Delta chief., 1884-01-16


intention of the parties so that the perform
ance of the contract may be enforced accord
ing to the sense in which they murnally un-
derstood it at the time it was made" BELL VS..
Buen, Howard, 1863; Lawrence VS.. Mccall
mont, 9 Howard, 425; Pick, 21s).
The ease shows that Weisbecker executed
mortgage upon the land covered by his filing
security for money loaned him with wi ich
to pay The government price for it. That he
did not intend thereby that the title should
inure 10 some other than himself appears
from the facts that he made a conditional
alienation of the land only, when, had his
purpose been different he might have made
an absolute conveyance; that he used the
money in payment of land, title to which,
necessarily under the law, vested in himself
and not in the mortgage; that he subse-
quently repaid tl0 loan and the mort gage was
discharged, thus leaving no right whatever in
the mortgage; and that there is no evidence
tending even to show that he executed the
mortgage for any other purpose than as secur
ity for the money loaned. Besides it was a
contract which could not he enforced against
Weisbecker To the loss of his title because by
payment Of the loan he could defeat such loss
and thus no title could inure to the mortagee.
"A mortgage is a conveyance of real estate
by way Of pledge for the security of debt,
and TO become void on payment of it, a
Kent 1851.
TIE statute under consideration requires
the defeat of his right of entry, a contract by
force of which title 10 the land must vest in
some other person than himself; and il must
appear that such was his intention at the
time Of making it. If. on the contrary, the
mortgage was mere security for money
loaned. and the contract does not necessarily
divert the title from him. il was not contract
or agreement within the meaning of Section
2262. In constituting this section the L. :.
Supreme Caurt says, Myers vs.. Croft. l3
Wall, 2gll: at has been the well-defincd
policy of Congress, in passing these tpre-
-mptionl laws, not to allow their benefit 10
inure To the profit Of land spectators, but
this wise policy often defeated EXper-
fence has proved that designing persons, be-
ing unable Ia purchase valuable lands on ac-
count of their withdrawal from sale, would
procure middle men 10 occupy them tempor-
arilr, under an agreement to convey To them
they were entered by virtue of
their pre-emption rights when this was done
and the speculation accomplished. the lands
were abandoned. This was felt to be a serious
evil and Congress undertook in the law un-
der consideration To remedy it by requiring
of the applicant for pre-cmption, before he
was allowed to enter the land on which he
had settled. TO swear that he had not con
trnct.d II away, nor settled upon IL to sell il
ON speculation. but in good faith to nppro-
pirate il To his use"
IL is clear. l think, under these facts, that
N'irht'h'r ulp eufil u CONTRACT OF
agreement a. is contemplated by the statute.
aud hence that he did not lose his right of
entry. This law was intended to prevent
speculative entries, but if pioneer settler,
struggling for home for himself and fami-
ly. i compelled by his necessities. Temporal
rily to mortgage his land that he may paw for
it and secure ii to hishsclf and his good faith
is manifest, and in the absence of all iraudu,
lent or Illegal purposes discover reason
why the Government can reasonably object
thereto or that it is within any prohibition of
the law. Weisbecker appears To be one of
that class of poor but worthy citizens for
whom Cnngrcs, lcgislatcd in the prc-emption
laws. He mortgaged his land for no specu-
lativc nor improper purposes, but that by
means thereof the title might invest in him
self aud not in another. | am therefore of
the opinion that his entry should not be for
fcited by reason thereof.
Your decision cancclin- his entry is revcrs.
Ell, but eases adjudicatcd under a different
view Of Section 1862 will not be rcopened.
The principle here announced in respect TO
said section will he applied To future cases
only.
The papers transmitted with your letter OF
August 81, are herewith returned.
Very respectfully,
ii. NJ. TELLER, Secretary.