The Hillsdale standard. [volume] (Hillsdale, Mich.) 1851-1909, 1877-06-19
NUMBER 1898.
aomain Of The United st.,As or tsrri.

domain of the United States. or terri
tory belonging 10 il. which homestead
II profiered TO the settler. and settle
ment thereon invited by Congrsss an
der an Act passed with view TO dis.
pose OF the public domain, and thus TO
carry into execution the authority con-
ferred upop Congress for that purpose.
The question seems to be, whether
the declaration Of such exemption,
made in order to induce settlement up.
ON and cultivation OF the soil, is the
exercise OF power granted by the
words 'to make all needful rules and
regulations
II Ia obvious that what may, or may
not be a needful rule or regulation. II
a question vested very largely, IL not
entirely in the sound discretion OF Con-
gress is 70 Judge and determine for Il.
self what may on may not be needfni
rules or regulations in the premises,
aud such Judgment having been exer-
cised. and rules and regulations made
il is not for the courts to over-rule its
determinations. The neceesi-
ty for the regulation rests in the discre-
ton Of Congress. aud its decision Is
conclusive in all other places and in
all Judicial tribunals. Tho enactment
becomes the supreme law OF the land,
aud the judges in every State ara
hound by IL. - . s--s Gle Va. Hal
lack, 80 Wis, 523. = 40
A mortgage, executed after final
proof has been made, but before patent
Issued is valid and may be enforced.
BY the Court. = ,--isc- & IC.
at does not seem 10 ms that Con-
gress intended by this act TO place any
restrictions on the owners control OF
the land. The limitation was on tho
creditor, and not upon the debtor.
While the land might not be taken
| from against his will for the satisfao-
ton of past Indebtedness, yet, he was
not prohibited from appropriating IL.
il he desired, therefor: +.
He might convey it as freely as other
land, and for such consideration as sat
| isfied him. His deed passed good
| title, and he could not thereafter avoid
that deed by showing that the consider-
alton therefor, was past Indebtedness;
and il he could convey absolutely, 90
he could conditionally. 1sw* Now
in tkis case, the land is not taken in
execution because Of the debt simply,
but because the owners voluntarily ap-
propriated IL TO the payment OF such
debts." . Watson VS.. yoor-
bees, IA Kan, 1928.
After the law has been complied
with by the FIVE years settlement re-
quired, o mortgage on the homestead
may be enforced. --From the report 1t
cannot be determined whether hnal
proof had been made, or when the
mortgage was given. whether previous
10 or after the i've years settlement
had expired-)
y By the Court:
- "The question presented
for our decision il whether home
steal taken under tho Act OF Congress,
may be conveyed by mortgage, execut-
ed by the homestead settler 20 secure q
debt contracted prior TO the issuing OF
the patent for the land.
II cannot be denied that indepen.
deut of the provisions of the Act oi
Congress of May 20, 1862, above quot
ed. the defendants had an interest In
the lands in question, though no pat.
. ent had been issued to them, which
they could convey by mortgage that
would be valid lien thereon. Pier
| son vs.. David, Iowa. %.
"Does the provisions of the Act o,
Congress just referred TO (Sec. 4 o.
Homestead Act), render invalid Z
) mortgage upon the homestead settler
I interest in case no patent has been is
a sued to him? The provision ia clearl,
|, Intended for the protection OF the SET
|. .iA- IL il not a limit or restrictio!
: upon the right he acquires TO the land
4 neither does it operate as q disabilit,
|. forbidding the sale or transfer OF hi
interest in the land. This view Is Ger
O tainly correct in case the settler ha
4 done all the law requires OF him TO d
4 in order to obtain patent, when b
= has right TO the patent, and il ha
> not been withheld through his fauit
= In such case his right 10 the Lam
/. would be full and complete.
o Now the provision in question is nc
: a restriction upon his right-it is not
limit upon his right 10. dispose OF th
Il land in a manner recognized by law.
a The law recognizes his right to COZ
/. yey his land by mortgage; such an II
4 strument when executed in valid forl
;s upon his homestead must be enforce,
se The provision is intended rs
shield for his protection, and Is not
weapon for the destruction OF any
IN his rights. c- - -.a
w. In the case before US defendants d
Of not desire to invoke its protection, b,
or exercised their right TO convey q
ed land by mortgage, thus creating . h'
mt thereon" laa a. 49,
he Nycum We. McAllister. SO Iowa. 81
le