Opinion of the court by

The question to consider is whether the intervening petition made out a case upon which the plaintiffs in error are entitled to recover, and whether at the time of the institution of their suit they were entitled to this remedy. Upon the latter proposition there can be no doubt, since it is well established that when one of the parties, before the time of the performance arrives under a contract, makes it impossible that he shall perform his promise, the other party may treat the contract as broken, and bring an action immediately. (Lawson, Cont. sec. 441; Wolf v. Marsh, 54 Cal. 228; Hawley v. *217 Keeler, 53 N. Y. 114; Grice v. Noble, 59 Mich, 515, 26 N. W. 688.)

It is provided by section 2291 of the Revised Statutes of the United States that no certificate should be given or patent issued before the expiration of five years from the date of entry; that before final receipt an affidavit must be filed by the entryman, averring that “no part of such land had been alienated.” And the question arises whether the indenture of Stark Bros, was such an alienation as is prohibited by the statute. “Alienation” is the voluntary and complete transfer from one person to another, and, if it be concerning the transfer of property, it involves the complete and absolute exclusion, out of him who alienates, of any remaining interest, or particle of interest, in the thing transmitted. It involves the complete transfer of the property and possession of land, tenements, or other things to another. (2 Bl. Comm. 287; Boyd v. Cudderback, 31 Ill. 119.)

And, while other views were formerly held by some of the courts, the doctrine was announced in Mudgett v. Railroad Co., by Secretary Vilas, (8 Land Dec. Dept. Int. 243-248,) that the “alienation prohibited by the statute is an absolute alienation of the land, or a part thereof, whereas the mortgage given by Mudgett was simply a pledge for the security of a debt, to be avoided on payment of the debt,” and that “there- is no good reason why a homestead entryman, whose good faith is otherwise apparent, may not mortgage his claim, before final certificate, to procure money with which to improve his land, or for any other purpose not intended to impeach his bona fides.” This case affirmed the holding of Secretary Teller in Larson v. Weisbecker, Land Dec. Dept. Int. 422, in which it was held that the “mortgage was a mere *218 security for the money loaned, and the contract does not necessarily divert property from him, and was not a contract or agreement, within the meaning of the statute.’' The doctrine thus laid down in the land department was adopted and avowed by the supreme court of Colorado in Wilcox v. John, 40 Pac. 880, in which it was held that by the later, and, as it was thought, better-considered, cases, neither .a mortgage nor_ a deed of trust is a grant or conveyance within the prohibitory clause of the statute.

And it was held in Stewart v. Powers, (Cal.) 33 Pac. 489, in a like case that “the mortgagor will be estopped from defeating by his own act the operation and enforcement of the lien appellants have attempted to create.” And in Orr v. Stewart, 67 Cal. 275, 7 Pac. 693, which involved a mortgage of land under the homestead law, it was held that a mortgagor was estopped from defeating by his own act the enforcement of a lien he had attempted to create, and that the mortgage was not made void or voidable under the provisions of the homestead act. The same doctrine is fully affirmed in Spiess v. Neuberg, 71 Wis. 279, 397 N. W. 417, and in Lang v. Morey, (Minn.) 42 N. W. 88, in which it was stated in the syllabus that “a person making entry under the homestead laws of the United States may execute a valid mortgage upon land so entered prior to submitting final proof and receiving the final certificate.” It was so held in Fuller v. Hunt, 48 Iowa, 163. It is also provided in section 2296 of the Revised Statutes of the United States, (upon homesteads) that “no lands acquired under the provisions of this chapter shall in any event become liable to the satisfaction of ány debt contracted prior to the issuing of the patent therefor.” This section does not prohibit the borrowing *219 of money at the option of the homesteader. It prohibits the land being taken from him for the satisfaction of past indebtedness. It is intended as a protection to the homesteader, and not as a limitation upon his control over the land, in disposing of or borrowing money upon it.

It was said by the supreme court of Kansas in Watson v. Voorhees, 14 Kan. 329, by Judge Brewer, that: “The limitations were on the creditor, and not upon the debt- or. That his deed passed a good title, and he could not thereafter avoid that deed by showing that the only consideration therefor was past indebtedness. If he could convey absolutely, so he could conditionally. He could use the land as security. He was in no- wise limited or restricted in his power to dispose of the property.” And that: “Having once appropriated it for that purpose, they may not thereafter deny such appropriation.” The supreme court of Iowa have had this question before them, and have reached the same result. (Nycum v. McAllister, 33 Iowa, 374.)

We hold that the indenture executed by Frieze to the plaintiffs in error was not invalid as a violation of the provisions of the homestead act against either alienation, or the provision that the lands should not become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor, and that, as it was properly executed and recorded it constituted a lien upon the land, so far as Frieze and his wife were concerned. The averments of the intervening petition of the plaintiffs in error charged knowledge of the existence and consideration of the indenture upon Rachel Wright and her husband, and upon Duvall, and charged them with knowingly and fraudulently executing the warranty deed to Rachel Wright and the assignment of the mortgage from *220 Frieze to Duvall, and that the transactions between Frieze, the Wrights, and Duvall were knowingly and willfully fraudulent upon the part'of all of them, and were intended to cheat and defraud the plaintiffs in error. The intervening petition therefore made out a good cause of action. The demurrer should have been overruled. Judgment will be entered in behalf of the plaintiffs in error. The judgment of the court below will be reversed, and for further proceedings.