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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, becam: 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 á 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. T'ainter, 15 Minn. 512, (Gii. 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 dis. position of his homestead.

I do not think this view of the case can be maintained. At common law the title passed to the nortgagee, 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 or converance” in section 2262, it is certain that there cannot be two proper interpretations of the same statute. It is equally certain that the section contains one rule of law, and no more, on this subject, and that that rule applies to mortgages upon pre-emption lands, wherever

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situated, with the same force and effect. If the true interpretation of that section is to be governed by the character of a mortgage in the different states and territories, there would be at least two distinct and contrary rules apply. ing to mortgages and pre-emption claims; for some of the states hold that a mortgage passes the title, while others—by force of some statute, in most cases-hold that a mortgage is a mere security. We would, then, reach the conclusion that the validity of such a mortgage would depend upon the situation of the land. That, certainly, cannot be the law. A mortgage upon pre-emption lands, made before final entry, is either valid or void under that section. If valid in any state, it is valid everywhere; if void in one state, it is void in all states.

The true rule of interpretation is, “What did congress mean?” pose of congress undoubtedly was to furnish all and every encouragement to settlers upon the public lands, and to legislate so that, neither directly or indirectly, by virtue of the law, should those lands become the property of a few. And this section provides every possible safeguard against any alienation by the settler, up to the time of the final conveyance by the government. One portion of the section provides that 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.” These words show the evident purpose of the government, and, in the light of those words, the expression “grant or conveyance” is clearly meant to include a mortgage.

But there is still a further reason for such an interpretation. Section 2262 became a law in 1841. 'At that time the courts of the state of New York were the only courts that held that a mortgage was a security only. Even at this late date the following states: Alabama, Arkansas, Connecticut, Illinois, Kentucky, Maine, Maryland, Massachusetts, New llampshire, New Jersey, North Carolina, Ohio, Pennsylvania, Rhode Island, Tennessee, Virginia, and West Virginia, -hold the old common-law doctrine that the mortgagee has the legal title. In New York alone the courts, without the aid of a statute, hold a contrary doctrine. In the other states which hold a mortgage not to be a conveyance, the rule depends upon express statutes, passed long after 1841, when section 2262 was made law by act of congress. Then we must consider what a mortgage was considered to be in the year 1841. And, so considering, we are forced to the conclusion that a mortgage is included within the words "grant and conveyance” in section 2262, and that the mortgage sought to be foreclosed in this action was absolutely void.

The supreme court of the United States, as far as we can ascertain, has never ruled upon this question; but in the case of Warren v.Van Brunt, 19 Wall. 646, that court, speaking of the Minnesota cases, which held such mort. gages void, said, (page 655:) “All contracts in violation of this important provision of the act are void, and are never enforced. It has been so decided many times by the supreme court of Minnesota. We are satisfied with these decisions.” 19 Wall. 646.

The appeal from the judgment also brings up the question, does the answer state facts sufficient to constitute a defense? There is no question raised except as to whether or not the facts were sufficiently and properly alleged. The complaint itself shows the interest of the defendant Warner; so it is not necessary for us to consider whether or not the answer fully stated the facts that constituted the right of ownership in Warner. The answer fully sets forth all the facts necessary to show the invalidity of the mortgage. The statement contains no exception. There is no bill of exceptions in the transcript. We cannot consider in this court any alleged error in the admission of testi. mony, which error, as far as the transcript shows, is complained of for the first time in this court.

During the argument of this cause there was considerable time devoted to the question whether or not a certain water-ditch was appurtenant to the preemption lands included in the mortgage. The mortgage is referred to in and made a part of the complaint, to which it is annexed. There is no mention in the complaint or mortgage as to any water-ditch, which is only referred to in the replication. Certainly no issue was raised in this action upon that point by an allegation in the replication. Supposing there had been a decree in favor of the plaintiff, such decree could only provide for a sale of the premises as described in the mortgage. The purchaser at the sale would have bought whatever was included within that mortgage. The decree would not have determined that the ditch was or was not appurtenant. That question could only be decided in an action at law. It cannot arise in this controversy, and we are not called upon to consider it.

The judgment of the court below, and the order denying a motion for a new trial, are affirmed, with costs.

(14 Or. 328)

SUERIDAN 0. CITY OF SALEM.

