Betts Naval Stores Co. v. Whitton

Shackleford, J. J. K. Whitton filed his bill in chancery against Willie E. Warren and Laura Warren, his wife, for the enforcement of a mortgage lien. Service by publication was obtained upon the defendants and a decree pro confesso was entered against Willie E. Warren for failure to appear, plead, answer or demur to the bill of complaint, as required by law. Laura Warren filed her answer to the bill and by order of court, the Betts Naval Stores Company, a corporation, was permitted to intervene and file a cross-bill against the complainant and the two defendants in the original suit. The complainant filed his answer to such cross-bill, to which the cross-complainant filed exceptions, one of which was sustained and the others overruled, whereupon the cross350 complainant filed its replication to such answer. The cause was referred to a special master to take and report the testimony therein. On the 15th day of February, 1915, the cause came on for a final hearing upon the pleadings and the testimony taken before the special master, and a final decree was rendered in favor of the complainant and against the defendants and the mortgaged premises ordered sold by the special master. It was further ordered, adjudged and decreed that as between the cross-complainant and the original complainant the equities were with the original complainant and his mortgage was held to be prior and superior to the mortgage of the cross-complainant. From such final decree the cross-complainant has entered its appeal to this court and has assigned several errors, all of which we have considered, and are of the opinion that the only assignment which merits treatment is the 5th, which is as follows: “5: The Court erred in allowing to the complainant J. K. Whitton those items charged by the complainant J. K. Whitton to the defendant W. E. Warren before the date of the issuing of the patent to the land in question from the U. S. Government.” The cross-complainant relies upon Section 2296 of the United States Revised Statutes, which is as follows: “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.” The evidence adduced clearly establishes that commutation final certificate had issued to Willie E. Warren upon his homestead entry for the lands described in the mortgage executed by Warren and his wife to Whitton, and that such mortgage was executed subsequent to the [351] date of such final certificate but prior to the issuing of the Government patent to the homestead lands. We have never had occasion to pass directly upon this point, though there is a strong intimation of our views in Walker v. Johnson, 53 Fla. 1076, text 1077, 43 South. Rep. 771, wherein we said: “Ordinarily the full beneficial interest and ownership vests in the homesteader upon receipt for final entry, and nothing remains of a perfect title but the mere routine act of signing the patent, which owing to congestion or other conditions in Washington usually requires many months and sometimes years.” In Smart v. Kennedy, 123, Ala. 627, 26 South. Rep. 198, it was held as follows: “A mortgage given upon Government land which had been entered as a homestead and for which the entryman had made final proof and received a certificate, but before there was an issuance of the patent, is valid notwithstanding section 2296 of the Revised Statutes of the United States, which provides that no Government lands acquired as homesteads shall, in any event, become liable to the satisfaction of any debt or contract prior to the issuance of the patent therefor; the purpose of said statute being the protection of the entryman, and to prevent the involuntary appropriation of the land to the satisfaction of debts incurred prior io the issuance of the patent.” We think that this is a correct statement of the law. See the authorities cited in the opinion and also those cited upon page 308 of 6 Federal Statutes Annotated. We call attention to the fact that Laura Warren also entered her appeal from the final decree, but has filed no brief in this court and her appeal may be considered abandoned. See Wall v. Shelley, 36 Fla. 357, 18 South. Rep. 856. [352] The decree must be affirmed. Taylor, C. J., and Cockrell and Ellis, JJ., concur. Whitfield, J., absent on account of illness.