Williams v. Sherman , 35 Idaho 169 ( 1922 )

LEE, J.,

Specially Concurring. — I concur with Mr. Justice McCarthy in holding that the writ of assistance should be quashed for the reasons expressed in the foregoing opinion. This cause was before the court in Williams v. Sherman, 34 Ida. 63, 199 Pac. 646, and from the statement of facts therein contained, which are again set up by the affidavit of E. H. Sherman on this appeal, the ultimate question-which appellant is' endeavoring to have determined remains undecided, because in neither of these appeals has the record presented that question in such manner that it could be determined. However, in both appeals it has been exhaustively briefed and argued by counsel for both parties, and in view of this I deem it proper to say that when these facts are shown by competent evidence, in a proper proceeding, in my opinion the judgment in the foreclosure proceedings, in so far as it affects the NE. % of sec. 13, T. 15 N., It. 42 E., B. M., must be held void.

It appears that the conveyance upon which the foreclosure proceedings were based was executed by appellant and Grace A. Sherman, then his wife, in 1906, and that in so far as such conveyance or the foreclosure proceedings relates to the above-described premises, they were, at the time of said conveyance, a part of the unsurveyed public domain of the United States. They were not surveyed until 1914, and the plat was not filed in the surveyor-general’s office until May, 1915. In September of that year appellants made a homestead filing thereon, and have since complied with all of the requirements of the homestead law. The foreclosure proceedings were had after the homestead entry was made, and appellants were made parties to such action, constructive service was had upon them, and they defaulted. A decree was entered therein September 22, 1916, purporting to foreclose these premises, with others, and an attempted sale was had under said decree. Bespondent Nixon purchased the sheriff’s certificate of sale and afterward obtained a sheriff’s deed, upon which he bases this application for a writ of assistance. So far as the record in either appeal discloses the facts, the foreclosure proceedings were regular on their face, and appellants now seek to challenge their validity by showing by way of affidavit these facts; that is, that their said homestead entry was inadvertently included in the said deed of conveyance executed by appellant Sherman and Grace A. Sherman, then his wife, and that because of these facts set up in this affidavit, the attempted conveyance was void, and all subsequent proceedings based thereon are a nullity.

“The only question on the application for a writ of assistance being whether the decree has or has not been complied with, the defendant cannot in his answer renew the contest as to title which has already been decided, or set up any matters upon which he has been concluded by the decree. .... This rule, however, does not preclude defendant from raising the question of jurisdiction of the court which rendered the decree.” (2 E. C. L., p. 739, see. 13.)

We think it elementary, however, that unless the want of jurisdiction in a foreclosure proceeding affirmatively appears from the judgment-roll, the defendant cannot after the entry of judgment attack its validity by affidavits which set up matter aliunde the record, which should have been interposed as a defense at the trial. If this could be done, he might in every case default, and after judgment, come in and establish his defense by ex parte affidavits.

Courts may take judicial notice of public and private official acts of the legislative, judicial and executive departments of the state and of the United States. (C. S., sec. 7933.) But they cannot take judicial notice of when lands are a part of the unsurveyed public domain, or when they cease to be a part of such public domain. That must be shown by the official records of the government, and no attempt is made in this proceeding to show these facts otherwise than by the affidavits above mentioned.

