NICHOLS & SHEPARD CO. v. BISHOP, Sheriff.

(Supreme Court of Oklahoma. Sept. 3, 1902.) CHATTEL MORTGAGES-DEFECTIVE DESCRIPTION-HOW CURED-TAKING POSSESSION OF PROPERTY-REPLEVIN DEFENDANT'S AT

TACHMENT LIEN-SPECIAL INTEREST-ALTERNATIVE JUDGMENT-AMOUNT.

1. Where a chattel mortgage is given to secure an indebtedness, and the mortgage imperfectly describes the property, so that there is a defect in the description in the mortgage, the defect will be cured if the mortgagee subsequently takes possession of the property, as against those who have not acquired any rights, or whose liens have not attached until after the mortgagee has taken possession.

2. In such a case, no particular mode of taking possession is necessary. No particular ceremony or formality is required. There must be, however, an actual transfer of the possession and control of the property, so far as the same is subject to possession and control.

3. In an action of replevin, where the plaintiff claims the right of possession by virtue of a chattel mortgage, and the defendant claims the right of possession by virtue of an attachment lien, the defendant's interest in the property is but a special interest, and is measured by the amount necessary to satisfy the lien created by the writ, and in no event can an alternative judgment be for an amount exceeding his lieu, where the property cannot be returned.

(Syllabus by the Court.)

Error from district court, Garfield county; before Justice John L. McAtee.

Replevin by the Nichols & Shepard Company against James Z. Bishop, as sheriff. Judgment for defendant, and plaintiff brings error. Reversed.

Action for replevin by plaintiff in error against the defendant in error in the district court of Garfield county to recover 600 bushels of wheat of the value of $300, upon which plaintiffs claimed a mortgage lien. The answer was a general denial, and that the sheriff was in possession of the property under and by virtue of a writ of attachment, and also that the property covered by the plaintiff's mortgage was not the property attached.

W. W. Schwinn, for plaintiff in error. Percy Glaze, for defendant in error.

PANCOAST, J. This was an action brought by the plaintiff in error in the disTL See Chattel Mortgages, vol. 9, Cent. Dig. § 445.

trict court of Garfield county against the defendant in error to recover 600 bushels of wheat, which they claimed the right of possession of under and by virtue of a chattel mortgage given by one W. H. Scritchfield, the owner of the property. The defendant claimed to hold the property under and by virtue of a writ of attachment issued against the property of W. H. Scritchfield.

There are numerous assignments of errors arising at the trial of the case, and upon the instructions given, and those refused, by the court. We have examined the record in detail, as well as the briefs of counsel, and, having come to the conclusion that the case must be reversed, we therefore deem it only necessary to consider such questions as may be instructive at the new trial which must be had.

At the trial below the plaintiffs claimed under and by virtue of a chattel mortgage, which described the wheat as being 1,400 bushels of wheat in the bin, on the S. E. of section 18, township 20 N., range 4, in Garfield county, Okl., and the oral evidence showed that the wheat mortgaged was in fact not in the bin when the mortgage was executed, but was in the shock, or partially in the shock, and that the agreement between the mortgagor and mortgagee was that the wheat should be threshed immediately, and put in the bin. The defendant proceeded upon the theory that the mortgage, as to the attachment creditors, was void, and that the wheat levied upon was not the wheat described in plaintiff's mortgage. At the trial the plaintiffs undertook to show that they had taken possession of the wheat prior to the levy of the attachment, and, having reduced the same to their possession, the defect in the description in the mortgage was cured, as against the attaching creditors. The defendant claimed that the acts of the plaintiffs in attempting to take possession of the wheat were not sufficient, and that they had not changed the possession or changed the legal conditions.

One of the instructions which the court refused to give, which is complained of by the plaintiffs in error, and which may be presented upon the new trial, was: "If you find from the evidence that W. H. Scritchfield executed the mortgage introduced in evidence in this case, and it was intended by said mortgage to cover (wheat) levied upon by the defendant, and that the plaintiff had taken possession of the wheat before the attachment was levied, then in that case your verdict should be for the plaintiff." This instruction was refused, and, taken alone, was probably properly refused, but it states the law when applied to the evidence, so far as it goes, and should have been given, along with other instructions applicable to the case. It was intended to cover the proposition of law that where a mortgage is given upon property, which mortgage fails to fully describe, or imperfectly describes, the property, so that

there was a defect of description in the mortgage in that regard, the defect is cured by the mortgagee subsequently taking possession, as against parties who have not acquired any rights, or whose liens have not attached until after the mortgagee has taken possession. Gagnon v. Brown (Kan.) 27 Pac. 104; Bank v. Sargent, 20 Kan. 576; Dolan v. Van Demark (Kan.) 10 Pac. 848; Cameron v. Marvin, 26 Kan. 612.

