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and Hartshorn v. Burlington, C. R. & N. R. Co., 52 Iowa, 613, S. C. 3 N. W. Rep. 648, it was ruled that the property owner was entitled to the damages caused to his property at the time of the appropriation for the right of way, with interest thereon at the rate of 6 per cent. from that date. The defendant in the present case claims, however, that while such is the correct rule, yet the interest must be included in the verdict of the jury; and if it is not, then the court cannot provide for the allowance thereof, as that would be assessing the damages by piecemeal, and in support of this position defendant cites the case of Hayes v. Chicago, M. & St. P. Ry. Co., 64 Iowa, 753; S. C. 19 N. W. Rep. 245.

It appeared in that cause that an appeal from the action of the sheriff's jury had been taken to the state court, and thence, by removal, into the United States circuit court for the Southern district of Iowa, in which court the damages were assessed by the jury at $3,000, being an increase of $1,000 over the sum fixed by the sheriff's jury. In the order made by the court no provision was made for the payment of interest. The company subsequently paid the $3,000, and refused to pay any interest thereon. Thereupon the property owner filed a petition for an injunction in the state court, asking that the company be restrained from using the right of way condemned over plaintiff's property until the interest on the damages assessed was paid. The supreme court of Iowa held that the plaintiff was in fault in not having provision made for the payment of interest in the adjudication had in the United States court, and that he could not, by another action, have his right to interest heard and determined. The court held that where the land-owner is kept out of the use of the money assessed as damages, and of the use of the land, he is entitled to 6 per cent. interest on the amount of damages from the date of the taking of the land by the company up to the date of payment; but in the particular case before the court the right to interest was lost because it had not been adjudicated by the court in which the assessment of damages was had. In this case, it was not determined that the court might not provide for interest upon the amount of damages awarded by the jury, but only that a failure to provide therefor would prevent the property owner from maintaining another action for the recovery of the interest, as that would be adjudicating the damages by piecemeal.

A consideration of the rights of the parties under the right of way act shows that it is impossible in these cases for the jury to fix by the verdict the amount of interest to be paid. Whether any interest is recoverable depends upon circumstances. If the company, upon the assessment by the sheriff's jury, deposits the amount of that assessment with the sheriff, and the property owner appeals, but upon the appeal the damages are not increased, then the company is not liable for interest. If, upon the assessment by the sheriff's jury, the case is appealed, but the railway company does not enter upon

the land until after the determination of the appeal, and pays the amount assessed previous to entering upon the land, then no interest is recoverable. In cases wherein the company enters upon possession before the trial of the cause upon appeal, and the damages are increased, then the property owner is entitled to interest from the time possession is taken until the payment is made; but the jury cannot know when the payment will be made, as that is an act yet to be performed. If the jury assess interest until date of trial, and no more is allowed, then the property owner is deprived of part of that which is his due; and, on the other hand, if the jury assess interest to date of trial, and interest is allowed on that sum until paid, then the company is compelled to pay compound interest on part of the verdict.

These and other like considerations show that in cases of this character, being proceedings of a peculiar nature, the only way in which the rights of all can be fully protected is for the jury to assess the damages as of the date of the assessment by the sheriff's jury, and then, upon the rendition of the verdict, for the court to make the proper order touching the question of interest. Until the verdict is rendered, it cannot be known whether plaintiff may be entitled to interest. When this is determined by the amount of the verdict, the court can then make the proper order, and the same will form part of the adjudication settling the damages. The order should fix the date when interest begins to run,-i, e., the time when the company deprives the property owner of the use of his property,-and from that date interest will run until the damages are paid.

Under the facts of this case the plaintiff is entitled to interest upon. the amount of damages as ascertained by the verdict of the jury, from the time the defendant took possession of the right of way over plaintiff's lands, to-wit, up to the time the defendant pays the damages awarded plaintiff.

