the balance of the unexpired term of this office, which commenced June 1, 1891, and which would expire June 1, 1893; that Hardy's appointment in June, 1887, gave him the right to hold until the next general election in August, 1887, and that his election in August, 1887, gave him the right to hold until June, 1889, when the office became vacant; but, there being no election in 1888, Hardy would hold over until June, 1891, and that Williams' election in August, 1891, gave him the right to the office for the unexpired term ending June, 1893. Respondent, Hardy, contends that his appointment by the county court, in 1887, confers upon him a right to hold the office until his successor is duly elected and qualified; and that, under the statute, the election held in August, 1891, is void, and that Williams has no title to office under such election; that there was no vacancy in the office in June, 1891, such as, under the statute, could be filled by an election in August, 1891; that no election having been held in August, 1890, nor appointment made, the incumbent holds over until June, 1893. By section 2018, (1 Comp. Laws, 1888, p. 722,) it is provided that, at the general election in 1878, and biennially thereafter, there shall be elected, by the qualified voters of this territory, a collector for each county, whose term of office shall be for two years, and until his successor shall be duly elected or appointed, and qualified; each collector to enter upon the duties of his office on the 1st day of June following his election, after having qualified. Section 2020 (Id. p. 723) provides that in case of the office of collector becoming vacant the county court of the county where such vacancy occurs shall have power to fill such vacancy, by appointment, until the next general election. Section 238 (Id. p. 318) provides that annually, upon the 1st Monday in August, there shall be a general election held in each precinct in the several counties for choosing all officers not otherwise provided for. Section 187, subd. 25 (Id. p. 303) gives county courts power to fill by appointment all vacancies that may occur in any office filled by appointment of the county court, and elective county district or precinct offices.

Under the agreed facts, the question arises, was the election of Williams, in August, 1891, and the election of Hardy, in August, 1887 and 1889, authorized by law? Was there any vacancy in this office in June, 1891, that could be filled except by an election held in August, 1890, or by appointment of the county court? Section 2018 creates the office of collector, and provides that such collector shall be elected at the general election in 1878, and biennially thereafter; that his term of office shall be for two years, and until his successor shall be duly elected or appointed and qualified; and that he should enter upon the duties of his office on the 1st day of June next following his election. The time of the election for the office created by the act is fixed by the same section at the general election to be held in August on each even numbered year following 1878. The term commences the 1st of June following the election, or in an odd numbered year. Under this section the incum

bent holds until his successor is duly elected or appointed and qualified. Jones was elected under this statute in August, 1884, and again in August, 1886, but resigned both terms of office in November, 1886, to the county court; and Hardy was duly appointed to fill the long and the short term, under section 2020. This section gives the county court power to fill the vacancy caused by the resignation of Jones, by appointment, until the next general election; and section 187 gives the county court power to fill vacancies that may occur in any office filled by appointment; so that the term for which Hardy was appointed would not expire until June 1. 1889, unless the general election, referred to in section 238, above quoted, was the general election meant by section 2018, at which an election for this office could be held. It will be noticed that this section 238 has reference to an election for choosing an officer not otherwise provided for. It will also be seen that section 2018 does provide for the election of collectors, so that section 238 cannot have reference to the election of collectors, but has reference to the election of officers not otherwise provided for. In State v. Collins, 2 Nev. (859,) 351, it is held "that an election cannot be held for an office at a time not fixed for such an election;" and, under- a statute providing that a “county superintendent of schools shall be elected in each county at the general election in the year 1886, and every two years thereafter, who shall take office on the first Monday in January next succeeding his election, and hold until his successor is elected and qualified," and providing that "any vacancy may be filled until the next general election," the court says that the "next general election" referred to means the next general election occurring on alternate years commencing with 1864, and not the election held in intermediate years. See Sawyer v. Haydon, 1 Nev. (64,) 75; Kenfield v. Irwin, 52 Cal. 164; Paine, Elect. §§ 284,310; McCrary, Elect. § 109; Cooley, Const. Lim. 602; People v. Church, 6 Cal. 76.

