Idaho semi-weekly world. [volume] (Idaho City, Idaho Territory) 1875-1908, 1885-12-04
MORTEAGING CLAIMS BEFORE
PATENT.

The following, from the Lewiston
Teller, in regard to the seemingl,
unjust and unprecedented ruling q
Commissioner Sparks, is an able ar.
ticle, and we give it in full:
Commissioner Sparks, under date
of October "a, 1885, issues letter Of
instruotiontto agent Caldwell, which
letter he caused to be published in
idaho, and which we copied in the
Teller OF last week, in which occurs
the following passage: "You are in
formed that all conveyances or agree
ments to sell or transfer presumption,
committed homesteads and other con-
ditioned claims, before patent is is
sued, are in fraud Of law, and that the
practice Of executing power of sale
mortgages is mere evasion of the
prohibition against alienation and
that such evasive mortgages, as well
as all other conveyances, are fatal to
the validity Of an entry. No legal IT,
Ito or claim can pass or be secured
by any conveyance, whether by mort
gage or otherwise, of lands embrac.
ed in non-patented homestead or pre-
emption entries, and the transferee or
mortgage of such claims cannot be
recognized in any manner as having
right, interest or claim in such land.n
This reverses all former rulings of the
Land Office at Washington, as we'll
as decisions Of our courts, and that of
the Supreme Court, and places in jeopar-
dy the lands Of numerous settlers who
have made their final proofs and obtained
their certificates for patent from the land
offices, but have not received their pat.
ents. as ell patents under these certificates
have been suspended by Sparks, amount.
ing to about 10000 in number, till his spe-
cial agents have time and opportunity to
investigate them for fraud. This will re-
quirc years oftime to accomplish. There
u no doubt of the fact that large num-
Der OF others have either mortgaged their
claims to obtain money with which to
pay the government price for their land,
both before aud after their proofs were
given before the local land offices, and did
this in the best of faith towards the gov.
ernment because they claimed the right
to do SO under the law, as interpreted to
them by the land office at Washington,
and the courts and the local land offices.
Hence they cannot be charged with in
territorial fraud, or with fraud in tact,
however much Mr.. Sparks may claim they
may have committed fraud in law. The
cases are numerous in which this cues
ton has been decided in favor of the set
tier. by the department at Washington,
and MIR. Sparks Is the first to give coun-
ter decision. We take only one or two
cases as an illustration of our assertion
In the case Of Larsen VS.. Weisbeeker.
which can be found in Copp's Land Own.
er, Secretary Teller rendered decision
April "a, 1882 the syllabus of which de,
cision reads as follows "Under section
2,26e of the revised statutes, a mortgage
given by pre-emptor as security for mon.
ey loaned HIM with which to pay the gov.
eminent price for the land filed upon, is
not an alienation of the land nor is itsucb |
an agreement as is prohibited by law.
And again in the instructions of acting
commissioner, Harrison, to III. B. John.
son, at Bismarck, Dakota, found In Copp's
Land Owner, vol. 10, page 1913, given Au-
gust Is, 1888, he shows that "a party hold.
ing certificate for patent can dispose of
whatever right he may have, and the pat
ent cannot be defeated, except for fraud, /
and that fraud must be proved" Again,
the Supreme Court of the United States
in the case of Myers vs.. Craft, found in
Wallace, 18th vol, held that "a pre-emp.
tor who has entered the land and at the
time is owner, in good faith, and has done
nothing inconsistent with the provisions
of the law on the subject may sell, even
though he has not yet received a patent"
The Court here held that a patent is simp.
ly evidence OF title and that the pre.emp.
Tor had done all the law requires Of him
when he had proved his residence anu cul.
tivation to the satisfaction of the land of
ticers, and has paid the proper amount to
The receiver. These decisions have never
been reversed up to the time of Sparks
letter to Caldwell, and they were sufficient