J. Q. Adams, et al., Appellants, vs. W. R. White, Appellee, 23 Fla. 352

The Chief-Justice delivered the opinion of the court: W. R. White filed his bill in the Circuit Court of Orange county against'J. Q. Adams, Charles H. Rogers and J. 0. Anderson, Sheriff of Orange county. The bill alleges that J. Q. Adams obtained judgment against orator on the 4th day of December, 1876, in the Circuit Court of said county for the sum of $1,669.45, and that execution was issued thereon July 10th, 1878, “ and sent to J. Q. Adams, plaintiff in the suit aforesaid.” The bill further alleges that J. C. Anderson, Sheriff, has levied upon certain lauds, describing them.

It further alleges that these lands weie held by orator by patent from the United States of June 30th, 1884, in pursuance of the act of Congress, May 20th, 1862, to secure homesteads to actual settlers on the public domain, and the act supplemental thereto. It further alleges that the proceedings in obtaining the' judgment against him by said Adams were irregular, and prays that the said Anderson, as Sheriff, and the said Adams, and the said Rogers, “ be enjoined and prohibited from selling or attempting to sell the aforesaid land,” and that said judgment be declared to be absolutely null and void.

The defendants demurred to the bill and the demurrer was overruled.

The appellants assign as- error, here: 1st, That the bill does not allege that the Sheriff levied upon the land under the judgment and execution mentioned ; 2d, The bill seeks to have the defendants enjoined from selling the land, claiming the same as exempt as a United States homestead, but does not allege any residence on or occupation of the same by the appellee or his family as a homestead; 3d, The bill prays that the defendants be enjoined from selling the lands without any reference to the judgment in question ; 4th, The bill seeks to vacate a common law judgment.

The demurrer should have heen sustained on the first ground, for the reason that it does not appear by virtue of what judgment and execution the land was levied on. It does not even state that the execution ever came to the hands of the Sheriff, but rather rebuts any presumption that this court might make in that respect by alleging that execution was issued thereon and “ sent to J. Q. Adams, the plaintiff.” The demurrer should also have been sustained on the 3d ground, for the reason that it did not limit the prayer to restrain the Sheriff to sell under the particular judgment and execution mentioned.

But it virtually asks that the Sheriff be restrained from selling the land under any or all judgments, without reference to when they were rendered or as to when the debt on which sueh judgments were founded was incurred. The demurrer should have been sustained also on the- 4th ground, for the reason that mere irregularity does not furnish a sufficient reason for the collateral impeachment of a judgment. It may be added also that while Rogers was made a party defendant to the bill, nothing is alleged against him in the body of the bill. We can see no reason why he should have been made a party.

Eor these reasons the decree must be reversed. As to the second assignment, as the case must go back for a rehearing, we will suggest that it is provided by subdivision 2, of

section 3, of

Article IY of the Constitution of the United States, that Congress shall have power to dispose of and make all needful rules and regulations respecting the territory and other property of the United States. It is also provided by

section 7, of the act of March 3d, 1845, entitled “

An act for the admission of the States of Iowa and Elorida into the Union,” that said States of Iowa and Florida are admitted into the Union on the express condition that they shall never, interfere with the primary disposal of the public lands lying within them. The foregoing provisions would fully authorize the Congress of the United States to attach to the grant of the homestead—as it does—the condition that no lands acquired under the said act shall, in any event, become liable to the satisfaction of any debt contracted prior to the issuance of the patent therefor. U. S. Rev. Stats., § 2296.

There is no provision in said act requiring the homesteader to occupy the premises as a homestead after the issuance of the patent. It is exempt from all debts contracted by the homesteader before the issuance of the patent, whether occupied by him as a homestead after its issuance or not. See Gibson vs. Chouteau, 13 Wallace, 103 ; Lewton vs. Hower, 18 Fla., 873; Gile vs. Hallock, 33 Wisconsin, 523. Decree reversed.