(Supreme Court of Oregon. Decenīber 21, 1886.) 1. MUNICIPAL CORPORATIONS-ACTION AGAINST for TORT PRESENTATION OF CLAIM TO

COUNCIL-NECESSITY OF.

A claim against a city for daniages for an injury sustained by reason of a defective way, or other tort, is not required to be presented for allowance to the common council, although the charter gives to that body the exclusive power to make appropriations, and provides that no claim against the city” shall be paid until

it is audited and allowed by the common council. 2. SAME-LIABILITY-DEFECT IN WAY-STATUTE OF OREGON.

Under the Oregon statute, providing that an action may be maintained against a county, incorporated town, school-district, or other public corporation, either upon a contract made by it, within the scope of its authority. or for an injury to the rights of the plaintiff arising from some act or omission" of such corporation, a city is liable for an injury caused by the neglect of its officers to keep in repair streets which it is their duty to maintain, unless some provision of the charter expressly

exempts the city from liability.' 3. SAME-REPAIR OF CrosS-WALK-EVIDENCE TO CHARGE City.

Evidence that a cross-walk on a common thoroughfare in a city was repaired by

successive road supervisors is sufficient to charge the city with its maintenance. 4. APPEAL-PRESUMPTION AFTER VERDICT-BILL OF EXCEPTIONS-MUNICIPAL CORPORA

TIONS.

In an action against a city to enforce its liability for damages sustained by reason of the non-repair of a cross-walk, the fact of the streets at whose intersection the cross-walk is located being commion thoroughfares, as bearing upon the question of the duty of the city to maintain the cross-walk, must be presumed after verdict, that fact being alleged in the complaint, although the bill of exceptions states other

facts as being the only evidence upon the question. 5. CONSTITUTIONAL LAW-REVISION OR AMENDMENT OF STATUTE-SETTING FORTH ACT AT

LENGTH-Const. Or. ART. 4, 2 22.

An act of the legislature, conferring upon a city important powers, additional to what it already has under its charter, is to be regarded as supplemental to the charter, and not as an amendment or revision of it, within Const. Or, art. 4, § 22, requiring that when an act is revised, or a section amended, the act or section so revised or amended shall be set forth at full length. Appeal from circuit court, Marion county. Geo. H. Burnett, for appellant. N. B. Knight, for respondent.

THAYER, J. This appeal is from a judgment in an action in favor of the respondent, against the appellant, for a personal injury alleged to have been sustained in consequence of a defective cross-walk across one of the appellant's streets. The respondent alleged in her complaint that the appellant was a municipal corporation, having exclusive power and authority to provide for

See city of Boulder v. Niles, (Colo.) 12 Pac. Rep. 632, and note.

the construction, cleaning, and repair of side and cross walks in said city; that it undertook to and did construct and maintain a cross-walk on the south side of Marion street, and across Winter street, therein, which streets were at the time and still are thoroughfares, used by the citizens of the city and others; but that it neglected to keep and maintain said cross-walk in good repair, and suffered it to become rotten and dangerous to persons passing along it, by reason of which the respondent, while traveling over it, on the eighth day of May, 1885, received a fall, caused by the giving away of a portion of the cross-walk, which occasioned the injury complained of. The appellant interposed a general demurrer to the complaint, which having been overruled by the court, answered over, denying the allegations of the complaint. The case was tried by jury, who returned a verdict against the appellant for $900, upon which the judgment appealed from was entered.

A number of grounds of error are assigned in the notice of appeal, the first of which is that the complaint is defective, in not alleging that the respondent's claim was presented to the common council of the city before the action was brought. This the appellant's counsel maintains should have been done, in compliance with the city charter of said city, and he refers us to two of its provisions. The first one provides that the common council has exclusive power to appropriate for any item of city expenditure, and to provide for the payment of the debts and expenses of the city; the second provides that no claim against the city shall be paid until it is audited and allowed by the common council, and then the treasurer shall pay it upon a warrant drawn upon him by the recorder. We do not think that these provisions were intended to apply to a claim of this character. They were intended as a restriction upon the treasurer in paying out the money of the city, and are doubtless within the rule laid down in Stackpole v. School-district, 9 Or. 508. All claims arising out of the ordinary expenditures of the city are required to be presented to the common council for allowance before an action can be maintained thereon. But that arises out of a relation the claimant sustains to the city, created by an employment or contract of some character. Thus, a person who performs service, or does something for the city, at its request, for which compensation is to be made, tacitly agrees that he will present his claim to the common council for audit and allowance. That is the only mode by which the city can pay him. He so understands it when he engages to perform the service, and he could not claim that there had been a refusal to pay, or that there had been any breach of the contract or obligation, until the common council had refused to audit his demand. But in cases of tort the action is for damages, and the party injured is under no more obligation to present the claim to the corporation than he would be to a private person who had done him a wrong.

