Mr. Justice Brewer,
after making the foregoing statement, delivered the opinion of the court.
The case turns upon the construction of the contract and its alleged conflict with section 2262, Rev. Stat., the pertinent part of which is'
“Before any person claiming the benefit of this chapter is allowed to enter lands, he shall make oath before the receiver or register of the land district in which the land is situated. . . . 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 [344]*344he might acquire from the Government of the United States should inure in whole or in part to the benefit of any person except himself.”
The defendants in error insist that the title was to be in no • manner affected by the contract; that it was simply a promise on the part of the preémptor to pay a certain sum of money, the amount thereof to be determined by the proceeds of a.sale which he might subsequently make; that he was under no obligations to make any sale, and if he did not they would have no claim upon him. On the other hand, the plaintiff in error invokes the doctrine laid down in Anderson v. Carkins, 135 U. S. 483, that by the terms of the contract the title which he ■ acquired from the Government was in part to inure, indirectly at least, to the other parties to the contract. He insists that the purpose of Congress was to secure to the preémptor the full benefit of the property patented to him; that this purpose is emphasized by the use of the words “directly or indirectly,” and that any contract by which third parties were to acquire a portion of the property or a share in the proceeds of any sale of the property was really a contract which operated indirectly to transfer the title in part to such third party. Under such construction a contract by which the preémptor should agree to mortgage the land after acquiring title would be void, because on failure to pay and by foreclosure of the mortgage the mortgagee might acquire title.
The question is not free from- doubt. The contract did not directly affect the title; that was to be absolutely vested in the patentee, undisturbed by any claim of the defendants in error. He was not bound to do anything by which any portion of the title should pass to them, directly or indirectly. On the other hand, its effect was to cast a limitation on the full benefit of the property, for while the patentee was under no obligation to sell, he was required to divide the proceeds if and when he made a sale.
It may be well to examine the decisions of the courts, Federal as well as State, and also the rulings of the Land Department. [345]*345Before doing so, however, we quote- the corresponding- provisions of the Federal statutes respecting homesteads. .Secs. 2290 2291 and 2296, Rev. Stat. In his application for a homestead entry the applicant must make-affidavit that his “application is made for his exclusive use and benefit, and that his entry is made for the purpose of actual' settlement and cultivation, and not either directly or indirectly for the use or benefit of any other person.” And before a certificate or patent is issued he must make affidavit “that no part of such land has been alienated, except as provided in section 2288.” That section refers to the transfer for church, cemetery or school purposes, or for the right of way of railroads. The land shall not “in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor.”
Under these provisions it has been held that a contract to convey the. whole or part of the land made prior to the perfection of his equitable right by one seeking preemption or a homestead is void, and will not be enforced in the courts, Anderson v. Carkins, supra; and, if known to the Department, will prevent the passing of the legal title. Such has been the uniform ruling of the Land Department, as well as of the courts, state and Federal.
With respect to a mortgage or deed of trust executed under like circumstances, the decisions of the Land Department have been all to the effect that such mortgage or deed of trust is not an alienation within the scope of the homestead statute or forbidden by the preemption law, especially where, in the case of a preemption, the mortgage is given to secure money borrowed to complete the purchase of the land. See, in reference to preemptors, Larson v. Weisbecker, 1 L. D. 422, Opinion of Secretary Teller; In re William H. Ray, 6 L. D. 340, Opinion of Acting Secretary Muldrow; Haling v. Eddy, 9 L. D. 337, Opinion of Secretary Noble; Murdock v. Ferguson, 13 L. D. 198, Opinion of Assistant Secretary Chandler. With reference to a homestead entryman, see Mudgett v. Dubuque & Sioux City R. R. Co., 8 L. D. 243, Opinion of Secretary Vilas; Dawson v. [346]*346Higgins, 22 L. D. 544, Opinion of Secretary Smith; Kezar v. Horde, 27 L. D. 148, Opinion of Secretary Bliss. In addition, see Lawson v. Reynolds, 28 L. D. 155, in which Secretary Hitchcock held that a “written agreement executed',by a homesteader and operating as a mere lease' of part of the premises and the grant of an easement, the use of which would tend to improve and increase the value of the land as a homestead, is not an alienation of any part of such land, and no bar to the perfection of the entry.” See also Kingston v. Eckman, 22 L. D. 234, in respect to an entry under the timber and stone act of June 3, 1878, 20 Stat. 89, as amended by the act of August 4, 1892, 27 Stat. 348, the provisions of which statute in reference ‘to the oath of the applicant are similar to those in the preemption act.
