Seattle daily post-intelligencer. [volume] (Seattle, W.T. [Wash.]) 1881-1888, 1885-11-18
AusSATIsS o. LANDS.
sxrss Posr -IETu--IoxScEa:

au7sa Posr-IEru.-Io1cEs
\. voor DAILY Of the l4.h instant yo1
..sjisb the Iettsr Of Commistionef
ss,ts of tne 0sueral Land Onloe of
- O ,,sber 2lth. 10 Mr.. Caldwell,
srsisI Land Agent at Lewiston, Idaho
n which be says to she special laa<
ae~nt: ... IN
.ccss or agreements 70 cell OF transfer
-. smpt,on. commated homestead and
-, conditional clains. eefofe pstens
Z issosd, are In fraud Of isv. and the
ehs oractice OF executing power OF sale
.oe,eaaes is a mere evasion Of the pro
htbition against Alienation. and thai
such evasiye mortgages - veil a. ali
sxber copveyaucss are fatal TO the va
Iidty OF an entry. Ne legal title or
sisirn can pass or be secured BY any
eonveyancs. vhsther by mortgage or
satsuted homestead or pre- empsion en-
ines. and the sransferee o. mortgages
Fl sush claims cannot bs recognized IN
any manner as hsving any rignt, inter.
- or olain 10 such land"
Thess rulings Of the Land Oaics are
svidsntiy too sweeping.
A pre- emptof for instance. Who In
GOOD faith proved up on and paid for
bis land and TO whom certificate Tor
patent has issued, oannos under these
rulings sell or mortgage until the patent
is issued. The patent may BE- delayed
for years, and heass the land 10 tied no
for years.
4. has been the custom In new coan
tries 10 freely aiienase tnf % lands afssr
shs Gsvernmeps has received paymsns
aud Issued @ certificate for patent. To
forbid the alisnation nos would work
hardship TO the entife west j can sse
coed reasons for these rulings, as appli-
cable to cases arising prior TO payment.
bat After payment TO Government no
seod reason occurs 10 me Why these
lands may not be sold and mortRa9sd.
NJ, Sparks forther adds that "the pre-
smption Las prohibits oonveysnses or
agreements TO convey title, and section
2963 makes all assignments and trans
fers before patent absolutely null and
void Toe last clause Of this section
Fssds a. folloss: "AHd all assign
nepts and transfers OF the right hereby
spcured, prior 10 she issuine of the
pstsnt, shall be null and void" This
slsnse might seem TO sustain che railing
Of Mr.. sparks, bos the trouble is the
Uujted States Suprsme Court, in the
ease Of Myers vs.. Croft. 1S Wallace, q.
siI in considering this very question.
holds that the right referred 10 IN shis
eIsuss Of the statute IL the right pre-
smpsos has in the land existing prior to
bis proving up and paying therefor. and
d no rsstriction upon the power OF
alienation after payment and before
shs psesus 10 issoea. Phe opinion was
By Jades David Davis, and 10 oonstru-
ine this clause he said:
The inquiry 10, what did the Leois-
isturs intend by this prohibitionr Did
Il mean 10 disqaalify the pre- emptor
Who had entered the land from selling
u d eli until be had obtained his pat
snt, or did the disability extend only
70 the assignment Of the pre- empsion
dehtf Looking at the language en-
pioyed. o. veil a. the policy of Congress
q he subject, IL woald follow that the
intefdistion was intended TO apply 70
tbs right secured by the act, and did not
70 farther.
THIS was the right 10 pre- empt .
quarter section Of land bs settling upon
and improving 10, At the minimum
prics, NO matter what lie value may be
when the time limited for perfscting
the pre- s-emption right expires. This
right vas valuable, and independently
Of shs legisiation OF Congress assign
shls.
Toe object Of Congress vss attained
when the pre-emptor went, With clean
hapSs 20 the Land Ofios and proved
% his right, aud paid the Govsrumens
fer BIZ land.
Rsssrictiou upon the power Of aliena
tioR after this would injare the pre-
smrtor, and could serve no important
pusposs Of public policy. II 10 well
kuoWn that p ,tents do not issHe in the
usual course II business In the General
Land Offioe until several years after the
pstsacats Of entry h given. aud eQasiDy
uell known thai nearly all the valuable
Iaads 10 the new States, admitted since
l6ll. have been taken 40 under the pre-
smpsion laws. aud the right 10 sell them
freely exercised after the claim was
proved up. the land paid for aud the
certificate Of entry received. In view
of these facts We cannot suppose. In the
aoDsnee Of an express declaration 10
that effect. that Congress intended to
ts ap these lands in the hands Of the
srieinAl owners. until the 0ovefnment
ehould choose 30 issue the patent.
II n bad been the purpose OF Con
nssss 10 attain the okjsct oontsnded for,
d vsald have declared the lands them
ssives inalienabls until the patent was
granted"
TIE Oommissioner's ruling.if Il ooald
b enforcsa, vould not be salutsry In
~ e6ects ID o new country like this,
where the custom 90 freely aiietate and
msftaacs has ~, aouerallv pfeyaiied in
I'll cases vhere the Government has re.
estsed payment for the land. and has
~ Jet issued the patent.
J.R. KnsRAk-
eRArrLx. November l7th. 1896.