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courts is not material. National Surety Co. v. State Bank, 56 C. C. A. 657, 666, 120 Fed. 593, 602;3 Smyth v. Ames, 169 U. S. 466, 516, 18 Sup. Ct. 418, 42 L. Ed. 819, Arrowsmith v. Gleason, 129 U. S. 86, 98, 9 Sup. Ct. 237, 32 L. Ed. 630; Mayer v. Foulkrod, 4 Wash. C. C. 349, Fed. Cas. No. 9,311; Bean v. Smith, 2 Mason, 252, Fed. Cas. No. 1,174; Coler v. Board (C. C.) 89 Fed. 257; U. S. Life Ins. Co. v Cable, 39 C. C. A. 264, 98 Fed. 761. Again, the adequate remedy at law which will deprive a court of equity of jurisdiction must be a remedy as certain, complete, prompt, and efficient to attain the ends of justice as the remedy in equity. Boyce v. Grundy, 3 Pet. 210, 215, 7 L. Ed. 655; Williams v. Neely, 67 C. Č. A. 171, 180, 134 Fed. 1, 10, 69 L. R. A. 232. The remedy by application to the county court for a direction to the administratrix to commence a proceeding for the sale, or by an application for her removal, is much less prompt and efficient to secure just results than this direct suit in equity. The complainant had no adequate remedy at law.
Another complaint of the defendants is that Mann has been guilty of such laches in the collection of his claim that a court of equity should turn a deaf ear to his plaint. Tillett and his successors in interest have paid nothing for the cattle of which he deprived the complainant in 1881, and the record is slightly suggestive of some dilatoriness in the discharge of this duty on their part. Prompt payment of the judgments of the court below when rendered would have obviated the delay of the complainant. He secured his first judgment in 1885. He proved it against the estate of Tillett on January 24, 1899, within the year after the death allowed by the statutes of Colorado for such proof. Mills' Ann. St. § 4780. It is true that the lien of a judgment upon real estate expired under the statutes of Colorado six years after its entry. Gen. St. 1883, § 1839. But Tillett had no real estate within six years after the original judgment was entered, and that judgment was duly revived in 1899, within the time allowed for such a purpose by the laws of that state. Mann proved and secured an allowance of the revived judgment by the county court within a month after he recovered it, and he instituted this suit within one month after the administratrix refused to commence such a proceeding. The doctrine of laches is an equitable principle which is applied to promote, but never to defeat, justice. Under ordinary circumstances, a suit in equity will not be stayed on account of laches before, and it will be stayed after the analogous statutes of limitations at law. But, if unusual conditions or extraordinary circumstances make it inequitable to allow the prosecution after a briefer, or to forbid its maintenance after a longer, period than that fixed by the statute, the chancellor will not be bound by the statute, but will determine the extraordinary case in accordance with the equities which condition it. When a suit' is brought within the time fixed by the analogous statute, the burden is on the defendants to show either from the face of the bill or by their answer that extraordinary circumstances exist which require the application of the doctrine of laches in order to secure a just result. Kelley v. Boettcher, 29 C. C. A. 14, 21, 85 Fed. 55, 62; Ide v. Trorlicht, Duncker & Renard Carpet Co., 53 C. C. A. 341, 352, 115 Fed. 137, 148. This suit was commenced within the time limited by the statutes of Colorado for the institution of the analogous action at law upon the revived judgment. No unusual conditions or circumstances are presented which will render its maintenance unjust or inequitable, while the long delay of the payment of the judgment by Tillett and his successors, the unsuccessful suit of the administratris to procure the satisfaction of the original judgment without paying, or offering to pay, any part thereof, and her delay and final refusal to proceed to sell the land to discharge this claim, appeal to the conscience of a chancellor with compelling force. The only culpable laches in this case was that of Tillett and his successors in interest. The complainant was not guilty of any, and his suit may not be defeated upon that ground.
8 61 L. R. A. 394.