There has been some division in the courts upon the question. In Brewster v. Madden, 15 Kansas, 249, the Supreme Court of that State, in an opinion delivered by the writer of this, held that a mortgage given by a preémptor prior to the entry of the lands was void, reaching this conclusion largely on the proposition that at the time the- preemption act was passed (1841) mortgages always in form conveyances were then regarded by the profession generally as conditional alienations. To like effect were the early rulings of the Supreme Court of Minnesota, Mc Cue v. Smith, 9 Minnesota, 252; Woodbury v. Dorman, 15 Minnesota, 338, though' these rulings were subsequently distinctly overruled by the same court. Jones v. Tainter, 15 Minnesota, 512; Lang v. Morey, 40 Minnesota, 396. Bass v. Buker, 6 Montana, 442, deciding the same way, was also overruled in Norris v. Heald, 12 Montana, 282. The large majority of state decisions follow these later rulings. See, in case of preemptions, Wilcox v. John, 21 Colorado, 367; Christy v. Dana, 34 California; 548; Christy v. Dana, 42 California, 174; Camp v. Grider, 62 California, 20; and in reference to homesteads, Fuller v. Hunt, 48 Iowa, 163; Dickerson v. Bridges, 147 Missouri, 235; Weber v. Laidler, 26 Washington, 144; Spiess v. Neuberg,
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Mr. Justice Brewer,
after making the foregoing statement, delivered the opinion of the court.
The case turns upon the construction of the contract and its alleged conflict with section 2262, Rev. Stat., the pertinent part of which is'
“Before any person claiming the benefit of this chapter is allowed to enter lands, he shall make oath before the receiver or register of the land district in which the land is situated. . . . 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 [344]*344he might acquire from the Government of the United States should inure in whole or in part to the benefit of any person except himself.”
The defendants in error insist that the title was to be in no • manner affected by the contract; that it was simply a promise on the part of the preémptor to pay a certain sum of money, the amount thereof to be determined by the proceeds of a.sale which he might subsequently make; that he was under no obligations to make any sale, and if he did not they would have no claim upon him. On the other hand, the plaintiff in error invokes the doctrine laid down in Anderson v. Carkins, 135 U. S. 483, that by the terms of the contract the title which he ■ acquired from the Government was in part to inure, indirectly at least, to the other parties to the contract. He insists that the purpose of Congress was to secure to the preémptor the full benefit of the property patented to him; that this purpose is emphasized by the use of the words “directly or indirectly,” and that any contract by which third parties were to acquire a portion of the property or a share in the proceeds of any sale of the property was really a contract which operated indirectly to transfer the title in part to such third party. Under such construction a contract by which the preémptor should agree to mortgage the land after acquiring title would be void, because on failure to pay and by foreclosure of the mortgage the mortgagee might acquire title.
The question is not free from- doubt. The contract did not directly affect the title; that was to be absolutely vested in the patentee, undisturbed by any claim of the defendants in error. He was not bound to do anything by which any portion of the title should pass to them, directly or indirectly. On the other hand, its effect was to cast a limitation on the full benefit of the property, for while the patentee was under no obligation to sell, he was required to divide the proceeds if and when he made a sale.
It may be well to examine the decisions of the courts, Federal as well as State, and also the rulings of the Land Department. [345]*345Before doing so, however, we quote- the corresponding- provisions of the Federal statutes respecting homesteads. .Secs. 2290 2291 and 2296, Rev. Stat. In his application for a homestead entry the applicant must make-affidavit that his “application is made for his exclusive use and benefit, and that his entry is made for the purpose of actual' settlement and cultivation, and not either directly or indirectly for the use or benefit of any other person.” And before a certificate or patent is issued he must make affidavit “that no part of such land has been alienated, except as provided in section 2288.” That section refers to the transfer for church, cemetery or school purposes, or for the right of way of railroads. The land shall not “in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor.”
Under these provisions it has been held that a contract to convey the. whole or part of the land made prior to the perfection of his equitable right by one seeking preemption or a homestead is void, and will not be enforced in the courts, Anderson v. Carkins, supra; and, if known to the Department, will prevent the passing of the legal title. Such has been the uniform ruling of the Land Department, as well as of the courts, state and Federal.
