Page:Harvard Law Review Volume 32.djvu/757

721 NOTES 721 Exemption of Federal Homestead from Liability for Debts Contracted Prior to Patent. — Section 2296 of the United States Revised Statutes provides: "No lands acquired under the provisions of this Act shall in any event become liable to tlie satisfaction of any debt or debts contracted prior to the issuing of the patent therefor." ^ Under the literal interpretation put upon this enactment in a recent decision by the United States Supreme Court,^ until the patent does issue, the claimant may hold the land and laugh at his creditors. Other courts have construed the statute in the same way.* But some courts have sagaciously held the land liable for debts contracted after the issuance of the final certificate, even though before the patent.'* The patent is the legal conveyance. Until it issues, the legal title is in the United States.* However, when the entryman has done everything necessary to entitle him to the patent, even before the patent issues he has a complete equitable title.® Indeed, many states have statutes per- mitting one in such a position to maintain ejectment.^ Congress cannot ^ Act of May 20, 1862. 12 Stat. L. 392. Except this provision, there is nothing in the federal laws indicating the remotest difference between lands patented under the Homestead Act and other privately owned lands within the state. See Buchser v. Morss, 196 Fed. 577, 579 (191 2). page 730. Riley, 29 Ore. 289, 45 Pac. 766 (1896); Sprinkle v. West, 62 Wash. 587, 114 Pac. 430, 34 L. R. A. (n. s.) 404 (1911); Grames v. Consolidated Timber Co., 215 Fed. 785 (1914). See In re Cohn, 171 Fed. 568, 570 (1909). The same court which laid down this literal interpretation in In re Cohn, supra, later held that the exemption must be confined to the debts of the entrywoman, and did not cover those of her husband contracted before patent. In re Parmeter's Estate, 211 Fed. 757 (1914). This construction, while obviously correct, is against the sweep- ing terms of the statute. In Brandhoeffer v. Bain, 45 Neb. 781, 64 N. W. 213 (1895), the debt was contracted in 1876 and the patent issued in 1878. The entryman conveyed away the land in 1885 and reacquired title in 1892. It was held that the land was stiU not liable. Accord, Van Doren v. Miller, 14 S. D. 264, 85 N. W. 187 (1901). Contra, De Lany v. Knapp, 1 1 1 Cal. 165, 43 Pac. 598 (1896). It is refreshing to find a court showing such a whole- hearted respect for a statute; but in playing this judicial Ruth to the legislative Naomi, the court reaches a result entirely foreign to the purposes of the Act. Leonard v. Ross, 23 Kan. 292 (1880); Johnson v. Borin, 7 Kan. App. 365, 54 Pac. 989 (1898); Flanagan v. Forsythe, 6 Okla. 225, 50 Pac. 152 (1897). See Kansas Lumber Co. V. Jones, 32 Kan. 195, 4 Pac. 74 (1884). " Bagnell v. Broderick, 13 Pet. (U. S.) 436 (1839); Gibson v. Chouteau, 13 Wall. (U. S.) 92 (1871); United States v. Schurz, 102 U. S. 378 (1880); Michigan Land and Lumber Co. v. Rust, 168 U. S. 589 (1897). See Gould v. Tucker, 18 S. D. 281, 100 N. W. 427 (1904). « Carroll v. Safford, 3 How. (U. S.) 441 (1845); Lytle v. Arkansas, 9 How. (U. S.) 314 (1850); Garland v. Wynn, 20 How. (U. S.) 6 (1857); Lessee of French v. Spencer, 21 How. (U. S.) 228 (1858); Lindsey v. Hawes, 2 Black (U. S.) 554 (1862); Wither- spoon V. Duncan, 4 Wall. (U. S.) 210 (1866); Simmons v. Wagner, loi U. S. 260 (1879); Deffeback v. Hawke, 115 U. S. 392 (1885); Benson Mining Co. v. Alta Mining Co., 14=; U. S. 428 (1891); United States v. Detroit Lumber Co., 200 U. S. 321 (1905); Gourley V. Countryman, 18 Okla. 220, 90 Pac. 427 (1907); Budd v. Gallier, 50 Ore. 42, 89 Pac. 638 (1907); S. S. Dale & Sons v. Griffith, 93 Miss. 573, 46 So. 543 (1908). ^ The language in some of the cases suggests that legal title passes with the certifi- cate and the patent is merely evidence. See Goodlet v. Smithson, 5 Porter (Ala.) 245, 249 (1837). This is an erroneous conclusion from the well-established doctrine that the patent when issued relates back to the inception of the rights of the patentee, so
 * Ruddy V. Rossi, No. 17, October Term, U. S. Sup. Ct. (1918). See Recent Cases,
 * Barnard v. Boiler, 105 Cal. 214, 38 Pac. 728 (1894); Wallowa National Bank f.
 * Struby-Estabrook Mercantile Co. v. Davis, 18 Colo. 93, 31 Pac. 495 (1892);