The county court having the power to appoint and having appointed Hardy to fill the vacancy then existing, the appointment would necessarily continue for the full term to June 1, 1889, and would not be affected by the election of Hardy in 1887, at a time when such election is not provided for by law. The time for the election occurs, under the statute, every two years, but no election was held in August, 1888, or 1890; consequently Hardy's term continued, under the statute, until his successor was elected or appointed and qualified. The right to hold over until the successor is legally elected and qualified is as much a part of his term of office as the regular period prescribed by statute, so that the length of his term depends upon the election of his successor. There can be no actual vacancy as long as the rightful occupant continues to hold office,-that is, until death, resignation, removal, or some legal disability occurs. This provision is a proper one, and is so provided in order that vacancies in office may not occur from a failure of the people to elect at the regular general election fixed by the stat

ute for that purpose. The result necessarily follows that a failure to elect at a period fixed by the statute creates no vacancy in the office, but imposes a right and a duty upon the incumbent to continue in office until his successor is legally elected and qualified; and this right falls upon the incumbent the same whether appointed or elected. In other words, a person appointed to fill a vacancy in the office of collector can only be superseded by one who is duly elected; the person so appointed continuing to hold office in the same manner as if he were originally the incumbent; and his term of office will not expire until he is suspended by death, resignation, removal, or some other legal disability occurs, or until his successor is duly elected and qualified. Hardy's term of office did not expire in June, 1891, unless some one duly elected and qualified was then and there ready to take the office. It is not claimed that Mr. Williams was elected until August, 1891, and, as we have seen, at a time when no election for this office could legally be had under the statute. The statute provides that a vacancy shall be filled by appointment until the next general election. At the next general election in 1888, and in 1890, the office should have been filled for the full term of two years; but no election was held, and there was no vacancy that could be filled by appointment, because the appointee was still there holding the office, and no one had been elected to take it. Paine on Election, § 227, says "that if there was a vacancy in any just sense, after the expiration of the term, and before the election and qualification of a successor, the statute itself fills the vacancy by providing that the incumbent shall hold until the election and qualification of a successor, and that a failure to elect a successor to an office at the expiration of his term does not create a vacancy to be filled by appointment. The incumbent holds over for an indefinite period if no successor be elected and qualified." There was no vacancy in the office to be filled at the time it is claimed the relator was elect ed, in 1891, and there was no authority to hold an election at that time for this office. The law had filled it with an incumbent who took and held it from June 1, 1891, because there was no other legal claimant. The incumbent had entered upon a legal term of two years, from June 1, 1891, and will hold until his successor is elected at the general election in August, 1892, unless a legai vacancy shall sooner occur. There are many decisions that bear upon this question, but they depend largely upon the statutes of the several states where the decisions are rendered. As sustaining the principle herein expressed we cite Paine, Elect. §§ 225-228; Mechem, Pub. Off. §§ 128, 129, 141, 142, 170; State v. Howe, 25 Ohio St. 588, 595; State v. Lusk, 18 Mo. 333; Brewer v. Davis, 49 Amer. Dec. 706; People v. Lord, 9 Mich. 221: State v. Harrison, (Ind. Sup.) 16 N. E. Rep. 384. The judgment and order of the third district court are affirmed, with costs.

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ANDERSON and BLACKBUBN, JJ., concur.

HOSKINS V. MCGIRL.

(12 Mont. 246)

(Supreme Court of Montana. May 16, 1892.) FICTITIOUS APPEAL-DISMISSAL.

On appeal from a judgment dismissing the action without prejudice, where it is admitted by counsel that, after the dismissal, another suit was commenced and is pending on the same cause of action, and it appears that the issues between the parties cannot be determined on the appeal, the appeal will be dismissed.

Appeal from district court, Yellowstone County; CHARLES R. MIDDLETON, Judge pro tem.

