Where the homesteader has made final proof before his death and
become entitled to the patent, his heirs under § 2448, Rev.Stat.,
take as such heirs, and not directly under § 2291, Rev.Stat., and
as its beneficiaries.
The provision in Rev.Stat., § 2296, that no land acquired under
the Homestead Law shall be liable for debts contracted prior to the
issuing of the patent does not deprive the probate court of
jurisdiction over land of which decedent was entitled to have the
patent issued, he having made final proof before death.
The probate court has jurisdiction to order a sale in compliance
with the law of the state of the property within a homestead entry
on which the homesteader had made final proof and become entitled
to patent before his decease.
If the probate court having jurisdiction to order a sale erred
in regard to application of the proceeds, the remedy is by appeal;
the judgment cannot be collaterally attacked.
The fact that a party is entitled to a day in court does not
entitle him to two days in court.
The facts, which involve the construction of Rev.Stat. § 2296,
and the jurisdiction of the state probate court over the homestead
entry of a deceased homesteader dying after full payment and before
patent has issued, are stated in the opinion.
Page 237 U. S. 364
MR. JUSTICE McKENNA delivered the opinion of the Court.
Suit to quiet title to certain described lands, brought by
plaintiff in error against defendants in error. The parties were
respectively plaintiff and defendants in the state courts, and we
shall so designate them.
The facts are as follows:
On November 12, 1904, Edward O. Norton made a homestead entry
under the laws of the United States of the land in controversy. On
April 10, 1906, he duly made final proof upon his entry. September
6, 1906, he died, leaving the plaintiff and four others as next of
kin and sole heirs at law.
The final receipt of the Receiver of the United States Land
Office was issued to and in the name of Norton on March 17, 1908,
and on the 8th of September following, a patent was issued in his
After the death of Norton, the other heirs conveyed their
respective rights, title, and interest to plaintiff.
On March 2, 1909, letters of administration upon the estate of
Norton were issued out of the Probate Court of Koochiching County,
Minnesota, to the defendant John A. Kennedy, and on February 11,
1910, an order of license to sell the real estate here involved for
an alleged indebtedness incurred and contracted by Norton prior to
his death, and for the expense of the administration, was by the
court issued to John A. Kennedy as administrator.
On April 16, 1910, Kennedy, as such administrator, and by virtue
of the order of license, made a public sale of the
Page 237 U. S. 365
land for the consideration of $650 to the defendant George N.
Millard, and on the 29th of that month, the court made an order
confirming the sale.
On May 2, 1910, Millard conveyed the property to the defendant
From the facts found as above, the trial court concluded that
plaintiff was the owner in fee simple of the land, and that the
defendants had no estate or interest in it, resting the conclusion
upon the fact that the indebtedness for which it was sold was
contracted by Norton before the patent was issued; that, under §
2296 of the Revised Statutes, the land was protected from liability
for "the satisfaction of any debt contracted prior to the issuing
of the patent therefor," and that therefore the order of sale
exceeded the jurisdiction of the probate court and was void.
Upon the appeal of the defendants, the supreme court of the
state reversed the judgment. The latter court decided (1) that
Norton was the equitable owner of the land at the time of his
death, and that it descended according to the laws of the state,
and was part of Norton's estate to be administered; (2) the probate
court having jurisdiction, its order of sale could not be attacked
in a collateral proceeding such as, the court said, the proceeding
at bar was, and that it was unnecessary to determine whether the
land was exempt from liability under § 2296 of the Revised
Statutes. A member of the court dissented from the decision of the
majority that the land was a part of the estate of Norton when it
To review the judgment of the supreme court this writ of error
Plaintiff contends: (1) that the probate court had no
jurisdiction, and the land being no part of Norton's estate; (2)
even if part of his estate, it was not subject to sale for the
payment of debts contracted before the patent was issued.
Page 237 U. S. 366
As an element in the first contention of plaintiff is the extent
of the estate, if any, Norton had in the land. None whatever, is
the assertion of plaintiff, and she adduces §§ 2289, 2290, and 2291
of the Revised Statutes.
