Brazee v. Schofield

• Decision Date: 06 August 1883
• Citation: 3 P. 265,2 Wash.Terr. 209
• Parties: BRAZEE v. SCHOFIELD AND ANOTHER.
• Court: Washington Supreme Court

3 P. 265

2 Wash.Terr. 209

BRAZEE v. SCHOFIELD AND ANOTHER.

Supreme Court of Territory of Washington

August 6, 1883

Appeal from Second judicial district, terms at Vancouver.

Geo. H. Williams and Leander Holmes, for appellant.

B. F. Dennison, for appellee.

GREENE, C.J.

The first step towards deciding this cause is to determine clearly the nature of what takes place between the United States and its donee, when proceedings are had under the Oregon donation act, to establish title in the latter. By the act there "is granted" to every man of a certain description-or, if he has a wife, then to him and her, in equal parts, as shall be set off to them severally by the surveyor general-a tract of land not to exceed a certain area, on condition that the same shall be selected in a certain way, and in consideration that it shall be resided upon and cultivated a certain length of time. This grant is subject, however, to the qualification that if husband and wife have complied with the provisions of the act, so as to entitle them to the grant, and either of them, before patent has issued, shall have died, intestate as to his or her share, the survivor and children or heirs of the deceased shall be entitled to the share or interest of the decedent in equal proportions. Throughout the transaction, the United States holds the position of seller and the donee that of purchaser. As soon as the necessary selection has been made, and the prescribed residence and cultivation completed, the transaction is closed, so far as bargain and sale are concerned. Nothing remains but to assure the vendor, or the vendor's agents, the officers of the land-office, that as matter of fact the grant has become effective by meeting a fit grantee who has rendered the proposed consideration, so that they may furnish the grantee with good and sufficient evidence of his title. Final proof so called, is no part of the consideration which the grantee gives, but is merely evidentiary matter, provided for the purpose of satisfying the land-office that the right of the grantee is perfect and entitles him to a patent.

The act, and not the patent, is the instrument which works the transfer of title. Its language is unmistakable, "there shall be and hereby is granted." One conveys, the other evidences title. The patent is but a formal and solemn piece of evidence that all things essential to be done under the donation act before passage of title have been done, and that, therefore, under the act, title has actually passed out from the United States into the donee. Act and patent together fulfill all the functions of an ordinary deed of conveyance. The two together both convey and evidence title. The patent merely evidences, and does no more; but the act evidences to a certain extent only, and then, over and beyond that, does alone and perfectly convey. When patent issues, it relates back to and combines with the act, as of the date when a fit grantee rendering full consideration appeared, and so as to form with the act a perfect muniment of title. Title under the donation act, therefore, is always complete before patent issues, and the patent issues by virtue of title completed, and not otherwise.

In the case at bar the widow and heirs, if they have acquired any title at all, have got it under the donation act. Their patent so recites, and neither they nor any grantee of theirs can, while claiming under that patent, deny it. They are estopped from saying, to the prejudice of any grantee of theirs, but that the husband and ancestor, Amos Short deceased, duly resided upon and cultivated, for the prescribed period, the donation land claim known as his, or that by virtue of a full compliance with the essential requirements of the donation act, his widow and children were, at the date of his death, in January, 1853, entitled under the act to that land claim. Such being their situation the great question of this case is, has that title, as to the parcel of land here in dispute, passed, by reason of their acts, from them to the appellees? All provisions of the donation act necessary and precedent to the passage of title had been complied with prior to 1855, and the widow and children then held among them, undivided, all disposable interest in the land. In that year, or the next, as appears from the evidence, they agreed to and did, as far as they could, divide the claim into halves, an east half and a west half, assigning to the widow the east and to the children the west. This, of course, was subject to whatever decision the surveyor general might make in determining where the division line should be drawn. Assuming that the surveyor general would affirm or fall in with this division, and that the west half would by him be set off to them, the children afterwards, in 1856, undertook to procure a further division among themselves of that half. To effect this, those of them who were of age applied personally, and those not of age by guardian, to the probate court for a partition. Pursuant to or connected with that application, a partition-at least in form-was made, or sought to be made, by the court. Considered as a judicial proceeding, it was, doubtless, void, except in so far as it engaged the court in supervising and sanctioning the acts of the participating guardians. But the formal partition all the heirs willingly made actual and substantial by each, personally or by guardian, spontaneously taking possession and dominion in severalty of his or her portion, and by mutually paying and accepting owelty sufficient fully to equalize all the allotments. Was it in fact, then, valid or void? It is argued by appellant that it was void, for three reasons: (1) Because the guardians acted without authority, and have never had their action affirmed by their wards since the latter became of age; (2) because it was by parol, and not by deed; (3) because that half of the donation claim which the heirs undertook to subdivide had not yet been assigned to them by the surveyor general.

As to the first objection, the assumption...