Muir v. Bosey , 23 Wyo. 46 ( 1915 )

Beard, Justice.

This is an action by the plaintiff in error against the defendants in error to enjoin the sale of certain real estate on execution. The judgment was in favor of the defendants, and plaintiff assigns error.

The facts of the case are not in dispute and are as follows : On January 25, 1907, Christina M. Fleming made desert entry for the land in question, and on March 29, 1912, submitted final proof of compliance with the requirements of the desert land laws, and on January 23, 1913, the P.egister and Receiver of the Land Office issued to heir a final receipt or certificate of purchase and payment for said lands, and on September 13, 1913, a patent was issued to her by the United States therefor. September 13, 1911, the defendant, Anna B. Bosey, recovered a judgment in the District Court against said Christina M. Fleming and another for $2803, and costs, and October 24,-1913, caused execution to be issued on said judgment and to be levied upon said land. To enjoin a sale on said execution this action was brought. August ri, 1913, said Christina M. Fleming conveyed - by quit-claim deed all of her equity, right, title and interest in said land to the plaintiff.

The principal question in the case is whether the judgment was a lien on the land prior to and at the time of the conveyance from Mrs. Fleming to plaintiff. If it was, then no other questions need be considered. The statute provides: “Lands and tenements, including vested interests therein, * * * not exempt by law, shall be subject to the payment of debts, and shall be liable to be taken on execution, and sold as hereinafter provided.’’ (Sec. 4683, Comp. St. 1910.) “Such lands and tenements, within the county where the judgment is entered, shall be bound for the satisfaction thereof from the first day of the term at which the judgment is rendered; * * * and all other lands, as well as goods and chattels of the debtor, shall be bound from the time they are seized in execution.” (Sec. 4684, id.) It is not material in this case whether Mrs. Fleming had such an interest in the land at the date of the judgment and before final proof, payment, and receipt of final certificate as would be subject to the lien of the judgment, as it is the law of this state that the lien of a judgment attaches to the after-acquired lands of the debt- or. (Coad v. Cowhick, et al., 9 Wyo. 316-325, 63 Pac. 584, 87 Am. St. Rep. 953.) It is with respect to the interest or title of the entry'man after final proof, payment, and issuance of final receipt or certificate, but before patent is issued that we are to enquire. Having complied with all of the requirements of the United States statutes, and the rules and regulations of the Interior Department, and having paid the purchase money in full, and having received from the proper officers the certificate of purchase, Mrs. Fleming was entitled to a patent for the land. 'She was not the owner of a mere equity, but was the owner of the full equitable title, and the government retained only the naked legal title; and that it held in trust for her. (Caldwell et al. v. Bush, 6 Wyo. 342, 45 Pac. 488.)' By her purchase and payment and by complying with all of the requirements of the statutes and regulations she acquired all the property the United States had in the land. (Arnold v. Grimes and Chapman, 2 Ia. 1; Cavender v. Heirs of Smith, 5 Ia. 157.) She was then possessed of a vested estate of inheritance in the land which the statute declares shall be subject to the payment of debts and liable to be taken and sold on execution and it is such lands that are bound for the satisfaction of the judgment. Plaintiff in error relies largely on some early Ohio decisions. But the statute of Ohio at the time those decisions were made was different from ours. The Ohio statute was amended in 1880, and as amended is identical with ours. (In Nat. Bank of Columbus v. Tennessee Coal, Iron and R. R. Co., 62 O. St. 564, 57 N. E. 450, the court said: “As the statutes of this state stood before the revision of 1880, ‘lands and tenements’ could be levied upon and sold to pay debts. (Sec. 420 of the Code of Civil Procedure, and the statutes prior thereto.) Under those statutes it was held that an equity could not be levied upon and sold to pay debts, and that a judgment did not create a lien upon an equity. (Baird v. Kirtland, 8 Ohio 21; Morris v. Way, 16 Ohio 469; Loring v. Melendy, 11 Ohio 355, and many other cases.) The statute was amended in 1880, Sec. 5374, so as to make ‘lands and tenements, including vested interests therein,’ subject to levy and sale for the payment of debts. Manifestly the interest which Mr. Patton retained in the surplus of the value of the real estate over and above the amount required to pay his note, and which was to be returned to him by the terms of the instrument, was a vested interest, and therefore subject to levy and sale to pay his debts. By the next section, 5375, it is provided that such ‘lands and tenements, within the countjr where the judgment is entered, shall be bound for the satisfaction thereof from the first day of the term at which the judgment is rendered.’ ‘Such lands and tenements,’ in this section, embraces the same as ‘lands and tenements, including vested interests therein,’ in the preceding section. It is, therefore, clear that the judgment in question became a. lien upon the vested interest of Mr. Patton in the lands covered by this instrument, from the first day of the April term, 1894, of the common pleas, that is, April 7, 1894, and that the lien of the judgment attached, by relation, under the statute, to such vested interest as he then had in said lands.” In a recent case in the Supreme Court of Oregon, Budd v. Gallier, Sheriff, et al. 50 Ore. 42, 89 Pac. 638, the question here under consideration was determined, and the distinction between a mere equitable interest or title, which can only be ascertained, established, or made available in a court of equity, and the title held by one who has complied with the law and has done all that is required to vest the complete title in said person, is clearly stated. By the statute of that state judgments were made a “lien upon all the real property of the defendant”; and it was held that after the issuance of the certificate of purchase the property was “real property” within the meaning of the statute and that the judgment was a lien thereon and superior to a deed of the land made the same day the final certificate was issued. The authorities in support of the holding are cited in the opinion. Our statute is rrjáu\e comprehensive than that of Oregon, and include® vested interests; and, in addition, we have another statute, Section 3632, Comp. St. 1910, which provides: “The certificate of purchase or payment issued by the receiver of any land office of the United States, * * * is proof of the title to the land described therein, equivalent to a patent against all except the United States or the holder of a patent from the United States.” Thus the statute recognizes the holder of such certificate not merely as the owner of an equitable interest in the land but as the absolute owner against all the world except the government or the holder of a patent from it. But aside from this statute we are satisfied that upon the facts of this case the judgment became a lien upon the land in question prior to the time the plaintiff in error received the quit-claim deed, and that the District Court correctly so held. The judgment of the District Court is affirmed. Affirmed.

Potter, C. J., and Scott, J., concur.