Another v. Buker

• Decision Date: 24 January 1887
• Citation: 6 Mont. 442
• Parties: BASS and another v. BUKER and others.
• Court: Montana Supreme Court

6 Mont. 442

BASS and another

v.BUKER and others.

Supreme Court of the Territory of Montana.

January 24, 1887.

Appeal from district court, Missoula county.

Proceedings to foreclose a mortgage.

Stevens & Bickford, for appellants.

Woody & Marshall, for respondents.

BACH, J.

This is an appeal from a judgment, and from an order denying a motion for a new trial. The grounds upon which the motion for a new trial was based are (1) insufficiency of the evidence to justify the decision and judgment of the court; (2) that said decision and judgment are against the law.

The statement on the motion for a new trial does not specify the particulars in which the evidence is alleged to be insufficient, therefore we cannot consider that question. See subdivision 3, § 287, Code Civil Proc.; Taylor v. Holter, 2 Mont. 477.

Second, that the decision and judgment are against the law. The judge presiding at the time held, as conclusion of law, that the mortgage sought to be foreclosed was void. There being no question properly before us as to the sufficiency of the evidence to sustain the rulings of the court upon the facts at issue, we must presume, not only that the evidence justified all the findings of fact, but also that all the facts at issue necessary to sustain the decision were found by the court below. See Beck v. Beck, 6 Mont.-, 12 Pac. Rep. 646. Those facts are as follows: That the defendant Andrew Buker, on the tenth day of January, 1872, did settle upon and improve the premises described in the complaint and mortgage; that those premises were part of the surveyed lands of the United States, subject to entry under the pre-emption laws; that said Buker filed his pre-emption claim for said premises in the proper office, on the fifth day of March, 1874; that on the sixteenth day of September, 1881, the said Buker had not completed his title to said lands as by law required; that the mortgage sought to be foreclosed was executed upon the sixteenth day of September, 1881; that the defendant and respondent Warner, by mesne conveyances, made subsequent to said mortgage, became seized and possessed of all the right and title of said Buker in and to said premises; that the plaintiff was not a bona fide purchaser for a valuable consideration; and, omitting the intermediate steps, that said Warner, after complying with the requirements of law, has received from the proper office the “final receipt” for said premises as a pre-emption claim.

The issue raised by the pleadings is that the mortgage referred to was void under section 2262 of the United States Statutes, and that was the decision of the court below.

Section 2262 of the Revised Statutes of the United States provides that, before a pre-emption shall be allowed, the claimant shall make oath that “he has not, directly or indirectly, made any agreement or contract, in any 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 the same section further provides that “any grant or conveyance which he may have made, except in the hands of a bona fide purchaser, for valuable consideration, shall be null and void.”

It is claimed by the appellants that the words “grant or conveyance” do not include a mortgage; that a mortgage, by our laws, does not pass the title to the land, but is a mere security or lien for the note. The authorities are at variance upon this question.

The supreme court of California has held that such a mortgage was absolutely void, as against the mortgagor and his assigns, excepting a bona fide purchaser. See Bull v. Shaw, 48 Cal. 455.

The supreme court of Minnesota held mortgages to be within the terms “grant and conveyance,” and that they were therefore void, except as provided in the statute, in several cases, among others in McCue v. Smith, 9 Minn. 259, (Gil. 237;)Woodbury v. Dorman, 15 Minn. 338, (Gil. 272.) But the same court, in a later case, reversed that doctrine, and held that a mortgage was not included within the terms of the statute; and the court bases its decision upon the ground that a mortgage is a mere security, and does not act as a conveyance. See Jones v. Tainter, 15 Minn. 512, (Gil. 423.)

The supreme court of Kansas holds, with the California supreme court, that a mortgage does come within the terms of the statute. Brewster v. Madden, 15 Kan. 249.

In the case of Owings v. Lichtenberger, 9 Copp, Land-Owner, 197, in a letter dated November 17, 1882, the Hon. Henry M. Teller, then secretary of the interior, writes upon this question as follows: “It is claimed by plaintiff's counsel that the mortgage given by plaintiff before his removal, was a disposition of his homestead. *** I do not think this view of the case can be maintained. At common law the title passed to the mortgagee, but the rule of the common law has been changed by statute in most of the states, and in such states the legal title remains in the mortgagor. In Nebraska a mortgage of real estate is a mere pledge or collateral security.”

We think the honorable secretary of the interior and the supreme court of Minnesota apply the wrong rule of interpretation to the section 2262, by not first ascertaining what the nature of a mortgage is in Nebraska and Minnesota. They, in effect, declare that a United States statute is to be interpreted through the medium of a statute of a state. Whatever may be the meaning of the words “grant...