establishing a different rule, the instruments filed in this case are mortgages and mortgages only.

Counsel have called my attention to the following cases, in which they claim that the court has decided that a mortgage conveys the legal title to the land therein described, viz: Brobst vs. Brock, 10 Wallace, 529; Conrad vs. The Atlantic Insurance Co., 1 Peters, 441; Van Ness vs. Hyatt, 13 Peters, 297; Bank of Metropolis vs. Guttschlick, 14 Peters, 28; and Tucker vs. Ferguson, 22 Wallace, 527.

In the case of Brobst vs. Brock, the court held that "As between the mortgagor and all others than the mortgagee it is a lien, a security, and not an estate; but as between the parties to the instrument or their privies, it is a grant which operates to transmit the legal title to the mortgagee and leaves the mortgagor only a right to redeem."

The United States is not a party to any of these instruments, and hence under the case cited the mortgages are simply a lien.

In the case of Conrad vs. The Atlantic Insurance Company, the court held that the mortgagee holds the estate as the trustee of the mortgagor, and nothing more.

In the cases of Van Ness vs. Hyatt and Bank of Metropolis vs. Guttschlick, in both of which the instruments in question covered lands in the District of Columbia, the court held that the question was to be decided according to the laws of the State of Maryland, which adopted the rule established by the English common law. That rule, however, does not prevail in any of the States and Territories in which the lands covered by the mortgages filed in this case are situated.

In the case of Tucker vs. Ferguson, which involved the right of the State of Michigan to levy taxes on certain lands granted to said State by the act of March 3, 1856, to aid in the construction of a road from Flint to Père Marquette in said State, the court found

First. That the entire road had been completed, and hence that all conditions precedent prescribed in the act of 1856 had been complied with, and the United States, therefore, had no interest in the lands.

Second. That by an act of the legislature of said State the title granted to the State was vested in the company.

Third. It appears in the record of the case that the instruments executed by the company to the trustees were intended to give the trustees the right to sell the lands therein described in order to raise moneys with which to construct the road.

In this case the court held that the title passed to the trustees. The question, however, as to whether the legal title passed to the trustees or not by the mortgages was unnecessary in the decision of the case, and in that respect is merely obiter dictum, for whether the title was absolutely in the company or in the trustees the lands in either case were subject to taxation by the State.

None of the decisions cited, in my opinion, should be considered as authority upon the question presented in this case.

It is a well-settled rule that the law of the State in which the lands are situated control, exclusively, its descent, alienation, and transfer, and the effect and construction which should be given to instruments which are intended to convey the legal title to the same.

In the case of the United States vs. Crosby (7 Cranch, 115), the court said: "The court entertain no doubt upon the subject, and are clearly of the opinion that the title to the land can be acquired and lost only in the manner prescribed by the law of the State where such land is situated."

In the case of Clark vs. Graham (6 Wheaton, 577), the court said: "It is perfectly clear that no title to lands can be acquired or passed, unless according to the laws of the State in which they are situated."

In the case of McGoon vs. Scales (9 Wallace, 27), the court said: "It is a principle too firmly established to admit of dispute at this day, that to the law of the State in which land is situated must we look for the rules which govern its descent, alienation, and transfer, and for the effect and construction of conveyances."

The following cases are to the same effect: McCormick v8. Sullivan, 10 Wheaton, 192; Watts et al. vs. Waddell et al., 6 Peters, 389; United States vs. Fox, 4 Otto, 320; Clark vs. Reyburn, 8 Wall., 318; Brine vs. Hartford Fire Insurance Company, Oct. term, 1877. It becomes necessary, therefore, to determine whether the legal title to lands is conveyed by a mortgage in the States and Territories through which the road and its branches, authorized by the act of July 1, 1862, run and in which the lands granted

thereto are situated.

In the case of Chick et al. vs. Willetts (2 Kansas Reports, 384), the supreme court of that State said: "In this case the common-law attributes of mortgages have been by statute wholly set aside, and the ancient theories demolished. The statute gives the mortgagor the right of possession even after breach, and confines the remedy of the mortgagee to an ordinary action and sale of the mortgaged premises, negativing the idea of title in the mortgagee.

"A mortgage is a mere security, although in the form of a conditional conveyance, creating a lien upon the property, but vesting no title, and giving no right of possession whatever, either before or after breach, and does not limit the mortgagor's right

to control it, except that the security shall not be impaired. He may pass title by sale subject to the lien."

The recent case of Watterson vs. Devoe (18 Kansas, 223), by the same court, is to the same effect.