Action by Omar Hoskins against Thomas McGirl. The action was dismissed without prejudice. Defendant appeals. Appeal dismissed.

0. F. Goddard, for appellant. E. P. Cadwell, for respondent.

DE WITT, J. This action was for the foreclosure of a mortgage given to secure an obligation upon a written instrument, which the parties called a promissory note. The answer sets up several defenses. The pleadings seem to indicate that “a complete determination of the controversy cannot be had without the presence of the other parties." Section 26, Code Civil Proc. That this was also in the mind of the court seems to be indicated in the findings. But the court did not order such other parties to be brought in. Section 26, Code Civil Proc. After making several findings and conclusions, the court concludes that the action should be dismissed without prejudice. The defendant appeals. Upon the argument the counsel informed this court that after the dismissal of this case in the district court auother suit was commenced upon the same cause of action, and is now pending. The effect of dismissal without prejudice is that such a judgment of dismissal is not a bar to another action. Black, Judgm. § 721, and cases cited. The issues in this action so dismissed, were somewhat complicated, and the dismissal without prejudice leaves them wholly undetermined. This appeal presents conditions somewhat anomalous. There is in fact nothing to be determined by a decision in this court. If the judgment of the district court be affirmed, it is simply affirming the dismissal therein without prejudice, and the parties may go on with the other action, which they inform us was commenced on this dismissal, and is now pending, and in such action the merits can be determined. The action having been dismissed without prejudice, this can result in no bar to adjudie ting in the action now pending the alleged rights found by the jury in the case dismissed. If, on the other hand, judgment should be entered on the verdict of the jury, which the district court set aside, this would still leave other issues in the action wholly undetermined; issues upon which this court is in no position, with this record, to make any order whatever. Therefore in this action it is apparent that this appeal must be so determined as to leave the parties in an attitude to present all the issues involved in the case which is now pending. We decline to entertain the appeal. State v. Napton, 10 Mont. 369, 25 Pac. Rep. 1045.

Let the case be remanded to the district court with the foregoing expression of our views.

BLAKE, C. J., and HARWOOD, J., concur.

(12 Mont. 282)

NORRIS V. HEALD et al. (Supreme Court of Montana. May 23, 1892.) MORTGAGES BY PRE-EMPTOR-VALIDITY.

1. A mortgage in good faith by a pre-emptor of land prior to the time of making his final proof is not a grant or conveyance within the prohibitory clause of Rev. St. U. S. § 2262, which provides that "any grant, except in the hands of bona fide purchasers, for a valuable consideration, shall be null and void, except as provided in section 2288." Bass v. Buker, 12 Pac. Rep. 922, 6 Mont. 442, disapproved. Myers v. Croft, 13 Wall. 291, and Quinby v. Conlan, 104 U. S. 420, distinguished.

2. The purpose for which a sum of money is so borrowed is material to show bona fides of the mortgagor.

Appeal from district court, Madison County; THOMAS J. GALBRAITH, Judge.

Action by Alexander Norris against James D. Heald and others, to foreclose three mortgages given to secure payment of promissory notes. Judgment for defendants, on plaintiff's demurrer to answer. Plaintiff appeals. Reversed.

Luce & Luce, for appellant.