With respect to a mortgage or deed of trust executed under like circumstances, the decisions of the Land Department have been all to the effect that such mortgage or deed of trust is not an alienation within the scope of the homestead statute or forbidden by the preemption law, especially where, in the case of a preemption, the mortgage is given to secure money borrowed to complete the purchase of the land. See, in reference to preemptors, Larson v. Weisbecker, 1 L. D. 422, Opinion of Secretary Teller; In re William H. Ray, 6 L. D. 340, Opinion of Acting Secretary Muldrow; Haling v. Eddy, 9 L. D. 337, Opinion of Secretary Noble; Murdock v. Ferguson, 13 L. D. 198, Opinion of Assistant Secretary Chandler. With reference to a homestead entryman, see Mudgett v. Dubuque & Sioux City R. R. Co., 8 L. D. 243, Opinion of Secretary Vilas; Dawson v. [346]*346Higgins, 22 L. D. 544, Opinion of Secretary Smith; Kezar v. Horde, 27 L. D. 148, Opinion of Secretary Bliss. In addition, see Lawson v. Reynolds, 28 L. D. 155, in which Secretary Hitchcock held that a “written agreement executed',by a homesteader and operating as a mere lease' of part of the premises and the grant of an easement, the use of which would tend to improve and increase the value of the land as a homestead, is not an alienation of any part of such land, and no bar to the perfection of the entry.” See also Kingston v. Eckman, 22 L. D. 234, in respect to an entry under the timber and stone act of June 3, 1878, 20 Stat. 89, as amended by the act of August 4, 1892, 27 Stat. 348, the provisions of which statute in reference ‘to the oath of the applicant are similar to those in the preemption act.
There has been some division in the courts upon the question. In Brewster v. Madden, 15 Kansas, 249, the Supreme Court of that State, in an opinion delivered by the writer of this, held that a mortgage given by a preémptor prior to the entry of the lands was void, reaching this conclusion largely on the proposition that at the time the- preemption act was passed (1841) mortgages always in form conveyances were then regarded by the profession generally as conditional alienations. To like effect were the early rulings of the Supreme Court of Minnesota, Mc Cue v. Smith, 9 Minnesota, 252; Woodbury v. Dorman, 15 Minnesota, 338, though' these rulings were subsequently distinctly overruled by the same court. Jones v. Tainter, 15 Minnesota, 512; Lang v. Morey, 40 Minnesota, 396. Bass v. Buker, 6 Montana, 442, deciding the same way, was also overruled in Norris v. Heald, 12 Montana, 282. The large majority of state decisions follow these later rulings. See, in case of preemptions, Wilcox v. John, 21 Colorado, 367; Christy v. Dana, 34 California; 548; Christy v. Dana, 42 California, 174; Camp v. Grider, 62 California, 20; and in reference to homesteads, Fuller v. Hunt, 48 Iowa, 163; Dickerson v. Bridges, 147 Missouri, 235; Weber v. Laidler, 26 Washington, 144; Spiess v. Neuberg, 71 Wisconsin, 279; Kirkaldie v. Larra[347]*347bee, 31 California, 456; Orr v. Stewart, 67 California, 275; Stark v. Duvall, 7 Oklahoma, 213. In Orrell v. Bay Manufacturing Company, 83 Mississippi, 800, the court held that the prohibition of the alienation of public land by parties who have taken the preliminary steps to acquire the same under the homestead laws, and who have not perfected'their entries, has reference to an absolute sale of the land, or some part of it, and in that case the leasing of trees on the land for turpentine purposes and the sale of trees was held not an alienation within the meaning of the statute.
' Obviously, the trend of the authorities is strongly in favor of the proposition that a mortgage or deed of trust by one seeking an entry under' the preemption ■ or homestead laws of the United States, made prior to the perfection of his equitable right,, is' valid. These authorities would fully sustain the decision of the Supreme Court of Minnesota in the present case.
Further, in the. case at bar, there was no mortgage, deed of trust or agreement for a specific lien of any kind. It was simply a promise to pay money in case of a sale by the patentee, the amount of the payment to be determined by the sum received on the sale. It was a promise which in no event could be enforced against the land. It was only a personal obligation of the patentee. It might never be enforced against him, and could not be except upon his sale- of the land. Of course, it would not be contended that a mere promise to pay money by one seeking to acquire title under a homestead was not binding, and if the only effect of the contract is to measure .the sum which the patentee agrees to pay by that which he may receive when he sells the land, it cannot be held that a contract has been made for an alienation of the title in whole or in part, or that the land was not acquired for the sole use and benefit of- the patentee.
The judgment of the Supreme Court of Minnesota was right, and it is
Affirmed.