In the case of Kyger rs. Ryley (2 Nebraska, 20), the supreme court of the State of Nebraska said: "In our State the mortgagor has the right of possession of the mortgaged premises before or after the money is due upon the mortgage, and after decree of foreclosure and sale, and up to the confirmation of the sale by the court. The remedy of the mortgagee is confined to an action for the sale of the pledge, or the mortgaged premises, to pay the debt secured by the mortgage, or to an ordinary suit at law to recover the debt itself.

"The mortgage is a mere pledge, or collateral security, creating a lien upon the mortgaged property, but conveying no title or vesting no estate either before or after condition broken."

The statutes of the Territory of Wyoming require actions to be brought to foreclose a mortgage, and negative the common law attributes of the same.

In the case of Drake vs. Root (2 Colorado, 685), the supreme court of the State of Colorado decided that "until forfeiture a mortgage is security only, which confers no right of entry on the mortgagee.”

The statute of the Territory of Utah negatives the common law attributes of mortgages, and reads as follows:

SECTION 260. A mortgage of real property shall not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover the possession of the real property without a foreclosure and sale." (Compiled Laws of Utah, 478.) The statutes of Nevada and California are in the exact words of the statute of Utah, above quoted.

In the case of Hyman et al. vs. Kelly et al. (1 Nevada, 179), the supreme court of the State of Nevada held that the statute in that State restricted the mortgagee to the equitable remedy of foreclosure and sale, and that he was not entitled to a strict technical foreclosure in equity, and could not maintain ejectment for the mortgaged premises.

In the case of Johnson vs. Sherman (15 California, 287), the supreme court of the State of California said: "A mortgage is a mere security, and does not vest in the mortgagee any estate in the land either before or after condition broken. Payment after default operates to discharge the lien equally with payment at the maturity of the debt."

The following cases are to the same effect: Dutton vs. Warschauer, 21 Cal., 609; Nagle rs. Macy, 9 Cal., 426; Goodenow vs. Ewer, 16 Cal., 461.

From the statutes and decisions above cited it is clear, I think, that a mortgage in the several States and Territories within which the lands granted by the act of July 1. 1862, and the act amendatory thereof of July 2, 1864, are located, is not a conveyance of the legal title to the land, but simply a pledge, a security, a lien thereon, and that no estate is by such instrument vested in the mortgagee, either before or after condition broken.

In each and every of the mortgages presented in this case the legal title, as well as the right of sale and disposition of the lands therein described, is retained in the companies, the trustees indorsing the instrument of conveyance simply to release the mortgages from the tracts conveyed.

If the statutes of the different States and Territories in which the lands described in said mortgages are situated were not what I have found them to be, I should still doubt the right or the power of either of said companies to defeat one of the express provisions contained in the granting act, viz, the right of the government to sell to actual settlers, like other public lands of the United States, the lands remaining unsold after the time limited therein. The grant to said companies was conditional, and they could not defeat that condition by any act not in accordance with the provisions of the act by which the grant was made.

The mortgagees must be considered to have taken the mortgage with full knowledge of the limitations of the right and authority of the companies to make the same. While the companies, by the terms of the mortgages, had the right to sell and dispose of the lands, the trustees were to receive the proceeds of all sales of lands made. This right of the companies to sell the lands having ceased, by virtue of the third section of the act of July 1, 1862, the security of the mortgagees will be subrogated to the moneys accruing from the sales when made by the government.

After full consideration, I am unable to find any reason for the suspension of my decision of July 23, 1878, and you will, therefore, without unnecessary delay, cause the instructions to be issued to the local officers as therein directed.

The papers filed with these applications are herewith transmitted.

Very respectfully,

COMMISSIONER OF THE GENERAL LAND OFFICE.

C. SCHURZ, Secretary.

In pursuance of the foregoing decisions this office issued the following instructions:

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., August 10, 1878.

REGISTER and RECEIVER,

United States District Land Office:

GENTLEMEN: On the 23d ultimo the honorable Secretary of the Interior rendered decision in the case of Nelson Dudymott vs. The Kansas Pacific Railway Company, involving a construction of the last clause of section 3 of the act of Congress approved July 1, 1862, entitled "An act to aid in the construction of a railroad and telegraph line from the Missouri River to the Pacific Ocean, *" (12 Stat., p. 489), which

clause is in the following words:

*

*

"And all such lands, so granted by this section, which shall not be sold or disposed of by said company within three years after the entire road shall have been completed, shall be subject to settlement and pre-emption, like other lands, at a price not exceeding one dollar and twenty-five cents per acre, to be paid to said company."

