15 Kan. 249 | Kan. | 1875
The opinion of the court was delivered by
Is a mortgage given by a preemptor prior to the entry of the lands, void? and if so, are his heirs estopped from setting up its invalidity in an action to foreclose the mortgage? These'are the only questions presented in this case. The mortgage was on the lands entered, and on four town lots. It was given long before the entry, and to secure simply the purchase-price of the four lots. Intermediate the mortgage, and the entry, the mortgagor died, and the entry was made by the widow, in the name and for the benefit of the minor heirs. Sec. 13 of the act of congress of September 4th 1841, (U. S. Stat. at Large, p. 456,) provides that before an entry shall be allowed, the claimant shall make oath that “he has not directly or indirectly made any agreement or contract, in any way or manner, with any person or persons whatsoever, by which the title which he might acquire from the government of the United States should inure in whole or in part to the benefit of any person except himself ; ” and it also provides, that “ any grant or conveyance which he may have made, except in the hands of bona fide purchasers for a valuable consideration, shall be null and void.” The question is not free from difficulty. On the one hand it may be said that, as viewed in this state, a mortgage is neither a grant, nor a conveyance, and therefore not within the letter of the statute; that a statute like this ought not to be extended by any construction beyond its plain letter, nor held to invalidate transactions not specifically and directly forbidden; that often a preemptor needs assistance to com
The judgment will be affirmed.