The Caldwell tribune. [volume] (Caldwell, Idaho Territory [Idaho]) 1883-1928, 1916-01-21
LAND MAY BE SOLD FOR DEBT
CONTRACTED AFTER PROOF
So Holds Supreme Court In A Divid-
ed Opinion.

Land procured from the United
States under the provisions of the
homestead law may be sold on execu-
| ton for the payment of debt con-
tracted after final proof has been made
! but before the issuance Of the patent"
Such was the ruling of the Idaho
| supreme court in an opinion handed
down Saturday In the case of Charles
F. Ruddy, plaintiff and respondent VS..
| Herman ]. Rossi, defendant and ap-
pellant, appealed from the First judi
cial district, Judge Woods, whose
judgment is modified. The opinion
was written by Justice Bud~-e, with
Justice Morgan concurring and Chief
Justice Sullivan dissenting.
Holds to Statute
Chief Justice Sullivan bases his dis
sent upon section 1896 of the revised
statutes of the United States which
reads:
mo lands acquired under the pro-
visions of this chapter shall in any
event become liable to the satisfaction
OF any debt or debts contracted prior
to the issuing of the patent there
for"
The majority of the court CONSTITUTES
the word patent" to mean final GER
tihcate." The chief justice maintains
that the section is clear. distinct and
unambiguous, and that if congress in
tended that the exemption should
cease when the final certificate or
final receipt is issued. it would have
specified final receipt or final GER
tihcate" instead of patent"
Contrary Views.
State supreme courts have held
contrary views on the question. Some
have held to the literal, technical con,
struction of the section quoted, while
others, equally reputable. have ruled
that homestead lands are liable for
debts of entrymen contracted between
the date of issuance of the receivers
final receipt or certificate and the
date of the patent.
Among the decisions cited is one
by the late Justice Brewer of the u.
5. supreme court. while he was on the
Kansas bench. in which he held that
homestead lands became subject to
execution for debts after the issuance
OF final proof certificate. This de-
ccision was to the effect that "The
failure of the officers to issue the
patent at the time that it ought to
be issued does not effect the rights
of any person. The property becomes
the purchasers at the time he paws
for it. with the bare, naked legal title
only remaining in the government"
History of the Case.
In the case at bar, Rossi advanced
various sums OF money to Rudy be-
tween the date of the issuance of the
latter's final receipt and the issuance
OF his patent. He also advanced mon
" to Ruddy prior to the issuance of
the final receipt Rossi commenced
SUIT Tor recovery and was given judg-
nent in two separate units, one for
S93l ~ for advances prior to the date
NJ the final receipt, and another for
81 5:49 and costs. Attachments were
levied upon Ruddy's homestead and
executions were issued upon both
Judgment units. Ruddy thereupon
commenced action is the district court
Tor the purpose of removing the cloud
Of these judgments. attachments and
from his homestead The
action was sumbitted to the trial court
IN stipulation of facts and Judgment
vas rendered in favor of Ruddy from
which Rossi appealed to the supreme
court.
- Modified Judgment
The majority opinion of the court
holds. that the judgment for 1891. 81
Tor Obligations contracted for prior to
me date of the final receipts. is not a
ion or cloud upon Ruddy's home
stead. but the judgment for $21l5.4o.
tor money advanced subsequent to the
date OF the final receipt is a lien or
the land. Costs were awarded to
Rossi