Wilcox v. John, 21 Colo. 367

21 Colo. 367 | Colo. | 1895

Chief Justice Hayt

delivered the opinion of the court-.

Appellee claims title through two sources, viz.: 1st. A purchase made under the trust deed, of .the preemptor to McChesney, to secure the payment of a debt due from him to Hall. 2d. The judgment, levy and sale resulting from the suit of Pauly and George.

It is conceded that the title under the deed of trust is prior in point of time to that claimed by appellants, and it is also admitted that all the necessary steps, such as-recording, foreclosures, etc., under the trust deed were duly taken, the single question being as to the right of a preemptor to mortgage the land before making final proof and obtaining a receiver’s receipt for the same.

Appellants claim that a trust deed given under such circumstances is in contravention of section 2262 of the Revised Statutes of the United States, which requires of the preemptor, among other things, an oath “that he has not settled upon and improved such land to sell the same on speculation, but in good faith, to appropriate it to his own exclusive use; and that he has not, directly or indirectly, made any agreement or contract, in any way or manner, with any person 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.” It is further provided 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, except as provided in section 2288.”

It has been held in a few cases that a mortgage or a deed of trust upon land is a grantor conveyance within the meaning of the statute, and consequently void. Brewster v. Madden, 15 Kan. 249; Brake v. Ballou, 19 Kan. 397; Ainsworth v. Miller, 20 Kan. 220. And this seems to have been the ruling of the land department at one time, but as early as 1882, Mr. Teller, the secretary of the interior, called attention to the unsoundness of the prior decisions of the department, and in a carefully prepared opinion held that the mere possibility of a title resulting for the benefit of another person, as in the case of a mortgage, was not sufficient to prevent the preemptor from obtaining patent. The rule tlien announced has, we think, been uniformly followed by the department since. It is founded upon sound reasons, and in practice it has not infrequently been of benefit to settlers in negotiating loans to carry.them over periods of drouth, or of business depression, and should be maintained if not inconsistent with the terms of the statute, as it is of the highest importance that the decisions of the courts in these matters should be in harmony with the rulings of the land department.

The rule contended for by appellants, whereby a mortgage is held to be interdicted, is founded upon a somewhat forced construction of the words “grant” and “ conveyance ” as used in the statute. By the later, and, as we think, the better considered cases, it is held that neither a mortgage nor a deed of trust is a grant or a conveyance within the prohibitory clause of the statute. Norris v. Heald, 12 Mont. 282; Fuller & Co. v. Hunt et al., 48 Iowa, 163; Jones et al. v. Tainter et al., 15 Minn. 512.

’ It is not claimed in this case that the deed of trust was executed for any purpose prohibited by the statute. On the contrary, the bona fides of the transaction is admitted. The title procured by plaintiff as a result of the foreclosure and sale being in all respects regular, must be upheld. This renders any consideration of appellee’s second source of title unnecessary. The judgment of the district court is affirmed.

Affirmed.