The first two sections provide who shall be entitled to enter
land as a homestead and upon what conditions. The last section
provides when a certificate shall be given or patent shall issue
and to whom upon certain contingencies. It shall not be issued
until the expiration of five years after entry, and may be at any
time within two years thereafter, to "the person making such
entry." If, however, he be dead, then to his widow, or, in case of
her death, to his heirs or devisee, upon proving the necessary
settlement and qualification for the time prescribed.
This section, it is contended, made the heirs of Norton (there
being no widow) the direct beneficiaries of the statute -- that is,
the plaintiff and her grantors. In other words, they took directly
under the statute, not from Norton, and such, it is further
contended, is the effect of the decisions of this Court, citing
McCune v. Essig, 199 U. S. 382
Wadkins v. Producers' Oil Co., 227 U.
But it will be observed the cited section provides for cases
where the homesteader dies before final proof, other sections
applying when such proof has been made and nothing is yet to be
performed to entitle to a patent.
By § 2448, it is provided that
"where patents for public lands have been or may be issued, in
pursuance of any law of the United States, to a person who had
died, or who hereafter dies, before the date of such patent, the
title to the land designated therein shall inure to and become
vested in the heirs, devisees. or assignees of such deceased
patentee as if the patent had issued to the deceased person during
Such are the circumstances in the present case. Norton had made
his final proof before his death, and had become entitled to the
patent. Plaintiff and her grantors, therefore,
Page 237 U. S. 367
could only receive the land as his heirs, and not directly under
§ 2291, and as its beneficiaries.
Upon such proof, Norton certainly became the equitable owner of
the land. Indeed, it practically became his absolute property,
subject to his disposition by assignment or by will, or to the
disposition of the law (United States v. Detroit Timber &
Lumber Co., 200 U. S. 321
200 U. S.
), and subject therefore upon his death, to the
probate jurisdiction of the state.
But it is contended that, even if he became such owner, the land
was not subject to sale for the satisfaction of debts contracted
before the patent was issued. The debt for which it was sold was so
Section 2296 provides that
"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 prohibition is clear and direct; but does it involve the
consequences plaintiff asserts? Her contention is that it took from
the probate court all jurisdiction or power over the land, and that
its order of sale was absolutely void, and can be collaterally
attacked. The supreme court of the state decided otherwise, as we
have seen. It rejected all of the contentions of plaintiff against
the jurisdiction of the court, based on the laws of the state, and
so far its decision is binding here. It said that there was no
pretense at either pleading or proof that Norton left no other
property, or that such was the fact. It decided that the probate
court had jurisdiction over Norton's estate. "That court," it was
"had the unquestioned power to authorize a sale of it to pay
certain classes of obligations. It might be sold to pay liabilities
arising out of torts of deceased. 32 Cyc. 1084; Brun v.
151 F. 145. Had the patent issued when it should have
issued, it might have been sold to pay debts incurred thereafter
and before the death of deceased. Whether there were
Page 237 U. S. 368
facts to warrant a sale in any given case was a question which
the probate court was obliged to determine, and which that court
and no other had jurisdiction to determine. This question was
considered by the probate court and was determined adversely to
plaintiff. Then was the time for the plaintiff to present her
contention in court. No fraud or artifice was practiced to prevent
her doing so. In fact, in her brief she claims that she did in fact
appear. If the determination of the probate court was wrong, her
remedy was to appeal from that determination. The heirs were
entitled to one day in court, but not to two. When a probate court
with jurisdiction over property for purposes of administration, and
for purposes of sale in certain cases, orders and confirms a sale
of the same, it is the right and duty of an heir to litigate the
propriety of such orders in that proceeding. The heir cannot sit
by, permit the sale to be made, and then bring another and a
collateral action in another court to litigate again the propriety
of the sale, and to procure a decree declaring it to be void. Such
a practice would place no end to litigation."
The court further decided that certain sections of the Revised
Laws of the state accorded to the orders of the probate court in
the matter of administrators' sales the same presumption as to the
judgments of courts of superior common law jurisdiction.
It would be difficult to add anything to the reasoning of the
court, and it is in accord with the rulings in other states.
Watkins Land Mortgage Co. v. Mullen,
62 Kan. 1;
Gjerstadengen v. Van Duzen,
7 N.D. 612. See also
Sigmond v. Bebber,
104 Ia. 431, and § 319b, Freeman on
Judgments, 4th ed., and cases cited.