Williams v. Sherman

LEE, J.

This is an appeal from an order granting a writ of assistance which directed the sheriff of Fremont county to remove appellants E. H. Sherman and Sina E. Sherman, husband and wife, who occupied the NE. % of sec. 13, T. 15 N., R. 42 E., B. M., under a government homestead entry, from said premises, and deliver possession of the same to respondent Nixon. Appellants have endeavored to have this' court review the right of the lower court to award respondent Nixon this writ upon two former hearings, the first in Williams v. Sherman, 34 Ida. 63, 199 Pac. 646, and again in Williams v. Sherman, 35 Ida. 169, 21 A. L. R. 353, 205 Pac. 259, and reference is made to those cases for a more complete statement of the facts and circumstances which give rise to the question presented by this appeal.

In March, 1906, appellant E. H. Sherman and Grace A. Sherman, then his wife, executed an instrument purporting to convey to the State Savings Bank of Butte, Montana, approximately 1,500 acres of land situate in Fremont county, Idaho. The description in said instrument included the premises above described, which were at that time a part of the unsurveyed public domain of the United States. Appellants claim that the insertion in that instrument of a description of this land was by inadvertence and a mistake on the part of the scrivener, but as we view the law applicable to this case, that fact, if true, is not material.

In 1914 the lands embraced in said homestead entry were first surveyed by the government, and the plat was filed in the Surveyor-general’s office in May, 1915. On September 29th following, appellant E. H. Sherman, who had subsequent to the execution of the instrument of conveyanee in 1906 married appellant Sina E'. Sherman, made a government homestead entry upon said land at the Blackfoot United States Land Office, and said appellants have continued to occupy said premises as a government homestead ever since said entry, except during such periods as they have been dispossessed by the several writs of assistance issued out of the ninth judicial district court, the latest of these alleged writs being issued by the judge of said court July 31st of this year, the validity of which writ is before us on this appeal.

Respondent Nixon claims title and the right of possession of said premises comprising appellants’ homestead entry by virtue of the instrument of conveyance executed by appellant E. H. Sherman and Grace A. Sherman, then his wife, in 1906, and the subsequent sale under an alleged decree of foreclosure entered in an action in said court, wherein F. D. Williams, as receiver of the State Savings Bank of Butte, Montana, was plaintiff, and appellant E. H. Sherman and Grace A. Sherman, then his wife, and also Sina E. Sherman, his present wife, were named as defendants, with others, in which action said instrument was held to be a mortgage, and was foreclosed for an indebtedness against the defendant Sherman. An order of sale was issued upon said decree, and all the lands described in said instrument executed in 1906, including appellants’ homestead entry, were pretended to be sold, and not having been redeemed, a sheriff’s deed for the same was thereafter issued to respondent Nixon. Respondent lays stress on the fact that personal service was had upon all of the Shermans in that foreclosure proceeding, and that they each severally failed to make, an appearance, and that judgment was entered against them by default after such service.

Appellants herein contend that all of said proceedings, in so far as it is attempted to affect the title to the premises in question, beginning with the inclusion of said property in said instrument of 1906 in which Sherman and his first wife were named as grantors, together with the subsequent foreclosure sale and issuance of a sheriff’s deed to the same, were void ab initio, because said lands at the time they were included in said instrument in 1906 were a part of the unsurveyed public domain of the United States, and ever since have continued so to be, subject only to the inchoate rights granted appellant Sherman and his present wife Sina E. Sherman, by virtue of their homestead entry thereon in September, 1915. In support of the facts upon which they base their claim, they now submit the judgment-roll in said foreclosure proceedings, which appears to establish the facts regarding the conveyance and subsequent proceedings by which the premises were pretended to be conveyed by sheriff’s deed to respondent Nixon. They also submit a certified copy from the Surveyor-general’s office of the plat of said township 15 north, range 42 east, Boise meridian, which shows that it was surveyed and said plat, “strictly conformable to the field-notes of the survey thereof on file in this office, which have been examined and approved,” was filed in the Surveyor-general’s office in Boise, Idaho, on June 11, 1914. They offer the certificate of the Register of the United States Land Office at Blackfoot that said plat was officially filed in said office on the 20th day of May, 1915, and that Edward H. Sherman made homestead entry No. 021099 on September 29, 1915, on said NE. % of Sec. 13, T. 15 N., R. 42 E., B. M. By a supplementary certificate of July 29, 1922, said Register certifies that said homestead entry was made on May 25, 1915, was allowed by the Commissioner of the General Land Office on September 27, 1915, by the local land office on September 28, 1915, and thereby became a valid entry of record; that on July 14, 1919, one Earl L. Nixon filed an application to contest said entry, and after a hearing before the Register and Receiver of said Blackfoot Land Office, an adverse decision to said contest was rendered; that an appeal was taken to the Commissioner of the General Land Office, and that after a decision against contestant by the General Land Office, an appeal was taken to the Secretary of the Interior, who affirmed the decision of the local land office and dismissed said contest on April 28, 1922; that on October 5, 1920, said Edward H. Sherman submitted final proofs in support of his said entry, and on June 5, 1922, final certificate was issued; and that the records of said Land Office show no adverse claim to the land above mentioned.

