Lewiston teller. [volume] (Lewiston, North Idaho) 1878-1900, 1885-11-26
1AoRToAoINo CLAIMS BEFORE
PATENT

commissioner Sparks under date 0
Oct. Gath 1885, issues letter of instruc
lions to agent Caldwell, which letter h
caused to be published in Idaho AM
which We copied in the TELLER of las
week, in which occurs the following pas
sage: "YoH are Informed that all con
veyances or agreements to sell or traustel
presumption, committed homestead ant
other conditioned claims, before patent il
issued, are in fraudsof law, and that til,
practice Of executing power of sale mort
cages is mere evasion Of the prohibition
against alienation and that such evasivt
tnortagagcs, as we'll as all other convey
ances arc fatal to the validity of an entry
No legal title or claim can pass or be Sc
cured BY any conveyance, whether by
mortgage or otherwise, Of lands embraced
IN non-psteuted homestead or pre- emptiou
entries, and the transferee or MORTGAGE Of
such claims cannot be recognized in any
manner as having right, interest or claim
in such land" This revcrses all former
rulings Of the land Office at Washington
q well as decisions of our courts, and
that Of the Supreme court, aud places in
jeopardy the lands Of numerous settlers
who have made their final proofs and OBJ
tanned their certificates for patent from
the land Offices, but have not received
their patents, as all patents under these
certificates have been suspended by
Sparks, amounting to about 10000 in
number, till his special agents have time
and opportunity to investigate them for
fraud. This will require years of time
70 accomplish. There is no doubt Of the
fact that large lumber Of claimants
have sold their claims after certificate and
before patent, and large number Of
others have either mortgaged their claims
70 obtain money with which to pay the
government price for their land, both
before and after their proofs were given
before the local land Offices, and did this
in the best Of faith towards the govern
ment, because they claimed the right to
do 30 under the law, as interpreted to
them BY the land Office at Washing.
ton, and the courts and the local land
Offices Hence they cannot be charged
with intentional fraud, or with fraud in
fact, however much Mr.. Sparks may
claim they may have committed fraud in
law. TIE cases are numerous in which
this question has been decided in favor of
the settler, BY the department at Wash
ineton, and Mr.. Sparks is the first to
Rive counter decision. We take only
QpA.nk two cases as an illustration Of our
49, ~ -..1-.s-.sn- ,ss--..,>of y1-.rson Va
assertion: In the case .. sla.4I h-iv-ll
Weisbeeker, which can be found in
Cops Land OUner. Secretary, Teller
rendered decision April "a, 1882, the
syllabus Of which decision reads as fol
lows "Under sec. 2262 Of the revised
statutes, : mortgage given by pre.empt.
y ~ security for money loaned him with
whiOA 70 psy the government price for
~ land filed upon, isnot an alienation of
he land nor il il such an agreement as is
prohibited BY law" Aud again 10 the
of acting commissioner, Har-
risoa to H. B. johnson, at Bismarck.
Dakota, found in Cops Land Gunner,
vol. 10, pAp 1873, given Aug. 18th 1883
b shows that "a party holding certi6-
cate for patent can dispose Of whatever
right he may have, and the patent can
sot b defeated, except for fraud and
that fraud must be proved" Again, the
he 6uprems court OF the United States
i the case Of Myers vs.. Crafa, found in
Walhcs, 13th VOL. held that ia pre-
snptor who has entered the land aud at
- time = owner, in good faith, and has
done nothing isconsintant with the psovis-
|ons Of the lsw en- the subject may sell,
svea though he has not yet received
patent" The court here held that a
PATENT i simply evidence Of title aad
hat the pre.emptor has done all the law
requires Of him when he had proved his
peaideace and cultivation to the satisfac.
ion Of the land officers, and has paid the
proper amount TO the receiver. These
lseiaions 1--we sever been reversed up to
~ time Of Sparks letter to Caldwell,
nd they were su6iaent guides to the
oGal o6csrs, to minor courts and to
,laimanls, and we're tie only guides to
hem IN governing their action in such
sases, and we very much doubt the legal
light, and mueb len the policy Of Sparks
u she issue Of patents upon
,erti6catee properly granted by the land
,kcsrs, before Sparks new ruling, and
wen thsn, til the Supreme court has
Icversed it, decision. We have no cap