In accordance with such decision, a copy of which is herewith sent you, the following instructions are given. They will apply only to lands granted by said act of July 1, 1862, as amended by the act of July 2, 1864, and the act of March 3, 1869, authorizing the transfer of part of the grant to the Union Pacific Railway Company, eastern division, to the Denver Pacific Railway Company.

Where any person shall apply to file a pre-emption declaratory statement for a tract, or tracts, not exceeding a quarter section, within the limits of such grant, and where the entire road shall have been completed for more than three years, such applicant will be required to show that he or she is duly qualified as a pre-emptor. Thereupon the declaratory statement will be conditionally received and the proper note thereof made.

You will immediately thereafter call upon the proper officer of the railroad company for a statement showing whether the lands applied for had been sold by it prior to the date of the application to file a declaratory statement therefor.

If the company shall report that the land had been so sold, the report must show the date of such sale, and the name of the person or persons to whom sold, and give a description of the deed or instrument of conveyance. On the receipt of such a report you will reject the application to file a declaratory statement, subject to appeal to this office.

If the company shall state that the land had not been so sold, you will allow the declaratory statement, and upon the applicant showing, at the proper time, a full compliance with the requirements of the pre-emption laws, permit payment and entry at $1.25 per acre.

Each declaratory statement allowed, and entry permitted, should be given its proper number of the current series.

Should the company neglect or refuse to furnish the required statement within thirty days after your call therefor, you will, upon a request by the pre-emption applicant, order a hearing to determine whether the tract or tracts applied for are subject to such filing, giving due notice of the time when and place where such hearing will be held, in some newspaper published and circulated in the county where the lands are situated, notifying said company, and any and all persons, if such there be, claiming title to said lands under it, to appear at the time and place mentioned and show cause why the declaratory statement should not be received.

At such hearing the applicant will be required to prove that he or she is an actual settler upon the land, and a qualified pre-emptor, and that the records of the county, where deeds and conveyances are recorded, do not show that the land had been sold at the date of the application to file declaratory statement therefor; and the company, or its grantee, will be permitted to establish the fact of such prior sale by it.

If the company, or its grantee, fail or refuse to appear and offer any testimony, and the proofs submitted by the applicant be, in your judgment, satisfactory, you will allow the filing of the declaratory statement, and transmit the record to this office for examination and instructions. If both parties appear at the hearing and submit testimony, you will transmit the record to this office with your joint opinion thereon.

As the law requires the proceeds of the sales of such lands to be paid to the company, payment therefor must be made with cash, and not with military bounty land warrants or agricultural-college scrip; nor can a pre-emption filing therefor be transmuted into a homestead entry.

In making returns of the lands thus sold you will transmit separate abstracts of such lands and accounts of moneys received therefor, for each company, in order that such moneys may be passed to the credit of the proper company.

For your information and guidance I subjoin the following list of companies whose

grants are clearly under, or subject to, the terms of the act of July 1, 1862, with the date of the completion of each road, as appears from the records of the department: Union Pacific Railroad, completed July 15, 1869.

Kansas Pacific Railway, completed October 19, 1872.
Denver Pacific Railway, completed May 2, 1872.

Sioux City and Pacific Railroad, completed March 2, 1869.

Central Pacific Railroad, completed July 15, 1869.

Western Pacific Railroad, completed January 21, 1870.

Question as to the completion of the Central Branch, Union Pacific Railroad, has been submitted to the Secretary of the Interior by the company, and is now under consideration. Applications involving that company's lands, therefore, will not be considered by you until further instructed.

Should application be made to file for lands within the limits of grants other than those named above, with allegation that such lands are subject to the same or a like condition as imposed by the act of July 1, 1862, you will transmit the application to this office for instructions.

Military bounty-land warrants and scrip.

The locations made with land warrants granted as bounties for military services under the respective acts of Congress of February 11, 1847, September 28, 1850, March 22, 1852, and March 3, 1855, during the last fiscal year, amount to 84,720 acres, which is less by 12,480 acres than the amount reported for the preceding fiscal year.

No warrants issued under the act of July 27, 1842, which was a continuation of the law of May 6, 1812, appear to have been returned as located, nor have any locations been made with the warrants issued under the special act of Congress approved April 11, 1860, and known as "Porterfield warrants," during the fiscal year.

Tabular statement No. 6, which accompanies this report, will be found to give a full and detailed exposition of the issues and locations of all the warrants granted under the four acts first above named.

This exhibit shows that 550,914 warrants of various amounts, aggregating 60,986,070 acres, have been issued; that 527,811 warrants, calling for 58,357,090 acres, have been located, and that 23,103 warrants, requir ing for their satisfaction 2,628,980 acres of the public lands, are still unlocated.