The reason of the rule only applies to the former class of claims, and not to the latter,-has no application whatever to them.

Appellant's counsel lays great stress upon the comprehensiveness of the meaning of the word “claim,” but that has nothing to do with the construction of the provisions of the charter referred to. It is not in consequence of that that the claim is required to be presented to be audited. It is the reason before indicated. The breach of payment in the action of assumpsit is a necessary allegation, but it does not figure at all in an action of trespass on the

The city only agrees to pay a contracted indebtedness in case the claim is presented as mentioned, and the action is for a refusal to audit and allow it; but, if it commit a tort, the action matures at once. If the charter read that no claim should be sued upon until so presented, the rule might be different, and the meaning of the term “claim" be important; but, under the circumstances of the case, it is of no consequence whatever.

The next assignment of error is the question of the liability of a municipa) corporation for damages occasioned to passengers along its streets and side. walks in consequence of the neglect of its officers to keep them in repair. It

case,

is the same old ugly quest'o i that has wearied the patience of courts and attorneys for many years. A gr many recoveries of dam

ges have been upheld by the courts in that class of cases; but they have required the expenditure of an immense amount of brain labor to discover any principle upon which to sustain them. The appellant's counsel contends that the power delegated by the legislature contained in the city charter of the appellant, in reference to the care of streets, sidewalks, and cross-walks, is conferred exclusively upon the mayor and aldermen, comprising the common council, and that they alone should be held liable for the consequence resulting from their own carelessness. That view seems reasonable, and, if it had been adopted in the outset, would have prevented the perplexity which the devious course pursued by the courts of many of the states has occasioned. I always thought it the correct one. I have never been able to discover any justice in allowing officials charged with a specific duty, relating to an affair in which the entire community is interested, to shirk the consequences of their own inattention, if not absolute heedlessness, upon the tax-payers of a particular district. It is universally conceded that municipal corporations are organized, in the main, for governmental purposes, and that the opening, improvement, and repair of public streets in a town are purely matters of public interest, and that the use and enjoyment of them belong to the public generally. Besides, the right to maintain an action for damages in such cases is the subject of great abuse. A person receiving an injury owing to the defectiveness of a street or sidewalk is very liable to intensify it, and juries are not unfrequently imposed upon shamefully in the matter. And, again, juries are not inclined to make that discrimination, when a public corporation is defendant, and an injured party, surrounded by circumstances usually calculated to excite sympathy, is plaintiff, they would if the responsibility were upon an individual. The policy always seemed to me to be a pernicious one, and entirely destitute of principle to stand upon. The Massachusetts decisions, and those of other states in the same line, indicate the only correct view upon the subject in my opinion. They recognize no common-law liability, as such, nor any liability at all, unless given expressly by statute. That seems to be the only rational solution of the question.

It has been determined by this court that the statute of the state, imposing liability upon public corporations, extends to such cases as the one under consideration. BícCalla v. County of Multnomah, 3 Or. 424. That statute provides that an action may be maintained against a county, incorporated town, school-district, or other public corporation of like character in this state, either upon a contract made by such county or other public corporation in its public character, and within the scope of its authority, or for an injury to the rights of the plaintiff arising from some act or omission of such county or other public corporation. If this were an original question, I should very likely be of the opinion that “the act or omission” from which the injury arose, referred to in the statute, related to some act or omission of a strictly corporate character, and did not include the act or omissions of the officers of the county or public corporation in the discharge of duties they owed to the public, such as keeping public roads and streets in good repair; but the principle of that case has been followed in this state for more than 17 years, and I do not see any consistent way of getting rid of it without the aid of legislation. Many of the larger towns of the state have avoided its effects by provisions in their charters exempting the town from liability in such case, and imposing it upon the officers thereof, where they have been guilty of negligence that occasioned the injury; but without some such course, or a moditication of the statute before referred to, the tax-payers of public corporations will have to continue to be insurers against the negligence of their officers.

The appellant's counsel seemed to think that the charter in this case was different in regard to vesting the power in the common council, instead of

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