Several other instructions along this line were asked and refused, but as the same error is not likely to occur again, we will not discuss them here.

The court gave the following instruction, which we think does not correctly state the law of the case: "The jury is instructed that if they believe that plaintiffs took possession of the wheat replevied before the order of attachment was served, and before the defendant sheriff took possession of the same, that such possession on the part of plaintiffs must be open, notorious, and such as to apprise the world that they were in possession, and, unless you so find, it is your duty to find for the defendant; whether there was a sufficient change of possession, is for you to determine." We think that under the law no particular mode of taking possession was necessary. No particular ceremony or for mality was required. And as to the property involved, it was not necessary that an actual manual delivery be had, because the property was not of such a character that actual manual delivery could be made. The possession, however, to be valid in such a case as the one at bar, in order to cure a defect in the description in the mortgage, must have been an actual transfer of possession and control, in so far as the same could be taken possession of and controlled. The question of possession, as between the parties hereto, does not turn upon the question of openness or notoriety. Bank v. Sargent, supra.

Another instruction which we think may have misled the jury was: "The jury is instructed that, in order for the plaintiffs to recover in this action, they must establish, by a preponderance of the evidence, that the wheat replevied in this action is the same wheat described in the mortgage given by William H. Scritchfield to these plaintiffs, and, unless you so find, it will be your duty to find for the defendant." The word "described," in this instruction, should not have been used. Some other word that would have shown that the wheat replevied in this action was the same wheat covered by the mortgage should have been used, or at least the property intended to be covered by the mortgage. It was admitted that the description in the mortgage was not correct. The wheat, of course, was not the wheat described, but was the wheat sought to be described in the mortgage. This error runs through two or three instructions, which follow this one.

The most serious question, however, and

one upon which the case should be reversed, if upon no other, is that the defendant failed to show what his interest was in the wheat replevied. The justification set up in the answer was that he held the wheat under and by virtue of an attachment. At the trial of the case the only evidence offered along that line was that the attachment was issued out of the probate court, and placed in his hands, and upon which he made the levy. The attachment order was not introduced in evidence, nor was there any evidence showing the amount of the defendant's claim against the attachment debtor, nor can it be determined, from an examination of the record, what the attaching creditors' interest was. Whether it was for the value of the wheat, or more or less, we are unable to say. Whether or not there was a judgment rendered at the time of the trial of this case, we do not know. If there had been, then the judgment should have been introduced in evidence, in order to determine what the attaching creditors' interest was. If the judgment had not been rendered, then at least the order of attachment should have been introduced, in order to show what the attaching creditors' claim was, and in order to show their interest. The defendant was only an officer, and his interest could not have been greater than was created by the writ; in other words, the value of his special interest should have been measured by the amount necessary to satisfy the lien created by his writ. Shinn, Repl. § 631. Instead of the interest of the defendant being shown, the case was tried upon the theory that if the defendant was entitled to recover, he was entitled to recover the whole of the property, or its entire value, when, as a matter of law, he was entitled to recover the possession of the property, or the value of his special interest, in no event to exceed his special lien in case the property could not be returned.

For the reasons stated, the judgment must be reversed, and the cause remanded to the court below for a new trial.

BURFORD, C. J., and IRWIN and GILLETTE, JJ., concur. HAINER and BURWELL, JJ., concur in the result. BEAUCHAMP, J., absent.

(12 Okl. 155)

McMICHAEL et al. v. MURPHY et al. (Supreme Court of Oklahoma. Sept. 2, 1902.)

PUBLIC LANDS-HOMESTEAD ENTRY-EFFECT -ENTRY ON LAND-TRESPASS.

1. A homestead entry valid upon its face constitutes such an appropriation and withdrawal of the land as to segregate it from the public domain, and precludes it from subsequent homestead entry or settlement until the original entry is canceled or declared forfeited, in which case the land reverts to the government as a part of the public domain, and becomes again subject to entry under the land laws of the United States.

2. One who makes settlement on a tract of land while it is covered by the homestead entry of another is a mere intruder, a naked, unlawful trespasser; and no right, either in law or equity, can be founded thereon.

(Syllabus by the Court.)

Error from district court, Oklahoma county; before Justice B. F. Burwell.

Action to declare a resulting trust, by William T. McMichael against Samuel Murphy and others. Judgment dismissing the action entered on sustaining of a demurrer to the petition, and plaintiff brought error. After the proceedings in error were perfected, plaintiff in error died, and the suit was revived in the names of his heirs as plaintiffs in error. Affirmed.

