our State
80 as stitntiop. and upon both gr.
~ m void (Cons OF Nina, Art, 2, >
Russell VS.. Lowth, II Mum, u
% a. Land entered under the Home
as As lava. cannot be taken in exos
r15 t6 and sold for debts eoptracted ~
tf<l ~ I - ..IA Aln x.atonf