We come, then, to the merits of this case. The acts of Congress declare that no lands acquired under the homestead and timber culture laws shall be liable for the satisfaction of any "debt contracted prior" to their acquisition from the government. 2 U. S. Comp. St. 1901, p. 1398, § 2296; Act. May. 20, 1862, c. 75, § 4, 12 Stat. 393; 2 U.S. Comp. St. 1901, pp. 1534, 1535; Act March 4, 1896, c. 40, § 4, 20 Stat. 113, 114, § 4. Tillett acquired these lands under these statutes. He unlawfully took and converted Mann's cattle before he acquired them. He never contracted, or agreed or consented, to pay for the cattle. The question is: Are lands thus acquired exempt from liability for wrongs perpetrated as well as for debts contracted by those who secure them? The line of demarcation between the two great classes of the liabilities of parties, between liabilities created by agreement or by consent and liàbilities created by torts, can never be absent from the minds of those members of Congress whose duty it is to criticise, amend, and perfect its acts. The Constitution of the United States broadened and deepened this line of separation and projected it through all the legislation in the nation when it prohibited the states from impairing the obligation of contracts (U. S. Const. art. 1, § 10), but permitted them to impair the obligations of liabilities and judgments for wrongs. Louisiana v. Mayor of New Orleans, 109 U. S. 285, 288, 3 Sup. Ct. 211, 27 L. Ed. 936; Garrison v. City of New York, 21 Wall. 203, 22 L. Ed. 612; McAfee v. Covington, 71 Ga. 272, 51 Am. Rep. 263. In this state of the law and with this provision of the Constitution in force, Congress exempted the lands which it practically donated to the entryman under the homestead and timber culture acts from any debt contracted previously by the patentees, but from no other liabilities. The terms "liability incurred" and "debt contracted” are equally familiar. When the subject of liabilities is brought to the attention, they occur to the mind with equal readiness, and when contrasted their significations are clear and definite. If an act provided that lands should be exempt from every liability incurred, there could be no doubt that they would be free from all liabilities, both from those arising out of contracts and from those arising out of torts. If it provided that lands should be exempt from every debt contracted, but should still be chargeable with every other liability incurred by its owners, no one would have the hardihood to say that it was free from liability for their torts. These terms and their meanings could not have failed to occur to those who
drafted, or to those who passed, the acts of Congress under consideration, and their rejection of the familiar and broad term “liability incurred" and their selection and adoption of the limited expression "debt contracted” is a demonstration that they had no purpose to exempt the lands they gave from liability for the wrongs which the patentees might have perpetrated and that they intended to free it from the debts which sprang from their agreements only.
It is said that the term "debt contracted” does not always mean a debt by agreement, that the significance of the word "debt" is extensive enough to include liability for a tort and especially a judgment for it, and that such a judgment evidences a debt by a contract of record. The argument is too ingenious and specious to prevail
. The ordinary signification of the term "debt contracted” includes neither a liability for a wrong done nor a judgment for the damages caused thereby, and, in the absence of any evidence that this expression was intended to be used in any other sense, a familiar rule of construction requires that it shall be given its common and its usual ineaning. The contention of counsel here is well answered by Mr. Justice Field in Louisiana v. Mayor of New Orleans, 109 U. S., at page 288, 3 Sup. Ct., at page 213 (27 L. Ed. 936), in these words:
"A judgment for damages, estimated in money, is sometimes called by textwriters a 'specialty' or 'contract of record,' because it establishes a legal obligation to pay the amount recovered; and by a fiction of law a promise to pay is implied where such legal obligation exists. It is on this principle that an action ex contractu will lie upon a sudgment. Chitty on Contracts (Perkins' Ed.) 87. But this fiction cannot convert a transaction wanting the assent of parties into one which necessarily implies it. Judgments for torts are usually the result of violent contests, and, as observed by the court below, are imposed upon the losing party by a higher authority against bis will and protest."
Counsel invoke the conceded rule that homestead and exemption laws are beneficial to the citizen and should be liberally construed, and then they insist that the word "contracted” has other meanings than "agreed," that it sometimes means "acquired without consent" as a contracted disease, and that the expression "debt contracted” should, therefore, be interpreted to mean "liability incurred." There are two reasons why this argument is not convincing. In the first place, while it is a rule inspired by public policy that exemption and homestead laws should have a liberal construction, there is a more imperative rule of public policy which forbids the interpretation appellants seek. It is that laws should be so construed and enforced, where no legal obstacle prevents, as to repress wrong and prevent crime. It has frequently been and is the policy and law of the land that debtors may be discharged from liability for their honest obligations by a surrender of their property. But at the same time the nation refuses to release them from liabilities for their frauds and malicious injuries, even though all their property is surrendered to their creditors. Bankr. Act July 1, 1898, c. 511, § 17, 30 Stat. 550 [3 U. S. Comp. St. 1901, p. 3128]. It may well be that Congress was willing to donate the lands of the nation to citizens free from debts which they had promised or consented to pay, but which through misfortune they were unable to discharge, but that it was unwilling to offer a reward for wrong and
a premium for crime by giving its lands to their perpetrators free from all liability for their torts. As the Congress has not done so, no liberal or other rule of construction requires, and public policy forbids, judicial legislation to that effect. In the second place, it is only when the terms of a statute are ambigous and their significance is uncertain that the rule of liberal construction has any function. It is the intention expressed in a statute, and that alone to which the courts may lawfully give effect. They may not assume or presume purposes and intentions that the terms of the statute do not indicate and then enact or expunge provisions to accomplish these supposed intentions. They may not suppose that Congress intended to exempt these lands from every liability incurred when it expressed the intention to exempt them from every debt contracted only, and then substitute the one term for the other for the purpose of expressing the assumed intention. Construction and interpretation have no place or office where the language of the statute is unambiguous and its meaning evident. There is a conclusive presumption that the legislative body intended. what it declared, the statute must be held to mean what it clearly expresses, and no room is left for construction. U. S. v. 99 Diamonds, 139 Fed. 961, 964, 72 C. C. A. 9, 2 L. R. A. (N. S.) 185. In view of the patent distinction between debts by contract and liabilities for wrongs, of the familiar use of the term "debt contracted” to indicate the former, and the term "liability incurred" to signify both, of the marked distinction between the two classes of liabilities embodied in the Constitution of the United States and the decisions of the courts, of the public policy of the nation to release debtors from their honest obligations and to refuse to discharge them from their liabilities for frauds and malicious injuries, and of the evident rejection of the expression "liability incurred" and the selection and adoption of the term "debt contracted” by the Congress in the acts under consideration, the latter phrase is too clear in expression and too certain in significance to permit the substitution for it of the term “liability incurred" by any rule of construction. Such a substitution would be judicial legislation which the courts are not authorized to enact, and would import into these acts of Congress an exemption which the Congress did not insert therein, and which the plain term it used conclusively demonstrates it never intended to enact. The conclusion is that the exemptior of lands acquired under the homestead and timber culture laws from liability for any "debt contracted” by the patentees does not exempt them from liabilities for torts previously incurred, and the lands and water rights involved in this litigation are subject to sale to satisfy the judgment of Mann.