The material facts in this case are undisputed, and are substantially as follows: On April 23, 1889, Ewers White made homestead entry No. 6 on the S. W. 14 of section 27, township 12 N., range 3 W., at the United States land office at Guthrie, Okl. On April 24, 1889, Charley. J. Blanchard made homestead application for the same tract of land. On May 1, 1889, Vestal S. Cook made application for the same tract of land. The applications of Blanchard and Cook were rejected, because of conflict with White's entry. On April 27, 1889, Blanchard filed an affidavit of contest, charging that White had entered the territory of Oklahoma prior to 12 o'clock noon, April 22, 1889, in violation of the act of congress approved March 2, 1889, and the president's proclamation issued pursuant thereto. On May 1, 1889, Cook also filed an affidavit of contest, attacking White's entry, alleging that he was disqualified to enter said lands, and also alleging that Blanchard was disqualified from entering said lands for the reason that he had entered upon said lands prior to 12 o'clock noon, April 22, 1889, in violation of the federal law. On July 16, 1889, the cause was tried before the local land office, and the register and receiver of said office recommended the cancellation of White's entry, and dismissed the contests of both Blanchard and Cook. All parties appealed from this decision to the commissioner of the general land office. And on March 7, 1890, the decision of the local land office was affirmed. From this decision an appeal was taken to the secretary of the interior. On November 29, 1890, while the cause was pending before the secretary of the interior, White relinquished his homestead entry, and the defendant Samuel Murphy entered said tract of land; and on July 21, 1891, the secretary of the interior affirmed the decision of the commissioner of the general land office. Blanchard v. White, 13 Land Dec. Dep. Int. 65. On or about June 3, 1889, while White's homestead entry was still intact, the plaintiff in error William T. McMichael entered upon said tract of land with the view of establishing his residence thereon, and initiating a homestead right to said land. On July 21, 1889, he made application to the local land office

to enter said tract of land, tendering the fees prescribed by law, which application was rejected by the local land office, for being in conflict with White's entry. No appeal was taken from the rejection of this application to the commissioner of the general land office. On August 31, 1889, McMichael again appeared before the local land office and tendered his application, together with the fees. to enter said tract of land as a homestead. This application, it appears, was received by the local land officers, and was suspended pending the final decision of the contest of White, Blanchard, and Cook. On the same day, to wit, August 31, 1889, McMichael, the plaintiff in error, filed a contest or protest, alleging that he had made settlement on the land on June 3, 1889, and had lived thereon in a tent with his family until August 2, 1889, when he was ejected therefrom by the military at the instance of White; and that his rights were superior to those of White, Blanchard, and Cook, all of whom were disqualified by reason of having entered the territory during the period prohibited by law; that he made the application to enter said tract on June 3d, which was rejected because it conflicted with White's entry; that he was the only qualified settler on the tract entitled to make entry thereof, and he protested against any other person being permitted to enter said land. On February 15, 1892, a hearing was had before the land office between the plaintiff in error McMichael and the defendant in error Murphy. The local land office decided the case in favor of Murphy and against McMichael, and the latter appealed to the general land office. On January 18. 1893, the commissioner of the general land office affirmed the decision of the local office. From that decision McMichael appealed to the secretary of the interior, and on February 25, 1895, the secretary of the interior affirmed the decision of the commissioner of the general land office. The facts are clearly and fully stated by the secretary of the interior in McMichael v. Murphy, 20 Land Dec. Dep. Int. 147. A patent having been issued by the United States to Murphy for said land, this action was brought in the district court of Oklahoma county by the plaintiff in error William T. McMichael against Samuel Murphy, defendant in error, and his grantees, to declare a resulting trust, and that the defendants be decreed to hold the legal title to the land in trust for the use and benefit of the plaintiff in error. To the plaintiff's petition the defendants interposed a demurrer on the ground that said petition did not state facts sufficient to constitute a cause of action; the plaintiff's claim being that the secretary of the interior has misconstrued and misapplied the law. The district court sustained the demurrer to the petition, and thereupon, the plaintiff having elected to stand upon said petition, the court dismissed the plaintiff's cause of action; from which decree of dismissal the plaintiff in error brought

the cause here for review. Since the cause has been filed in this court, the plaintiff in error, William T. McMichael died, and at this term of court the cause has been revived in the name of his legal heirs.

Clark & Bryan, for plaintiffs in error. J. H. Everest, for defendants in error.

