The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1892-05-24
Two COURTS REVERSED.
Opinions In . Mortgage and 1 Right
Of Way Case Handed
Down.
Rights OF a Prs-smptor to Mort.
gage Land Prior to Final
Proofs.
ArsaMssts Mads i the Case .Cssssrains
b Title to the Mclean Park
Addition.

Two decisions we're handed down by tho
suprsms court yesterday. both written by
Chief Jnstios Blake. the othsr members OF
the court consuming. Ono II : case from
Madison county concerning = mortgage.
Alexander Norris II the appellant In . case
aRainst James D. Hsald Of 81. The action
was cenornsnosd 10 fossclosA three mort
0aRss which wsrs given to secure the pay
msnt Of csttain ~promissary notes. The
court below in passing upon = demurrer 70
the answer, decided thst the case OF Bass
". Ruksr, s Mont, 422. Was applicable 10
the, issus Of law raised BY the plsadings.
and judgment WAS entered for the mort
aaGsss. Charles p. Bradley, ST.. made ia
the year 1877 . prsmption ding upon =
tract Of land. He died in thu year 1879.
The hnal proof was made BY Jesnaetts g.
ksllshsr. ~ administrator for the estate Of
9. p. Bradley, for his heirs, and not other
wise. and patent WAS issued for thsm. After
= review Of the authorities the
suprsus court says: 1--WE are Of
the opinion that the weight
Of authority sustains tho position that an
ordinary mortgage by a ~pre-emptor Of land,
pseor 10 the time Of making his final proofs,
10 not = grant or conveyance within the
prohibitory clause OF section 1859. The
purpose for which I sum of nonsy may be
borrowed becomes material TO show that
the mortgagor is acting in good faith, and
mot in collusion with the mortgages to con-
vsy the title and svads the provisions OF
the law. The loan OF money to enable the
settler to buy seed for planting, or the
necessaries of life. 10 az legitimate a. the
purchase Of land from the government"
Tbs judgment Of the lower court ID reversed
with instructions to proceed o. indicated
BY the opinion.
Ths second case involves an appeal in q
right Of way case in which The Helena,
Of the Northern Pacific. condemned 8 25
acres Of ground in the Cataract mining dis
trict. Jefferson bounty, The owners Of the
Rround q those immediately Interested
were Aaron Hershhsld, E. w. and Gsorge D.
Bosttie, Massena Ballard, John D. Airport
OF the estate Of John Brody. On Feb. &,
1887. the railroad company applied to the
Third judicial district coutt of the terri
tory Of MOntana, in and for Lewis and
Clarke county. for commissions 8 to assess
the damages for its right of way. The
commissioned hled their report. giving the
mentioned $l25 damages. Airport and the
others appealed to the district court in and
for Jefferson county from the assessment
made. In 1890 and 1891 proceedings were
had in the Jefferson county court. under
which the damages were assessed by GER
tain arbitlators. The railroad COMPANY
moved to set aside the award and for 4 new
trial. Both motions were refused and iudg-
mont entered in accordance with the award,
and this appeal has been prosecuted BY the
railroad company. The question was az TO
the Jurisdiction of the district court Of JEFF
fe'son county. Tho supreme court says
that from 1887, whom the proceeding was
commenced. until Nov. 8. 1883, when the
was admitted into the union, the
counties OF Lewis and Clarke and jefferson
were in the same judicial district, and by
VII tue of the statute the dist. let court in
and for Lewis and Clarke county had iuris- |
OF the matter to . certain extent.
The supreme court holds that there was
no authority for the fling of the notice of
appeal in the district court of jefferson
md tho action of the couyt ia
therefore void. Judgment is reversed and
The cause demanded for further proceed
lngs in conformity with the opinion. The
9plon ID based upon the fact that Lewis
Clarke and Jefferson counties were in
The ssme judicial district at tho time of the
Announcement Of the action, but now. bv
Of the constitution, Jefferson.
and Madison form the Fifth
judicial district. The venue was never
hence the Lewis and Clarke
county district court has jurisdiction.