Delta chief., 1884-01-16
DEPARrNEST ov THE INTERIOR,
OFFICE OF THE SECRETARY, ,
~ ASIitNI1uS Ii 4 Anril N iAsl L

DEPARTMENT OF THE 1STEgI0g.l
OFFICE OF THE SECRETARY,
WAsIiISGToS, ID. C. April -, lss2.
! The Commissioner Of the General Land Office:
SIR have considered the case of Cariey
! Larsen vs. p. &. Weisbeckcr involving the
:. f.. Of Sec. -, TIP. 40, X. ~, Crookston,
I Minnesota on appeal by Weisbecker from
4 your decision of February IL, 1851, holding
( his declaratory statement No. 1907, and hi,
[ cash entry No. 702, for cancellation, and
] awarding the tract To Larsen.
IL appears that Larsen filed declaratory
/ statement February -, alleging settlement
I February 20, ls7s and that Weisbecker filed
I declaratory statement June 23 alleging set
| Element June q, 1876, and made final proof
{ and payment November -, ls7s.
Larson alleged Weisbecker's want of good
/ faith. in that he abandoned the land more
I than six months prior To his tI-arson'sl filing
and hearing was held in May, 1879. Gour
decision sustained the allegation. You also
found the further fact tina, Weisbeckcr had
executed mortgage on the land for $3.50
Z prior Ia his entry, which was outstanding at
the date thereof, whereby he violated pro.
vision Of Section zoe Revised Statutes and
{ rendered his entry subject to forfeiture.
1t appears that Wcisbccker sworc in his
l pr.-emption proofs NOV. 22 1881 that 4"
I have given a mortgage for $3.50 Ia enable me
/ To prove up on t." He made his entry on
I November 25, paying hi. purchase money of
Z Sioo. \ certified copy Of mortgage Is pro-
uuCsti, lgtfl anu elsn'Tl ~ lNss, from
Weisberkcr and his wife to Eddy, Erskinc 4
/ Co.. upon the land in question, 10 secure
! the payment of promissory note of $50. Of
/ the same date, payable in one year. The
! mortgag. appears not to have been acknowl-
| edged until Nov. 2G-the day following the
I .ntry-and was recorded the same day. The
/ note was paid Nov. 10, 1879 aud the mort
I gage then discharged. Weisbccker and his
wife Ole an affidavit that the negotiations for
I the loan were made on the 2ist, and that the
I mortgage drawn ON that day, hut not cN.
Z ceutcj, delivered nor acknowledged until the
10Th. Eddy, one Of the mortgages aud
. Stack. the notary before whom il was &c.
I knowlcdg-j, fle atiidarits 10 the same effect.
Thc-- facts seem Ia show that, although the
I contract for the loan was mad. and the mort.
] gage signed before the date of entry. il
/ was not acknowledges nor delivered until af-
/ ter the entry; and that his prescription state
Z mcnt that he had given mortgage To enable
him Ia prove up on the land, had reference
rather Ia his negotiations, and perhaps re-
ccipt Of the money, than Ia til. nctual exccR-
I ton and delivery of the mortgage. The
I question, however, Is not material. for whc,h-
ar the mortgage took effect before or after his
entry did not in my opinion defeat his rights
Section 2262 Revised Statutes provides that
before any person claiming the benefit of
this (pre.cmpiion) chapter is allowed To enter
lands, he shall make oath that he
has not, directly or Indirectly, made any
2
with any person whatsoever, by which the
title which he might acquire from the Gov
crnmcnt of the United States. should inurc
in whole or in part to the benefit of any per
son except himself"
am aware that the former rulings of your
office and of this Observation-Disclosures the
precedent Of early decision-havc held
| that an outstanding mortgage given by pre-
cmptor upon the lands embraced in his filing
defeats his right of entry upon the ground
that such mortgage is a contract or agreement
by which title to the land might inurc tn
some other person than himself. 4 careful
consideration OF this section leads me TO dif.
fcrcnt conclusion. and to the opinion that nm
less IL shall appear under the rules of law ap.
plioablc io the construction Of contracts or
otherwise tha, the title shall inurc to another
person, it does not dcbnr the right Of entry |;
and that the mere possibility that the title
may 50 rcsul,-as in the case of AN ordinary
mortgages not sufficient To forfeit the claim.
The term contract comprises in its full
and more liberal Specification any description
! of agreement, obligation or legal tic whereby
a party binds himself or becomes bound, cx.
pressly or implied by, To another, to pay n
/ sum Of money, or TO do or not to do certain
| act; but in its more familiar sense il is FIRE.
qucntly applied To agreements not under seal
and this is evidently its proper use, q Chtty
on Contracts, ~ Contract is nm agreement
upon sufficient consideration. to do or not to
| there arise three points to be considered: /:
First--Thc agreement Sccond-The consid-
cratiou, and Third-rhc thing to he done or
omitted" t2 Black. Com, ii1.l
As defined by American authorities, n con
tract is nm agreement between two or more
parties To lo or not 10 do particular thing,
| (Tancy, Ch. j., II Peters, 40, 562l; an agree.
mcnt in which II party undertakes to do or
not To do particular thing, tNarshall, Ch.
j., Wheat. 1917; an agreement between two
or more parties for the doing or not doing of
some specified thing, q Parsons ON Cont, 81;
mn agreement of two or more persons. upon
sufficient consideration, to do or not to do u
particular thing, g Kent, 400. Under these
definitions there seems essential difference
between contract aud nm agreement, and
the use of either word alone would in my
opinion have expressed the intention of Con.
grcss IN the enactment of this statute as fully
rs do the two.
1t is also familiar rule in the construction
and Interpretation of contracts that the intcn.
ton of the parties, II consistent with the
rules of law, must prevail: and where this is
sufficiently apparent, effect must be given
thereto even though some violence be thereby
done to the words of the contract, Il Chitty,
Il. LII A .