Lewis v. Wetherell

Supreme Court of Minnesota

Lewis v. Wetherell

31 N.W. 356, 36 Minn. 386, 1887 Minn. LEXIS 232

CourtSupreme Court of Minnesota

DecidedFebruary 2, 1887

StatusPublished

Cited by8 cases

This text of 31 N.W. 356 (Lewis v. Wetherell) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lewis v. Wetherell, 31 N.W. 356, 36 Minn. 386, 1887 Minn. LEXIS 232 (Mich. 1887).

Pincite

Opinion

Gileillan, C. J.

The defendant made a “homestead entry” upon a quarter-section of land under the laws of the United States, lived upon and improved the land, made the final proof, and on May 4, 1882, received the final certificate, entitling him to, and upon which he some time afterwards received, a patent for the land. May 6, 1882, he, with his wife, executed to plaintiff a mortgage upon the land, containing the usual power of sale and covenants of warranty, etc. February 13, 1885, plaintiff duly foreclosed the mortgage under the power, bid in the land at the sale, received the proper certifi[387]*387cate of sale from the sheriff making the same, and there was no redemption.

The defendant claims that the mortgage was void, under the provisions in section 2296, Eev. St. U. S., that “no lands acquired under the provisions of this chapter shall, in any event, become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor.” It was held in Townsend v. Fenton, 30 Minn. 528, (16 N. W. Rep. 421,) that an agreement made before the patent issued to convey the land after it should issue was valid; and in Moore v. McIntosh, 6 Kan. 39, that the party making the entry has, after he is entitled to a patent, but before it issues, a conveyable interest in the land; and in Nycum v. McAllister, 33 Iowa, 374; Cheney v. White, 5 Neb. 261; and Jones v. Yoakam, Id. 265,—that a mortgage executed by him, after he is entitled to a patent, but before it has issued, is valid. These cases we think were decided on a correct interpretation of the statute.

The provision we have quoted was manifestly intended for the protection of the party entering the land, to prevent its appropriation in invitum to the satisfaction of his debts, and not for the purpose of disabling him from dealing with it as his own, after he has acquired a right to it by complying with the terms of the law. The only restraint which the statute seems to impose on the party’s power of disposition applies only to a time before he makes his final proofs. See section 2291. The mortgage was therefore valid.

Judgment affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Gileillan, C. J.

The defendant made a “homestead entry” upon a quarter-section of land under the laws of the United States, lived upon and improved the land, made the final proof, and on May 4, 1882, received the final certificate, entitling him to, and upon which he some time afterwards received, a patent for the land. May 6, 1882, he, with his wife, executed to plaintiff a mortgage upon the land, containing the usual power of sale and covenants of warranty, etc. February 13, 1885, plaintiff duly foreclosed the mortgage under the power, bid in the land at the sale, received the proper certifi[387]*387cate of sale from the sheriff making the same, and there was no redemption.

The defendant claims that the mortgage was void, under the provisions in section 2296, Eev. St. U. S., that “no lands acquired under the provisions of this chapter shall, in any event, become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor.” It was held in Townsend v. Fenton, 30 Minn. 528, (16 N. W. Rep. 421,) that an agreement made before the patent issued to convey the land after it should issue was valid; and in Moore v. McIntosh, 6 Kan. 39, that the party making the entry has, after he is entitled to a patent, but before it issues, a conveyable interest in the land; and in Nycum v. McAllister, 33 Iowa, 374; Cheney v. White, 5 Neb. 261; and Jones v. Yoakam, Id. 265,—that a mortgage executed by him, after he is entitled to a patent, but before it has issued, is valid. These cases we think were decided on a correct interpretation of the statute.

The provision we have quoted was manifestly intended for the protection of the party entering the land, to prevent its appropriation in invitum to the satisfaction of his debts, and not for the purpose of disabling him from dealing with it as his own, after he has acquired a right to it by complying with the terms of the law. The only restraint which the statute seems to impose on the party’s power of disposition applies only to a time before he makes his final proofs. See section 2291. The mortgage was therefore valid.

Judgment affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

31 N.W. 356, 36 Minn. 386, 1887 Minn. LEXIS 232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-wetherell-minn-1887.

Opinion

Related

Cite This Page — Counsel Stack