Eespondent contends, and has cited many decisions which seem to support the contention, that a homestead entryman under the federal statutes may, after entry and before patent, mortgage his interest in such land. The only federal ease cited is Hafemann v. Gross, 199 U. S. 342, 26 Sup. Ct. 80, 50 L. ed. 220, but an examination of this ease will show that the only question there decided was to the effect that an agreement by a pre-emptor in consideration of the advance of a portion of his expenses to be incurred in per-i fecting his entry, and to pay a specified sum for locating him on the land, and a further amount to be determined by the proceeds of any sale which he might make after acquiring title, is not invalid under U. S. Rev. Stats., sec. 2262, requiring every pre-emptor to make an affidavit before entry that “he has not settled upon and improved said land to sell the same on speculation, but in good faith to appropriate to his own exclusive use, and that he has not directly or indirectly made any agreement or contract in any way or.in any manner with any person whatsoever by which the title which he might acquire from the government should inure in whole or in part to the benefit of any person except himself.” Mr. Justice Brewer, in delivering this opinion, does not go further than to hold that this federal statute does not render a contract void to pay out of the proceeds of a sale of the land after patent an advancement made to him to enable him to secure patent, no lien being created. He cites with approval Anderson v. Carkins, 135 U. S. 483, 10 Sup. Ct. 905, 34 L. ed. 272, wherein that court reverses the supreme court of Nebraska and holds an agreement on the part of a homestead entryman to convey a part of such homestead, after he has secured patent, void, notwithstanding such agreement was based upon a valid consideration.

In Anderson v. Carkins, supra, the court quotes with approval the case of Mellison v. Allen, 30 Kan. 382, 2 Pac. 97, which is a decision by Justice Brewer when he was a member of that court, wherein it is said: “Courts of equity have always exercised a discretion in enforcing the specific performance of contracts to convey, and it would be strange indeed if a court of equity lent its aid to enforce the performance of a contract founded upon perjury and entered into in defiance of a clearly expressed will of the government.”

It should also be noted that in the Hafeman case, while the majority opinion holds that the contract in that case was not absolutely void, so that the promise to pay money upon the sale of the premises by the patentee could not be enforced, three of the justices held that it was absolutely void.

In Seymour v. Sanders, 3 Dill. 437, Fed. Cas. No. 12,690, Dillon, J., in construing the act of May 20, 1862, c. 75, sec. 4 (U. S. Rev. Stats., sec. 2296; U. S. Comp. Stats. Ann., see. 4551, 68 Fed. Stats. Ann., 2d ed., p. 575), held that title to all public lands must pass and vest according to the laws of the United States, and that an agreement of a homesteader to convey any part of such entry prior to patent was invalid.

In In re Cohn, 171 Fed. 568, it is held that a homestead acquired on public land is not liable to the satisfaction of any debt contracted prior to the issue of a patent therefor, and that the issuance of patent and not the issuance of a final receipt to the homesteader entitling him to a patent fixes the time from which a property may become liable for the subsequent debts of the homesteader.

Grames et al. v. Consolidated Timber Co., 215 Fed. 785, in construing sec. 2296, providing that no land acquired thereunder shall in any manner become liable for the satisfaction of any debt acquired prior to the issuing of the patent, holds that said section is to be construed literally, and the exemption is not waived by the failure of the debtor to claim it before judgment and sale, but a sale or judgment for a debt contracted before the issuance of the patent, although after the final certificate, is void.

If any doubt ever should have arisen with regard to the inability of a homesteader to alienate or suffer to be alienated a homestead entry, prior to the issuance of patent, it should be set at rest by Ruddy v. Rossi, 248 U. S. 104, 39 Sup. Ct. 46, 63 L. ed. 148, 8 A. L. R. 843, wherein the United States supreme court, speaking through Justice McReynolds, in reversing a decision of this court, holds that the language of this section is clear, and there is no adequate reason for thinking that it fails precisely to state the law-makers’ intention.

We think a careful examination of the several federal eases above cited effectually disposes of all of the authorities relied upon by respondent as upholding his contention that any interest of the appellant in this homestead .entry could have passed by virtue of the mortgage given in 1906 and the subsequent location of these premises as a homestead nine years later. "When it is shown by competent evidence in a proper proceeding that the facts set forth in said affidavit are true, the judgment upon which this writ of assistance is based must be held void, in so far as it attempts to create any lien against appellants’ homestead entry, and it must be held that a writ of assistance to dispossess appellants could not issue.

Budge and Dunn, JJ., concur.