2. The second question presented for determination is whether the court should include in the order to be entered a provision authorizing the marshal of this court to oust the railway company from the occupancy of the premises, in case the damages assessed against it are not paid. The sole object of the appeal from the sheriff's jury is to have ascertained and finally determined the amount of the damages to be paid to the property owner. Under the statute no money judgment can be entered up against the company for the damages; nor can the collection thereof be enforced by execution. The statute points out the proceedings that may be had for the protection of the property owner in case the company fails to pay the damages after entering into possession of the right of way. Section 1258 of the Code provides that the sheriff, upon being furnished with a certified copy of the assessment, may remove the railway from the premises unless the amount of damage is forthwith paid. The right of the property owner to this remedy, and the authority of the sheriff to ex

ercise it, are derived, not from an order of the court in which the damages may have been assessed, but from the provisions of the statute, and this remedy is open to the plaintiff in this case. The sheriff does not need a writ or mandate from the court, but only a certified copy of the assessment, in order that he may know the amount to be paid, and, having this, he can then proceed as in the statute directed. If the court should order the marshal to remove the defendant from the premises, it might lead to complications that should be avoided. Hence it is the safer rule to leave the parties to the rights and remedies pointed out by the statute.

The order to be entered, therefore, will be conformed to the rulings thus made.

WEBSTER and others v. BOWMAN and others.

(Circuit Court, D. Minnesota. December 31, 1885.)

PUBLIC LAND-MORTGAGE OF HOMESTEAD LAND BEFORE PATENT ISSUED-WHEN VALID.

A mortgage executed on land entered under the homestead act of congress, before expiration of the five-years residence thereon required by the statute, is void; but if, at the time the mortgage was executed, the right to a patent had been perfected, by a residence on the land for five years, it will be valid.

This is a suit in ejectment. An amended answer is put in, to which a demurrer is filed.

Samuel Appleton and C. B. Palmer, for plaintiffs.

Warner, Stevens & Lawrence, for defendants.

The court (NELSON, J.) construed the answer to allege that Webster made a homestead entry July 7, 1875, under the United States laws; and on that day gave his promissory note to one Anna North, and executed a mortgage with his wife to secure on the homestead property the payment of the note. North foreclosed the mortgage, and became purchaser. After the expiration of the time for redemption she conveyed the land; so that, by divers mesne conveyances, her claim of title became vested in a corporation under whom defendant Neuner was in possession. That the receipt given Webster by the receiver of the United States land-office was not the final certificate given after a residence of five years and fulfillment of the requirements of the homestead statute. The demurrer was sustained, and the court held: (1) That the promissory note given under the alleged circumstances, and secured by the mortgage, was a debt within. the terms of section 4 of the United States homestead act; (2) that the mortgagee was apprised that the land was not liable to the payment of the debt, it being created after Webster had settled upon the land under the homestead act of congress, and before expiration of

the five-years residence thereon required; (3) that if, at the time the mortgage was executed, the right to a patent was perfected by a resi dence on the land for five years, the fourth section of the homestead act did not apply.

Leave was given to amend the answer if it could be shown that in fact Webster had resided five years on the premises, or become entitled to a patent at the time the debt was created and the mortgage executed.

SCHLEY V. PULLMAN PALACE CAR CO,1

SAME V. ALLEN PAPER CAR-WHEEL Co.

SAME V. TRUSTEES PULLMAN LAND Ass'n.

(Circuit Court, N. D. Illinois. December 23, 1885.)

HUSBAND AND WIFE-CONVEYANCE OF WIFE'S LAND-ILLINOIS ACT OF FEBRUARY 22, 1847.

Under section 2 of the act of February 22, 1847, (2 Scates, T. & B. Ill. St. 965,) when a married woman, above the age of 18 years, and not residing in the state of Illinois, executed a deed in another state, where she resided, the mere signing, sealing, and acknowledgment of the deed by her husband was sufficient, although his name did not appear in the granting clause of the instrument.

Ejectment.

