Buchser v. Morss

• Decision Date: 03 February 1913
• Docket Number: 2,151.
• Citation: 202 F. 854
• Parties: BUCHSER v. MORSS et al.
• Court: U.S. Court of Appeals — Ninth Circuit

202 F. 854

BUCHSER v. MORSS et al.

No. 2,151.

United States Court of Appeals, Ninth Circuit.

February 3, 1913

David Herman, of Spokane, Wash., for appellant.

John Salisbury, for appellee Annie Buchser.

W. W Zent, for other appellees.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge.

The appellant, who was the complainant in the court below in a suit to quiet title, alleged in his bill that in 1887 he married a widow who had three children; that in June, 1897 he and his family settled upon 160 acres of public land under the homestead law, and that on December 17, 1903, he received the patent therefor; that with money derived from the sale of timber standing on the homestead he purchased another 160 acres of land; that in September, 1911, his wife died leaving surviving her the aforesaid three children, who were the parties defendant to the bill; that the defendants claimed an undivided one-half interest in all of the lands described in the complaint on the ground that the same was community property of the appellant and of their mother that, in fact, all of said lands were the sole and separate property of the appellant. A demurrer to the bill was sustained for want of equity, and the bill was dismissed.

The appellant's contention is that a homestead acquired by an entryman under the homestead laws of the United States is the separate property of the entryman, and that lands purchased with the proceeds of a sale of timber cut from said homestead is likewise his separate property. The Supreme Court of the state of Washington has uniformly held that land in that state acquired under the homestead laws of the United States is the community property of the entryman and his wife. Kromer v. Friday, 10 Wash. 621, 39 P. 229, 32 L.R.A. 671; Ahern v. Ahern, 31 Wash. 334, 71 P. 1023, 96 Am.St.Rep. 912; Cox. v. Tompkinson, 39 Wash. 70, 80 P. 1005; Hall v. Hall, 41 Wash. 186, 83 P. 108, 111 Am.St.Rep. 1016; Cunningham v. Krutz, 41 Wash. 190, 83 P. 109, 7 L.R.A. (N.S.) 967; Krieg v. Lewis, 56 Wash. 196, 105 P. 483, 26 L.R.A. (N.S.) 1117. It is of no assistance to us to refer to Missouri, Louisiana, and California cases, such as Wilkinson v. American Iron Mountain Co., 20 Mo. 122, Rouquier's Heirs v. Rouquier's Executors, 5 Mart.N.S. (La.) 98, 16 Am.Dec. 186, and Noe v. Card, 14 Cal. 577, holding that a royal grant or gift to either of the two spouses did not enter into the community of acquisitions and gains which under the Spanish law resulted from the mere fact of marriage, for if, indeed, land acquired under the homestead or pre-emption laws of the United States is to be classed among gifts from the government, the Supreme Court of Washington has rejected the doctrine that such property may not be made community property.

But it is urged that the question is not to be determined by the law of the state, but by the law of the United States, and that the state law is powerless to control the plain provisions of the homestead laws of the United States which give the title to the homestead entryman as his separate property, and in support of that contention the appellant cites Hall v Russell, 101 U.S. 503, 25 L.Ed. 829, Bernier v. Bernier, 147 U.S. 242, 13 Sup.Ct. 244, 37 L.Ed. 152, and McCune v. Essig, 199 U.S. 382, 26 Sup.Ct. 78, 50 L.Ed. 237. Those cases, however, do not sustain the contention. They are all cases in which the court was called upon to construe the land laws, and the rights of settlers thereunder, prior to the time when the right to the title had matured under the settlement. They have no relation to the question which is presented in this case, which is the question of the authority of a state Legislature to make community property of land which has passed from the United States to the homestead entryman. In Hall v. Russell all that was decided was that under Donation Act Sept. 27, 1850, c. 76, 9 Stat. 496, the title to the grant did not vest in the settler before the conditions had been fully performed, and that an unmarried man who had settled upon a half section of public land in Oregon, and after residing thereon less than a year died, had no devisable interest in the land, and that on his death his heirs, not by inheritance, but by the terms of the act, became qualified grantees, with the right to continue the residence and settlement, and to acquire title. In Bernier v. Bernier it was held that, where a homestead entryman dies a widower and without having acquired a patent, the right to complete the proofs and acquire the patent passes, under Revised Statutes, Sec. 2291 (U.S. Comp. St. 1901, p. 1390), to all his children equally. And in McCune v. Essig it was held that, upon the death of the...