BLAKE, C. J. This action was commenced to foreclose three mortgages which were given to secure the payment of certain promissory notes. The court below, in passing upon a demurrer to the answer, decided that the case of Bass v. Buker, 6 Mont. 442, 12 Pac. Rep. 922, was applicable to the issue of law raised by the pleadings, and judgment was entered for the mortgagors. It appears from the record that Charles P. Bradley, Sr., made, in the year 1877, a pre-emption filing upon the tract of land which is described in the pleadings and mortgages. Bradley died in the year 1879, and the answer alleges that "the final proof in said described premises was made by said Jennette C. Kelleher, as administrator for the estate of Chas. P. Bradley, deceased, for the heirs of said Chas. P. Bradley, Sr., deceased, and not otherwise, and patent duly issued to them on the 30th day of January, 1885; and that the said defendant Jennette C. Kelleher made and executed the said mortgage mentioned in said first cause of action prior to the issuing of the final receipt for said pre-emp. tion claim." These allegations of facts must be treated as admitted upon this hearing. The first mortgage was executed November 23, 1880, by Jennette C. Bradley, the widow of Charles P. Bradley, Sr.; the second mortgage was executed Febru ary 21, 1881, by Jennette C. Bradley and Darwin J. Bradley a son of Charles P. Bradley, Sr.; and the third mortgage was executed February 26, 1881, by Jennette C. Bradley. At some time, which is not mentioned in the pleadings, Jennette C. Bradley married John C. Kelleher. An examination of the transcript in Bass v. Buker, supra, which is filed with the records of this court, and the report of the case, shows that Buker filed, March 5, 1874, his v.29p.no.15-71

declaratory statement of a pre-emption claim to certain lands; that he executed, September 16, 1881, a mortgage thereon to Bass; that he sold, January 17, 1883, his interest in the premises to Fruen, and delivered the possession thereof; and that Fruen disposed of the same, August 7, 1883, to Warner, who filed thereon as a pre-emptor, and obtained, February 18, 1884, his final receipt from the United States. Bass, in September, 1884, brought an action to foreclose the mortgage against Warner and Buker. It will be observed that Buker did not perform any act to secure his title from the government after the filing of his claim in March, 1874, and that he abandoned the same in the year 1883, and that the rights of Warner were derived from the United States, and were not connected in any manner with Buker. It was adjudged in Bass v. Buker, supra, that the mortgage could not be enforced, by reason of the provisions of section 2262 of the Revised Statutes of the United States. Two sentences of this section should be examined. The pre-emptor is required to make oath, among other things, that "he has not settled upon and improved such and 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 twenty-two hundred and eightyeight." It is evident that Buker did not have any interest in this land, in the year 1884, which could be incumbered by the mortgage, and the conclusion of the court is undoubtedly sound. The court did not discuss these propositions; and the opinion is confined solely to the effect of the section, supra, upon the mortgage. The rule is asserted therein, without any qualification, that a mortgage made by a settler upon land which is subject to entry under the pre-emption laws, before the issuance of the final receipt, is a grant or conveyance within the terms of the section, supra, and is therefore null and void. have reconsidered Bass v. Buker, supra, and cannot yield our assent to this princi. ple, which is upheld in the opinion. are aware of the conflict in the authorities upon the construction of this section, and will present the different views. The supreme court of the United States has commented upon and explained the object of this legislation. In Myers v. Croft, 13 Wall. 291, Mr. Justice DAVIS, for the court, said: "It had been the well defined policy of congress, in passing these laws, not to allow their benefit to inure to the profit of land speculators, but this wise policy was often defeated. Experience had proved that designing persons, being unable to purchase valuable lands, on account of their withdrawal from sale, would procure middle

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use.

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men to occupy them temporarily, with indifferent improvements, under an agreement to convey them so soon as they were entered by virtue of their pre-emption rights. When this was done, and the speculation accomplished, the lands were abandoned. This was felt to be a serious evil, and congress, in the law under consideration, undertook to remedy it by requiring of the applicant for a pre-emption, before he was allowed to enter the land on which he had settled, to swear that he had not contracted it away, nor settled upon it to sell it on speculation, but, in good faith, to appropriate it to his own *The object of congress was attained when the pre-emptor went, with clean hands, to the land office, and proved up his right, and paid the government for his land. In Quinby v. Conlan, 104 U. S. 420, Mr. Justice FIELD refers to Myers v. Croft, supra, and says: "The act of congress forbids the sale of pre-emptive rights to the public lands acquired by settlement and improvement. The general pre-emption law declares that all transfers and assignments of rights thus obtained prior to the issuing of the patent shall be null and void. This court held, looking at the purpose of the prohibition, that it did not forbid the sale of the land after the entry was effected, that is, after the right to a patent had become vested, -but did apply to all prior transfers. The policy of preventing speculation through the instrumentality of temporary settlers would otherwise be defeated.'

