Nycum v. McAllister
Supreme Court of Iowa
Appeal from Kossuth District Court. Action to foreclose a mortgage. The defendants pleaded, as a defense, that the real estate described in the mortgage was by them taken as a homestead on the 6th day of June, 1864, under the act of congress, approved May 20, 1862, entitled “ An act to secure homestead's to actual settlers on the public domain,” and that no patent has been issued to defendants for the land.
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Appeal from Kossuth District Court. Action to foreclose a mortgage. The defendants pleaded, as a defense, that the real estate described in the mortgage was by them taken as a homestead on the 6th day of June, 1864, under the act of congress, approved May 20, 1862, entitled “ An act to secure homestead's to actual settlers on the public domain,” and that no patent has been issued to defendants for the land. The action was commenced August 31, 1871. A demurrer to the answer, on the ground that it does not show facts which, in law, are a defense to the action, nor that defendants’ interest in…
1Opinion of the Court
Beck, Ch. J.
Defendants’ counsel insist that, under the provisions of the act of congress, granting homesteads to actual settlers, the mortgage sought to be foreclosed in this case cannot be enforced. Section 4 of that act provides: “ That no lands, acquired under the provisions of this act, shall in any event become liable to the satisfaction of any debt or debts, contracted prior to the issuing of the patent therefor.” Act of May 20, 1862. Occupancy of the land for five years (other provisions of the law having been performed) entitles the homestead settler to a patent. The occupancy of…
2Cases cited2 opinions
- Curtis v. O'BrienSupreme Court of Iowa · 1866
- Pierson v. DavidSupreme Court of Iowa · 1855
3Cited by19 opinions
- Fuller & Co. v. HuntSupreme Court of Iowa · 1878
- Spiess v. NeubergWisconsin Supreme Court · 1888
- In Re Davis' EstateSupreme Court of Oklahoma · 1912
- Stark v. DuvallSupreme Court of Oklahoma · 1898
- Oaks v. HeatonSupreme Court of Iowa · 1876
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