Barnard v. Boller

Searls, C. This is an action to quiet the title of plaintiff to a quarter section of land, fully described in the complaint and situate in the county of Tulare.

The cause was tried by the court without a jury, written findings filed, upon which plaintiff had judgment, quieting his title as prayed for in his complaint.

Defendant appeals from the judgment, and the case is presented upon the judgment-roll without a statement or bill of exceptions.

The findings show that on the twenty-sixth day of September, 1884, plaintiff entered the land in question under the homestead laws of the United States, at the United States land-office at Visalia, California. On the seventeenth day of November, 1890, plaintiff made the proper proofs under his homestead entry and received from the receiver a receipt in due form, entitling him to a patent for said land, which patent in due form [217]issued to him from the government of the United States February 23, 1892.

' After the issuing to plaintiff of said receipt, viz., after November 17, 1890, but before the patent issued, plaintiff became indebted to M. Schwartz & Son for goods, wares, and merchandise sold and delivered by them to said plaintiff, in the sum of eight hundred and sixty dollars and seventy-eight cents, for which said firm of Schwartz & Son brought an action in due form, and obtained a judgment against plaintiff.

On the twenty-third day of January, 1892, said Schwartz & Son caused an execution to issue upon their judgment against this plaintiff, which was levied upon the land in question, under which execution the land was sold, purchased by Schwartz & Son, who in due time received a sheriff’s deed therefor, and thereafter conveyed the land to the defendant and appellant herein.

The only question presented by the appeal is, Was the land subject to levy and sale upon a debt contracted by respondent after he had made his final proofs and received his receipt but before the patent actually issued?

Section 2296 of the Revised Statutes of the United States provides that “no lands acquired under the provisions of this chapter (chapter on homesteads and providing for acquiring title thereto) shall in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor.”