It is not alleged in the answer that the mortgages were executed for the purpose of aiding speculators, or to cause the title which might be acquired from the United States to be assigned or transferred, or inure to the benefit of any person except the mortgagos. The language of the opinions in Myers v. Croft, supra, and Quinby v. Conlan, supra, does not contemplate a mortgage, or an instrument of like character. This question was not investigated in these cases, and has not been directly determined by the supreme court of the United States. The decisions of the department of the interior and the general land office, relating to this matter, have been uniform during the past 10 years. Mr. Teller, the secretary of the interior, rendered, April 24, 1882, in Larson v. Weisbecker, 1 Dec. Dep. Int. 422, a decision, and construed the section supra. It is therein said: "I am aware that the former rulings of your office and of this department, following the precedent of an early decision, have held that an outstanding mortgage given by a pre-emptor upon the lands embraced in his filing defeats his right of entry, upon the ground that such mortgage is a contract or agreement by which title to the lands might inure to some other person than himself. A careful consideration of this section leads me to a different conclusion, and to the opinion that, unless it shall appear under the rules of law applicable to the construction of contracts, or otherwise, that the title shall inure to another person, it does not debar the right of entry; and that the mere possibility that the title may so result, as in the case of an or

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dinary mortgage, is not sufficient to forfeit the claim. The statute under consideration requires from a pre-emptor, in my opinion, in order to the defeat of his right of entry, a contract by force of which title to the land must vest in some other person than himself; and it must appear that such was his intention at the time of making it. If, on the contrary, the mortgage was a mere security for money loaned, and the contract does not necessarily divert the title from him, it was not a contract or agreement within the meaning of section 2262." This ruling was followed, October 11, 1887, in Appeal of Ray, 6 Dec. Dep. Int. 340, wherein it is said: "There is no law or ruling of this department now in force that prohibits a pre-emptor who has complied with the requirements of the pre-emption law, in good faith, from mortgaging his claim to procure money to prove up and pay for his land." To the same effect is Haling v. Eddy, 9 Dec. Dep. Int. 337, which was decided September 7, 1889. The reasons for this ruling of the department concerning the public lands are that the pre-emptor made a conditional alienation, when he might have executed an absolute conveyance, if his purpose had been different; and that by the payment of the loan the title could not inure to the benefit of the mortgagee. In the case at bar the patent had been issued to the mortgagors, as the heirs of Charles P. Bradley, Sr., and the title to the land cannot, within the meaning of the section supra, inure to the benefit of any other persons. We have confined our inquiries to the interpretation of the section supra, and will add that this principle has been applied to similar clauses in the statute relating to homestead entries. It is of vital consequence that the courts of the state should be in accord with the general government in the enforcement of the laws which regu-. late the rights of settlers upon the public domain, and the mode of procuring the title thereto. In many instances the preemptor would be unable to borrow money if he could not give a valid mortgage upon his land as security for its payment.

While the decisions of the department of the interior are not binding upon this court, they are to be treated with great respect, and the logic of Mr. Teller, in Larson v. Weisbecker, supra, is forcible and convincing. The other authorities should be reviewed. The case of Bull v. Shaw, 48 Cal. 455, supports the judgment of the court in Bass v. Buker, supra, and the facts are substantially the same. Shaw was residing upon public land, and executed, in 1867, a mortgage thereon to Williams. In 1868, Shaw sold the same to Delaney, who filed, in 1869, his declaratory statement as a pre-emptioner, and in October, 1870, this action was commenced to foreclose the mortgage. Delaney died in November, 1870, and the administrator of his estate, for the heirs, "proved up, entered, and paid for the land." It is stated in the report that" the Delaneys were made defendants, as purchasers from Shaw, after the execution of the mortgage. The attorneys for the appellant claimed that Delaney bought sub