Dissenting.
I am unable to concur in the conclusion reached by the majority of the court. The main question for determination in this ease is whether the laud acquired by a homesteader under the homestead laws of the United States is liable to Seizure and sale for the satisfaction of a debt contracted after final proof has been made by the homesteader and before patent issues.
The decision of this question depends upon the proper construction of the provisions of sec. 2296, Rev. Stats, of the United States, which is as follows:
*387“No lands acquired under the provisions 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 therefor.”
The chapter of the United States statutes in which said section is found includes the provisions enacted by Congress for the entry of homesteads on the public domain of the United States. By the federal constitution the Congress of the United States is expressly vested with the power of making all needful rules and regulations respecting the public domain, and may dispose of the public lands of the United States on such terms and conditions as in its judgment it may deem advisable; and one of the rules and regulations provided by Congress is that contained in said section 2296.
It seems to me that said section is so plain, clear, distinct and unambiguous in its language as not to require any construction whatever. The conditions and limitations placed upon the disposition of such lands must be derived from the language Congress has used in fixing or limiting such conditions, provided such language is plain and unambiguous. Courts cannot legislate conditions in or out of the grants which Congress has made of the public lands. It seems to me there is no room for judicial construction of said section-.
That section prescribes one of the conditions upon which such lands should be conveyed to the homesteader, namely, upon the condition that the lands acquired under its provisions should not be liable for any debts contracted prior to the issuing of the patent therefor. It thus clearly and distinctly fixes the exact time at which exemptions shall cease and the conditions become ineffective, and that is when the patent shall issue.
The majority of the court construes the word “patent” in said section to mean “final certificate.” Certainly if Congress had intended that the exemption there provided should cease when the final certificate or final receipt was issued, it would have used the words “final receipt” or “final certificate” instead of the word “patent.” Is it too much to assume that Congress was familiar with the law it had enacted *388for the disposition of the public lands; that it clearly understood the distinction between a final certificate and a patent?
It seems to me the majority has refused to give to the language used in said section its plain, natural and ordinary meaning, but has construed the word “patent” to mean “final certificate.”
The opinion in the case of Barnard v. Boller, 105 Cal. 214, 38 Pac. 728, contains my views upon the question under consideration, and the proper construction of the provisions of said sec. 2296. That case refutes the application of the doctrine of relation in such a case as the one at bar, and holds that under the provisions of said section the condition or circumstance of the equitable title is not made the criterion of liability for antecedent debts. That section clearly provides that the land shall not in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor. The date of the issuing of the patent is made the point of time which divides the liability from the nonliability of the land. It is this event or act which determines the question of liability and not the title or the question of relation as applicable to the holder thereof which must be taken as a criterion, and in the last cited case it is stated: “Congress has in plain and direct terms exempted the land from the debts of its owner or claimant contracted up to the happening of a specific event, viz., ‘to the issuing of the patent therefor. ’ ’ ’
The majority quotes from Flanagan v. Forsythe, 6 Okl. 225, 50 Pac. 152. I am unable to agree with the reasoning in that ease, and believe it to be faulty in many respects and that it utterly fails- to properly construe said sec. 2296. In that case Mr. Justice Tarsney filed a dissenting opinion which, in my view of the matter, utterly demolishes the arguments and reasoning used by the majority in that case.
The supreme courts of Kansas, Oklahoma and Colorado hold that the homestead is liable for the debts incurred after the issuance of final receipt and before the issuance of the patent, while Arizona, Arkansas, California, Minnesota, Missouri, Nebraska, Oregon, South Dakota, Washington and *389Wisconsin all hold that said sec. 2296 means just what it says, and that the homestead entry is not liable for the payment of the debts of the homesteader contracted prior to the issuance of the patent.
The United States court has construed said see. 2296, and in In re Cohn, 171 Fed. 568, 570, referring to said section, the court said: “It is the issuance of the patent which fixes the time when the property shall become liable to subsequent debts of the homesteader.”
In Grames v. Consolidated Timber Co., 215 Fed. 785, the court, speaking through Wolverton, District Judge, after quoting said sec. 2296, said:
“This provision has received a literal construction, and comprises any debt accruing or existing prior to the date of the issuance of the patent, and, although in some cases affecting the title to the homestead, where the issuance has relation back to the issuance of the final certificate, the clause can bear no such interpretation, as it applies to the exemption designed for the benefit of the homesteader.”
See, also, Seymour v. Sanders, decided by Dillon, Circuit Judge, 3 Dill. 437, Fed. Cas. No. 12,690.
Not a single federal case has been called to my attention where the construction of said sec. 2296 was involved, where the federal courts have not held that the issuance of the patent is the date fixed when the land of the homesteader shall become liable for his subsequent debts, and not one of them holds that the land becomes liable for such debts upon the issuance of the receiver’s final certificate.
The judgment of the trial court ought to be affirmed.
Petition for rehearing denied.