HAINER, J. (after stating the facts). It was contended before the land tribunal, as it is here by the plaintiffs in error, that the homestead entry of White was absolutely void, and therefore McMichael had a lawful right to enter upon said land, and make settlement thereon, and that he acquired an inceptive right as a homestead claimant by virtue of such settlement, notwithstanding the fact that White's entry was still of record. The secretary of the interior held that the homestead entry of White was not void, but voidable, and while it remained of record the land was segregated from subsequent entry or settlement. And this has been the uniform ruling of the land tribunal. In McMichael v. Murphy, 20 Land Dec. Dep. Int. 147, the secretary of the interior, in passing upon this question, uses the following language: "McMichael urges strenuously that White's entry was void, and asks a specific ruling upon that proposition. Although White entered the Oklahoma country during the prohibited period, yet his homestead entry was prima facie valid. Its invalidity had to be established by extraneous evidence, and a judgment as to its illegality pronounced by a competent tribunal. Had that never been done, the tract covered by said entry would have remained forever segregated from the public domain; so far, at least, as the unquestioned legality of the entry itself could have accomplished that fact. Hence it cannot be regarded as void, but voidable only." The supreme court of the United States has held that a homestead entry, valid upon its face, constitutes such an appropriation and withdrawal of the land as to segregate it from the public domain, and precludes it from subsequent homestead entry or settlement until the original entry is canceled or declared forfeited, in which case the land reverts to the government as a part of the public domain, and becomes again subject to entry under the land laws of the United States. And this doctrine has been announced in such a number and variety of cases by our court of last resort that it may now be regarded as one of the fundamental principles underlying the land system of this country. Chotard v. Pope, 12 Wheat. 586, 6 L. Ed. 737; Wilcox v. Jackson, 13 Pet. 498, 10 L. Ed. 264; Carroll v. Safford, 3 How. 441, 11 L. Ed. 671; Witherspoon v. Duncan, 4 Wall. 210, 18 L. Ed. 339; Railroad Co. v. Dunmeyer, 113 U. S. 629, 5 Sup. Ct. 566, 28 L. Ed. 1122; Railroad Co. v. Whitney, 132 U. S. 357, 10 Sup. Ct. 112, 33 L. Ed. 363; Sturr v. Beck, 133 U. S. 541, 10 Sup. Ct. 350, 33 L. Ed. 761;

Land Co. v. Griffey, 143 U. S. 40, 12 Sup. Ct. 362, 36 L. Ed. 64; Whitney v. Taylor, 158 U. S. 85, 15 Sup. Ct. 796, 39 L. Ed. 906. As early as 1827 Mr. Justice Washington, in delivering the opinion of the court in Chotard v. Pope, defines the word "entry," as applied to the appropriation of public lands, as follows: "It means that act by which an individual acquires an inceptive right to a portion of the unappropriated soil of the country by filing his claim in the office of an officer known in the legislation of several states by the epithet of an entry-taker,' and corresponding very much in his functions with the registers of land offices under the acts of the United States." In Wilcox v. Jackson it was held that whenever a tract of land has been legally appropriated to any purpose, from that moment it becomes severed from the mass of public lands, and that no subsequent law will be construed to embrace it or operate upon it, and that the validity and effect of the appropriation did not depend upon it being subjected afterwards to cancellation because of the omission of some particular duty of the party claiming its benefit. In Witherspoon v. Duncan the court held, in accordance with the decision in Carroll v. Safford, that lands originally public cease to be public after they have been entered at the land office and the certificate of entry has been obtained. And the court further held that this applies as well to homestead and pre-emption as to cash entries. In either case, the entry being made and the certificate being executed and delivered, the particular tract entered thereby becomes segregated from the mass of public lands, and takes the character of private property. And the fact that such an entry may not be confirmed by the land office on account of any alleged defect therein, or may be canceled or declared forfeited on account of noncompliance with the law, or even declared void after patent has issued on account of fraud in a direct proceeding for that purpose in the courts, is an incident inherent in all entries of the public lands. In Railroad Co. v. Whitney, it was declared that the almost uniform practice of the department has been to regard land upon which an entry of record, valid upon its face, has been made, as appropriated and withdrawn from subsequent homestead entry, pre-emption, settlement, sale, or grant until the original entry be canceled, or be declared forfeited; in which case the land reverts to the government as a part of the public domain, and becomes again subject to entry under the land laws. And it was further held that, whatever defects there might be in an entry, so long as it remained a subsisting entry of record, whose legality had been passed upon by the land authorities, and their action remains unreversed, it is such an appropriation of the tract as segregates it from the public domain, and therefore precludes it from a subsequent grant