S. Corning Judd, and Ritchie, Esher & Judd, for plaintiff.

Alfred Ennis, Lyman & Jackson, and Flower, Remy & Gregory, for defendants.

GRESHAM, J. These are actions in ejectment to recover lands upon which the city of Pullman in part stands. Juries were waived, and the cases were submitted to the court upon a stipulation that if the following instrument should be held valid and binding as a deed of conveyance by husband and wife, judgment should be entered for the defendants:

"This indenture, made this twenty-sixth day of May, A. D. 1856, witnesseth, that I, Christina Lynn, sister and heir at law of Henry Millspaugh, deceased, who was a recruit of Lieutenant T. W. Denton, of the 13th regiment, United States infantry, war of 1812, with Great Britain, of the county of St. Clair and state of Michigan, party of the first part, in consideration of the sum of $43 in hand paid by Milton and Thomas C. McEwen, of the county of Orange and state of New York, party of the second part, the receipt of which is hereby acknowledged, do hereby release, grant, bargain, and quitclaim unto the said party of the second part, their heirs and assigns, forever, all her right, title, claim, and interest in that certain tract of land granted by the United States unto David Millspaugh and Christina Lynn, the brother and sister and only heirs at law of Henry Millspaugh, deceased, as follows, to-wit: The south-east quarter of section numbered fifteen, (15,) in township num1 Affirmed. See 7 Sup. Ct. Rep. 730.

bered thirty-seven, (37,) north, of range numbered fourteen (14) east, in the district of lands subject to sale at Chicago, state of Illinois, containing one hundred and sixty (160) acres, by letters patent bearing date of November 23, A. D. 1849, and founded upon warrant No. 27,495, reference being made to said patent will more fully appear,-to have and to hold the said premises, with all the appurtenances thereunto belonging, or in anywise appertaining, to their only proper use, benefit, and behoof of said parties of the second part, their heirs and assigns, forever.

"In witness whereof, the said grantor have hereunto set our hands and seals, the day and year first above written.

"CHRISTINA LYNN. [Seal. "WILLIAM LYNN." [Seal.]

Following is the certificate of OBED SMITH, a justice of the peace, of St. Clair county, Michigan, dated May 27, 1856. The officer certified that on that day Christina Lynn and William Lynn, her husband, personally appeared before him; that he knew them to be the persons who executed the foregoing instrument; that they acknowledged it to be their free act and deed; and that after he had personally examined the wife, separate and apart from her husband, and had fully informed her of the contents, she acknowledged that she executed the same freely, and without compulsion from her husband.

Section 2 of the act of February 22, 1847, (2 Scates, T. & B. St. Ill. 965,) declares that when any married woman, above the age of 18 years, and not residing in this state, joins with her husband in the execution of any deed, mortgage, or conveyance of any real estate situated within Illinois, she shall be barred thereby of all the estate, right, title, interest, and claim of dower therein, the same as if she were unmarried and of full age; and it is further declared that such a married woman may acknowledge such deed, etc., as if she were unmarried. This statute was in force when Mrs. Lynn and her husband executed the deed in Michigan where they then resided, and she was at that time above the age of 18. It is insisted by counsel for the plaintiff that the statute required the husband to be a joint grantor with his wife; that his mere signing, sealing, and acknowledging the deed was not sufficient when his name did not appear in the granting clause or body of the instrument; and that it was therefore inoperative and void. It was only in substantial compliance with this statute that the wife could convey title to her lands. The husband was required to join her in the execution of a deed. Did the husband so join in the execution of this deed? That he intended to do so, and thought he had, admits of no doubt; and it is equally clear that both the wife and husband undertook in good faith to convey their entire interest and estate in the premises to the grantees. The husband signed, sealed, and acknowledged the deed, to enable his wife to convey her title, and to convey any claim or right, present or contingent, that he had in the land. The wife and her husband rested and no doubt died in the belief that they had joined in the execution of a deed in compliance with the statute; and it remained for some one, after the lapse of 29 years, to discover, as he supposed, that they had utterly

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