Subd. 9 of C. S., sec. 7952, art. 3 of Ch. 292, which designates how public writings may be proven, provides that documents in the departments of the United States government may be proved by the certificate of the legal custodian thereof. We think this statute makes this proof offered by appellants competent as to the record facts shown by these certified records.

At the time of making the order for the issuance of this writ, appellants appeared before said court and resisted its issuance, setting up all of the foregoing facts, with others deemed not necessary to refer to, and established the character of their title to the premises as herein recited by offering, without objection, the certified records from the Surveyor-general’s office for the district of Idaho and the certificates from the United States Land Office at Blackfoot, the entire record being brought to this court by a duly settled bill of exceptions.

The only question presented by the record is this: Was the title to the lands in question, as against the United States or any person claiming under it, in any manner affected by the inclusion of these lands in an attempted conveyance made by appellant Sherman in 1906, and the subsequent foreclosure proceedings and attempted sale of the same by the sheriff under the decree of the state court, as hereinbefore stated? That the United States cannot be divested of its title or have the same clouded in any manner without its consent, manifested by its laws or treaty-making power, unless the same be done by conquest of a superior governmental power, which of course in this case does not exist, is such an axiomatic proposition that it does not present a debatable question. Sovereignty is defined as: “The union and exercise of all human power possessed in a state; it is a combination of all power; it is the power to do everything in a state without accountability — to make laws, to execute and to apply them, to impose and collect taxes and levy contributions, to make war or peace, to form treaties of alliance or of commerce with foreign nations, and the like.” (Story, Constitution, sec. 207; Bouvier’s Law. Diet., p. 3096.)

That a sovereignty cannot lose title to its territory without its consent, except by conquest, is an invariable and necessary attribute of such sovereignty. Respondent’s contention that the title to these premises, which at the time composed a part of the unsurveyed public domain of the United States, passed or was in some manner clouded by the pretended conveyance of Sherman and his wife in 1906 to the State Savings Bank, which attempted conveyance was without the knowledge, much less the consent of the government, or that the government’s title was thereby in any manner affected so that it could not thereafter at will grant such premises under any of its public land laws, or by any other method that the Congress might deem proper, to any of its subjects or citizens, is a contention so unwarranted as not to merit consideration. Not only was the alleged conveyance absolutely null and void, but every step taken thereafter by the proceedings in the state court to foreclose and sell said lands, and the subsequent alleged writs of assistance granted under said proceedings, were null and void, and every step taken to carry out such proceedings was a naked trespass, without any authority or warrant in law.

This case is not within that class of cases where an entry-man, after an entry upon the public domain of the United States, seeks to alienate or in some manner encumber his interest before he has earned patent to the same under the requirements of the federal laws and regulations. A number of" leading cases bearing upon that class of questions are referred to in the specially concurring opinion in Williams v. Sherman, 35 Ida., at 174, 21 A. L. R. 353, 205 Pac., at 260. One of the latest by the federal supreme court is Ruddy v. Rossi, 248 U. S. 104, 8 A. L. R. 843, 39 Sup. Ct. 46, 63 L. ed. 148, which overrules a former decision of this court by holding that the exemption of homestead lands under U. S. Rev. Stats., see. 2296 (U. S. Comp. Stats. Ann., see. 4551, 8 Fed. Stats. Ann., p. 575), from liability for the satisfaction of any debt contracted prior to the issuing of the patent, extends to debts incurred by a homesteader after obtaining the receiver’s final receipt and certificate. By a parity of reasoning, it is clear that if an entryman on a government homestead cannot encumber his interest in such entry, a fortiori he could not by any act of his in attempting to convey the same, nearly ten years prior to making such entry, so encumber the government’s title that it could not thereafter grant to any citizen, including himself, a right to make a homestead entry on the same.

(March 1, 1923.)

The judgment upon which this writ of assistance was issued being as against the title of the government to the lands embraced in this homestead entry void, it is subject to direct or collateral attack by anyone claiming under the government, and when such facts are established by competent evidence, as we hold has now been done, the judgment and all proceedings subsequently had thereunder are void, in so far as they attempt to affect these premises. The cause is reversed, with directions to the lower court to quash the writ and dismiss the proceedings. Costs awarded to appellants.

Budge and Dunn, JJ., concur.