by congress. In this case it was contended, as it is here, that the homestead entry was absolutely void, and that no rights could be acquired by virtue of said entry, and therefore an inceptive right could be acquired while the homestead entry remains uncanceled of record. The district court in the state of Minnesota held accordingly. The cause was thereupon appealed to the supreme court of that state, and the decision of the district court was reversed; the supreme court of Minnesota holding that the entry was not void, but merely voidable, and therefore the homestead entry, while it remained of record, segregated the tract from a subsequent grant or appropriation. Railroad Co. v. Whitney, 34 Minn. 538, 27 N. W. 69. The cause was thereupon appealed to the supreme court of the United States, and the decision of the supreme court of Minnesota was affirmed. Mr. Justice Lamar, in discussing what constitutes an entry and appropriation of land, said: "Under the homestead law three things are needed to be done in order to constitute an entry on public lands: First, the applicant must make an affidavit setting forth the facts which entitle him to make such an entry; second, he must make a formal application; and, third, he must make payment of the money required. When these three requisites are complied with, and the certificate of entry is executed and delivered to him, the entry is made,the land is entered. If either one of these integral parts of an entry is defective,—that is, if the affidavit be insufficient in its showing, or if the application itself is informal, or if the payment is not made in actual cash, -the register and receiver are justified in rejecting the application. But if, notwithstanding these defects, the application is allowed by the land officers, and a certificate of entry is delivered to the applicant, and the entry is made of record, such entry may be afterwards canceled on account of these defects by the commissioner, or on appeal by the secretary of the interior; or, as is often the practice, the entry may be suspended, a hearing ordered, and the party notified to show by supplemental proof a full compliance with the requirements of the department, and on failure to do so the entry may then be canceled. But these defects, whether they be of form or substance, by no means render the entry absolutely a nullity." In Sturr v. Beck and Land Co. v. Griffey the same doctrine was reaffirmed and applied. In Whitney v. Taylor it was declared that an existing claim on the records of the local land office by an individual under the homestead law which has been recognized by the government officers, and not canceled or set aside, excepts the tract from a subsequent grant, although such claim may not be enforceable by the claimant, and is subject to cancellation by the government. Counsel for plaintiff's in error cite the case of Calhoun v. Violet, 173 U. S. 60, 19 Sup. Ct. 324, 43 L.

Ed. 614, in support of their contention. In this case the court held that, since Calhoun had entered the territory during the prohibited period, his homestead entry was void; and the ruling of the land department was upheld. In this case the question of what constitutes a void or voidable entry did not arise, and we do not think that the supreme court of the United States intended in any wise to modify the well-settled doctrine of that court that a homestead entry, valid upon its face, constitutes such an appropriation and withdrawal of the land as to segregate it from the public domain, and precluded it from subsequent homestead entry or settlement until the original entry is canceled or declared forfeited. The distinction between a void and a voidable act is clearly and tersely stated by Mr. Chief Justice Fuller in Weeks v. Bridgman, 159 U. S. 511, 16 Sup. Ct. 72, 40 L. Ed. 253, as follows: “It is rarely that things are wholly void and without force and effect as to all persons and for all purposes, and incapable of being made otherwise. Things are voidable which are valid and effectual until they are avoided by some act, while things are often said to be void which are without validity until confirmed."

Applying these decisions, which this court must regard as final and authoritative, to the case at bar, it follows that White's homestead entry was prima facie valid; that its invalidity had to be determined by a competent tribunal, and that tribunal was the land department of the United States; and, so long as White's entry remained uncanceled of record, it segregated the tract of land from the mass of the public domain, and precluded McMichael from acquiring an inceptive right thereto by virtue of his alleged settlement. McMichaei having entered upon the land more than 30 days after White had made his homestead entry, he could not be regarded as a prior settler thereon. He was a mere intruder, a naked, unlawful trespasser; and no right, either in law or equity, can be founded thereon. Being a mere trespasser, White had the undoubted right to eject him from said land. McMichael being a mere intruder and a trespasser, he is precluded from saying that he was deprived of any right by reason of his ejectment by the military at the instance of White. And in this connection this court will take judicial knowledge of the fact that Oklahoma was opened to settlement on April 22, 1889; that the organic act of Oklahoma went into effect on May 2, 1890; that the congress of the United States, by virtue of said organic act, put in force the laws of the state of Nebraska until after the adjournment of the first session of the legislative assembly of said territory; and that from April 22, 1889, until the organic act of Oklahoma went into effect there was no law in Oklahoma Territory to redress any wrongs affecting persons or property. This court will presume that Capt.