There are now outstanding and unsatisfied warrants issued under the act of 27th July, 1842, representing 20,480 acres; and under the special warrants act of April 11, 1860, 2,400 acres.

Under the provisions of section 461 United States Revised Statutes, 219 exemplifications of patents, warrants, and papers on file have been made, upon payment of authorized fees therefor, and transmitted to parties in interest, during the fiscal year, while in the same period certificates of approval of the assignments of 371 military bounty-land warrants have been made and recorded, and 564 located warrants have been examined as to the validity and regularity of the titles thereto, and submitted for patent. Many cases have been suspended for want of proper evidence of title.

It was stated in my last annual report that a large number of located warrants were then on the suspended files of the office and withheld from patent on account of various specified defects. I have now to state that special attention has been given to this class of cases, with the con

In pursuance of the foregoing decisions this office issued the following instructions:

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., August 10, 1878.

REGISTER and RECEIVER,

United States District Land Office:

GENTLEMEN: On the 23d ultimo the honorable Secretary of the Interior rendered decision in the case of Nelson Dudymott rs. The Kansas Pacific Railway Company, involving a construction of the last clause of section 3 of the act of Congress approved July 1, 1862, entitled "An act to aid in the construction of a railroad and telegraph line from the Missouri River to the Pacific Ocean, *" (12 Stat., p. 489), which

clause is in the following words:

*

"And all such lands, so granted by this section, which shall not be sold or disposed of by said company within three years after the entire road shall have been completed, shall be subject to settlement and pre-emption, like other lands, at a price not exceeding one dollar and twenty-five cents per acre, to be paid to said company."

În accordance with such decision, a copy of which is herewith sent you, the following instructions are given. They will apply only to lands granted by said act of July 1, 1862, as amended by the act of July 2, 1864, and the act of March 3, 1869, authorizing the transfer of part of the grant to the Union Pacific Railway Company, eastern division, to the Denver Pacific Railway Company.

Where any person shall apply to file a pre-emption declaratory statement for a tract, or tracts, not exceeding a quarter section, within the limits of such grant, and where the entire road shall have been completed for more than three years, such applicant will be required to show that he or she is duly qualified as a pre-emptor. Thereupon the declaratory statement will be conditionally received and the proper note thereof made.

You will immediately thereafter call upon the proper officer of the railroad company for a statement showing whether the lands applied for had been sold by it prior to the date of the application to file a declaratory statement therefor.

If the company shall report that the land had been so sold, the report must show the date of such sale, and the name of the person or persons to whom sold, and give a description of the deed or instrument of conveyance. On the receipt of such a report you will reject the application to file a declaratory statement, subject to appeal to this office.

If the company shall state that the land had not been so sold, you will allow the declaratory statement, and upon the applicant showing, at the proper time, a full compliance with the requirements of the pre-emption laws, permit payment and entry at $1.25 per acre.

Each declaratory statement allowed, and entry permitted, should be given its proper number of the current series.

Should the company neglect or refuse to furnish the required statement within thirty days after your call therefor, you will, upon a request by the pre-emption applicant, order a hearing to determine whether the tract or tracts applied for are subject to such filing, giving due notice of the time when and place where such hearing will be held, in some newspaper published and circulated in the county where the lands are situated, notifying said company, and any and all persons, if such there be, claiming title to said lands under it, to appear at the time and place mentioned and show cause why the declaratory statement should not be received.

At such hearing the applicant will be required to prove that he or she is an actual settler upon the land, and a qualified pre-emptor, and that the records of the county, where deeds and conveyances are recorded, do not show that the land had been sold at the date of the application to file declaratory statement therefor; and the company, or its grantee, will be permitted to establish the fact of such prior sale by it.

If the company, or its grantee, fail or refuse to appear and offer any testimony, and the proofs submitted by the applicant be, in your judgment, satisfactory, you will allow the filing of the declaratory statement, and transmit the record to this office for examination and instructions. If both parties appear at the hearing and submit testimony, you will transmit the record to this office with your joint opinion thereon.

As the law requires the proceeds of the sales of such lands to be paid to the company, payment therefor must be made with cash, and not with military bounty land warrants or agricultural-college scrip; nor can a pre-emption filing therefor be transmuted into a homestead entry.

In making returns of the lands thus sold you will transmit separate abstracts of such lands and accounts of moneys received therefor, for each company, in order that such moneys may be passed to the credit of the proper company.

For your information and guidance I subjoin the following list of companies whose