The fact has not escaped attention that some courts have substituted the words "liability incurred," or their meaning, for the term "debt contracted,” in these acts of Congress by the use of the rule of liberal construction, by the rejection of the primary and ordinary meaning of the words "debt contracted” and by the imputation to them of an ingenious and secondary signification (State v. O'Niel, 7 Or. 141; Flanagan v. Forsythe [Okl.) 50 Pac. 152, 153; Warner v. Cammack, 37 Iowa, 642; Conroy v. Sullivan, 44 Ill. 451; Loomis v. Gerson,
62 Ill. 11; In re Radway, Fed. Cas. No. 11,523; Mertz v. Berry (Mich.) 59 N. W. 445, 446, 24 L. R. A. 789, 45 Am. St. Rep. 379); and that statutes which use other terms such as “any debt or liability contracted” have been construed to include liabilities for torts (Smith v. Omans, 17 Wis. 395, 397). But the arguments and the opinions in these cases are not convincing. Reasons which appeal more strongly to our minds sustain our conclusion, and it is not without the support of respectable authority. Meredith v. Holmes, 68 Ala. 196; Williams v. Bowden, 69 Ala. 433; Vincent v. State, 74 Ala. 274; McLaren v. Anderson, 81 Ala. 106, 8 South. 188; Kirkpatrick v. White, 29 Pa. 176, 179; Kenyon v. Gould, 61 Pa. 176; Bohn v. Brown, 33 Mich. 257; Lathrop v. Singer, 39 Barb. (N. Y.) 396, 399; Schouton v. Kilmer, 8 How. Prac. (N. Y.) 527; Burton v. Mill, 78 Va. 468; Schussler v. Dudley (Ala.) 2 South. 526, 528, 60 Am. Rep. 124; Leighton v. Campbell (R. I.) 20 Atl. 14, 15, 9 L. R. A. 187; White
acre, Sheriff, v. Rector, 29 Grat. (Va.) 714, 26 Am. Rep. 420; McAfee · v. Covington, 71 Ga. 272, 51 Am. Rep. 263.
After this suit was commenced the defendant Brun resigned as administratrix, presented and secured from the county court an allowance of a claim for $1,128.66 for moneys expended by her during the administration, and was proceeding in that court to secure an allowance as widow when she was enjoined from doing so by the court below. There was no property of the estate of Tillett except the lands and water rights described in the decree in this suit, and the only purpose of Brun's proceedings was to charge this property with the claims she was urging. But, as we have seen, when this suit was commenced the exclusive legal custody of this property for the purpose of sale and conveyance was vested in the court below, and from that time forth proceedings to charge it with or to subject it to claims or allowances in any other forum without leave of the court below were futile. It was by application to, and the decree of, that court, of the court which had the exclusive jurisdiction and control of the property for the purpose of its sale, and by such an application and decree alone, that any claimant could secure any lien upon, or interest in these lands and water rights during the pendency of this suit. In re Tyler, 149 U. S. 164. 183, 188, 191, 13 Sup. Ćt. 785, 37 L. Ed. 689; Virginia T. & C. Steel & Iron Co. v. Bristol Land Co. (C. C.) 88 Fed. 134, 139, 140; Johnson v. Southern Bldg. Ass'n (C. C.) 132 Fed. 510, 544; Freeman v. Howe, 21 How. 150, 16 L. Ed. 749; White v. Schloerb, 178 U. S. 512, 547, 20 Sup. Ct. 1007, 44 L. Ed. 1183. As the proceedings in the county court after its commencement were ineffectual to charge this property or its proceeds with any claim, there was no prejudicial error in the injunction which staved them.
On the other hand, the exclusive jurisdiction and custody of this property for the purpose of selling it to pay the claims against the estate of Tillett, which the commencement of this suit vested in the court below, imposed upon it the duty to hear and determine every claim to a lien upon, to an interest in, or to a right to that property, through the administration of Tillett's estate, adverse to the prayer of the complainant, because all parties who held such claims were remediless otherwise, and because in entertaining the bill and decreeing the