The Globe-republican., 1889-11-20

The contract Is therefore Illegal and
void, and the note and mortgage being
the fruits of the contract must fall with
it. A court of equity will leave the par
ties where it finds them. Not that il
sees anything meritorious in the defend
ant but because no court will lend its aid
to a man who POUNDS his cause of action
upon an immoral or illegal act"
Again in the 9Th MINI. page 422 to
435, in the case of Edwards against Fol-
som the defendant has agreed for val
liable consideration, that he would con-
vey to the plaintiff after final proof Gen.
try) an interest in his land, and the
court says on page Az: at is hardly
necessary to say that such an agreement
made with a pre-emptor concerning
lands he was about to pre-empt under
the act of congress 1S41, would be utter
ly void and so tainted with immortality
as to render it incapable of becoming
the foundation for any rights let alone
the equities. 1t involves perjury under
the act-and nothing more nor less"
In the case of Warren against Var
Brunt, Goth Wallace, pages 65l to 655)
the parties had both filed on fractional
quarter of land and to save expense and
the annoyances of contest they had
agreed that Van Brunt, one of the par
ties, should make final proof upon the
land without molestation by the plain
tiff, and that afterwards Van Brunt
should deed to the plaintiff certain in
terest in said fractional quarter. This
is the kind of contracts that courts en-
courage most and will most readily en-
force-a contract in furtherance of peace
and to avoid litigation. But in this case
the supreme court Of the United States
through Chief Justice Waite says: IAN
entry could not have been made in trust
for Warren, and if it could not have been
made court of equity will not decree
that it was; all contracts in violation of
this important provision of the act 1S4l)
are void and never enforced" Chief
Justice Waite then referred to the MINI.
decision already mentioned, and said L:
"We are satisfied with these decisions. -
Our own supreme court in the case of
Brewster against Madden 18th Kansas
1875, has followed the doctrine laid down
by Judge Waite in the foregoing deci-
sion and the doctrines of the Minnesota
court. At the time of the decision the
supreme court of the state was composed
of Judges Kingman &C. J.) Bailey and
Brewer. The decision was rendered
by Judge Brewer, the other justices con-
curing. 1t is admitted by lawyers of all
classes that Judges Kingman and Bailey
were doubtless the best qualified jurists
of the west at that time, on questions
concerning the public domain and the
laws governing and regulating the same.
They had gained this reputation not on
ly by long years of practical experience
among the settlers, but in the land off,
ces of the west, and their concurrence in
Judge Brewers opinion must necessari-
ly command the greatest respect and
bear with it the greatest weight. In that
decision the court says: 1.-THE terms
grant and conveyance are broad enough
to secure mortgage as much so as the
term alienation in constitutional and
homestead sections and that it
is so used in this section (sec. IA act
Sept. 4, 1S4D is evident from the terms
of the affidavit required that mortgage
is certainly an agreement or contract
by which the contract could inure in
part to the mortgage, and that as the
must swear he has made no
such contract, so the agreement when
made must be null and void. We
are inclined to favor the latter construct
ion and to hold that congress intended
that when the title passed by the entry
final proof to the pre-emptor] it should
pass perfect and unincumbered.
Against these decisions of the supreme
court of Minnesota, Kansas and the
United States, this court has been array
ed the rulings of Secretary Teller and
Villas, and Assistant Secretary Muldrow.
An opinion of the Secretary of the Inte-
rior is entitled to respect; but he is not
a judicial officer and his opinion cannot
override and ride down the opinion of
the highest tribunals of the federal gov
and of this state. His opinion
when not in conflict with the rulings of
court are entitled to the same respect as
an opinion of an attorney general which
no lawyer has ever claimed to be abso-
lutely binding upon a court.
Until the supreme court of this state
and the United States reverse and over
rule the decisions quoted this court is
bound to follow the path mapped out by
these decisions, the rulings of che secre-
tary Notwithstanding.
In the case at bar the plaintiff knew
when it entered into the contract set up
10 its petition, that the defendant was a
and that the titlp tn the land