Barney v. Dolph

• Decision Date: 01 October 1878
• Parties: BARNEY v. DOLPH
• Court: U.S. Supreme Court

97 U.S. 652

24 L.Ed. 1063

BARNEY v. DOLPH.

October Term, 1878

ERROR to the Supreme Court of the State of Oregon.

Ejectment by Dolph against Barney, for certain land in Polk County, Oregon, on which John Waymire, a married man, settled, under sect. 4 of the Donation Act of Sept. 27, 1850 (9 Stat. 496), and which he and Clarissa his wife after they had made and filed in the proper office the requisite final proof of settlement, continued residence, and cultivation, conveyed in fee by a quitclaim deed, bearing date Dec. 9, 1867, to one Riggs, under whom Dolph proved title.

Said Clarissa died before the issue of the patent. After its issue, said John executed a deed for the land to Barney, to whom, on the same day, Mary, a daughter of said John and Clarissa, also conveyed her interest in the land.

After Dolph had closed his case, Barney offered in evidence the deeds so executed to him; but upon Dolph's objection, the court excluded them, upon the ground that, by the deed to Riggs, said John and wife, then having full power of alienation, transferred the whole title to the land, and that no interest therein passed on her death to said John or said Mary. To this ruling Barney excepted. There was a verdict for Dolph; and the judgment rendered thereon by the Circuit Court for that county having been affirmed by the Supreme Court, Barney removed the case here, and assigns for error that the latter court erred in sustaining the ruling of the Circuit Court.

Mr. George H. Williams for the plaintiff in error.

Mr. J. H. Mitchell, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

The only question within our jurisdiction presented by this record is, whether after a husband and wife had perfected their right to a patent for lands in Oregon, under the Donation Act of Sept. 27, 1850 (9 Stat. 496), and after the amendment of July 17, 1854 (10 id. 306), they could, before receiving the patent, sell and convey the lands so as to cut off the rights of the children or heirs of the husband or wife, in case of his or her death before the patent was actually issued.

This depends upon the effect to be given the original act, when construed in connection with the amendment. The original act, after providing for a grant to the husband and wife of six hundred and forty acres of land, one-half to the husband and one-half to the wife in her own right, declared that, 'in all cases where such married persons have complied with the provisions of this (the) act, so as to entitle them to the grant as above provided, whether under the late provisional government of Oregon, or since, and either shall have died before patent issues, the survivor and children or heirs of the deceased shall be entitled to the share or interest of the deceased in equal proportions, except where the deceased shall otherwise dispose of it by testament, duly and properly executed according to the laws of Oregon;' and then 'that all future contracts by any person or persons entitled to the benefit of this act, for the sale of the land to which he or they may be entitled under this act before he or they shall have received patent therefor, shall be void.' The amendment of 1854 repealed this prohibition of sales.

The point to be decided is not whether, before the amendment, such a conveyance could have been made, or whether, if the conveyance had not been made, the children or heirs of a deceased husband or wife would take by descent or purchase, or whether the grant from the United States was one which took effect from the time of the passage of the act, or a subsequent entry and settlement, but whether, after the amendment, the husband and wife held by such a title that, before patent, but after their right to one had become absolute, they could sell and convey so as to vest in the purchaser either a legal or an equitable estate in fee-simple,—legal, if the title had already passed out of the United States by virtue of the act of Congress, and a full compliance with its provisions equitable, if the patent was needed to perfect the grant. The question is one of legislative intent, to be ascertained by examining the language which Congress has used, and applying it to the subject-matter of the legislation.

The reason of the exceptional policy of the United States in respect to the public lands in Oregon is to be found in the anomalous condition of the inhabitants of that Territory when the government of the United States exerted positively its jurisdiction over them. For more than thirty years, under the operation of treaty stipulations between the two countries (8 Stat. 249 and 360), the citizens of the United States and the subjects of Great Britain had been permitted to occupy jointly the territory afterwards included in that State. They had no government except such as they had organized 'for the purposes of mutual protection and to secure peace and prosperity among' themselves. The actual condition of affairs is graphically described in Lownsdale v. City of Portland (Deady, 11), by the able and experienced judge of the district of Oregon, who has been connected with the administration of justice there for more than a quarter of a century, and was considered by this court in Stark v. Starrs, 6 Wall. 402, Lamb v. Davenport, 18 id. 307, and Stark v. Starr, 94 U. S. 477. As part of their plan of government, they established a 'land law,' by which free males over the age of eighteen years were permitted to occupy and hold six hundred and forty acres of land; and regulations were adopted for designating claims and protecting the occupants in their possession. While not denying to the United States the ownership of the soil, the occupants, to all intents and purposes, used and dealt with the lands they severally claimed as their own.

Finding this to be the condition of affairs, and recognizing the equitable claims of the inhabitants, Congress, within two years from the time of the organization of the territorial government, passed the Donation Act, which was framed so as to conform in a large degree to the regulations of the old system, and to grant to the original settlers holding under that system the whole, or a considerable portion, of the lands they had been occupying and cultivating. Sect. 4 was evidently intended for the special benefit of this class, and, stripped of details, in effect granted to the white settlers then residing...