Hatch v. Ferguson

• Decision Date: 06 October 1893
• Citation: Hatch v. Ferguson, 57 F. 959 (U.S. Cir. Ct., D. Wash., N.D. 1893)
• Court: United States Circuit Court, District of Washington, Northern Division
• Parties: HATCH v. FERGUSON et al.

57 F. 959

HATCH v. FERGUSON et al.

United States Circuit Court, D. Washington, Northern Division.

October 6, 1893

A. D Warner, Stratton, Lewis & Gilman, Junius Rochester, and W Scott Beebe, for complainant.

Francis C. Barlow and Brown & Brownell, for defendants.

HANFORD District Judge.

The complainant is an Indian woman, born within the United States, and is the widow of Ezra Hatch, who was a citizen of the United States. Although she is an illiterate person, and unable to converse in the English language, the evidence shows that upon her marriage she voluntarily took a residence apart from the tribe to which she belonged, and adopted the habits of civilized life, by reason of which fact and her marriage to a citizen she is entitled to the same rights as other female citizens. Supp Rev. St. (2d Ed.) p. 536, § 6. Being a citizen of the United States and a resident of the state of Oregon at the time of the commencement of this suit, she is also a citizen of the state of Oregon, and entitled to prosecute this suit in this court against the defendants, who are citizens of the state of Washington.

The object of the suit is to obtain a decree canceling certain deeds affecting the title to a tract of 160 acres of land, situated within the limits of the city of Everett, in this state, enjoining the defendants from claiming any interest in said land, and declaring the complainant to be the true owner thereof. The history of the title which is the subject of controversy, in so far as material to the determination of this case, is as follows: The said Ezra Hatch, under the homestead law of the United States, with his family, consisting of the complainant and their children, settled upon and claimed said land in the year 1886, and did continuously reside upon and claim the same as a homestead until the time of his death, which occurred in July, 1890. During his last illness, being in need of money, and being assured by a neighbor that, if he would commute said homestead, and perfect his title thereto, by a cash entry, he could then sell said land to a person who was ready to buy it, for the price of $1,500 besides the amount necessary to pay the government price and all expenses of proving up, said Ezra Hatch initiated proceedings to perfect his title in that manner by causing the requisite notice of his intention to prove up to be published, but his death occurred before the time fixed in said notice for making the final proof and payment. By his last will and testament, said Ezra Hatch constituted the defendant E. C. Ferguson his executor, with authority to manage his estate and settle up his affairs, free from the control of the probate court, and without giving bonds, and also appointed said Ferguson to act as guardian of his minor children until they should each become of age or choose another guardian. That part of said will which makes disposition of the estate reads as follows:

'I give and bequeath to my daughter, Esther Hatch, and to my sons, Dexter Hatch, Arthur Hatch, Cyrus Hatch, and Ezra Hatch, all my estate, real and personal, of every name and nature whatsoever, owned by me at the time of my death, after paying all of my just debts and the admitting of this, my last will, to probate, and the sum of five dollars hereinafter bequeathed to my wife, Josephine Hatch; said estate being the one-half interest in the community property now owned by me and my said wife, from which I bequeath to my said wife the sum of five dollars, and it is my wish and desire that my said daughter and sons share and share alike in my said estate.'

Said will was duly admitted to probate in the probate court for Snohomish county, and letters testamentary were issued to said Ferguson, July 22, 1890. Within a few weeks after the death of her husband, the complainant, without consulting Ferguson, or being influenced by either of the defendants to take such step, caused a notice to be published of her intention to make final proof and entry of said land, in her right as widow of the deceased homestead claimant. She had at that time no money for the purpose, and had made no definite arrangement to borrow the necessary amount, but seems to have relied upon a neighbor to supply or obtain it for her. After giving such notice she went to see Ferguson, and had an interview with him, at his solicitation, in which he advised her to not borrow the money, giving as a reason that those upon whom she was depending were liable to disappoint her, or, if she mortgaged her land, she would be unable to pay interest, or raise money to discharge the debt, without sacrificing the property, and he also assured her that he would advance money to her for the purpose. After said interview Mrs. Hatch seems to have relied upon Ferguson to supply the money necessary to perfect the entry, and on September 19, 1890, she went before the county clerk of Snohomish county with her witnesses, and made the final proof. Ferguson was not present at the time this was done, but met her in Snohomish city on the evening of the same day, and made provision for her and her children to remain at a hotel that night; and on the following morning he obtained from her a power of attorney, which will be hereafter referred to. Two days after obtaining the power of attorney, Ferguson advanced $240 to pay for the land and fees; and on September 26, 1890, the proofs were filed and payment made in the United States land office at Seattle. On November 16, 1891, a patent for said land was issued to the complainant. Besides the said homestead claim, the estate of Ezra Hatch consisted of 160 acres of land in an adjoining section, to which he had acquired title by the location thereon of a land warrant issued to him for services in the United States navy during the Mexican War, (which land is also the subject of a kindred suit now pending in this court,) and personal property of trifling value. The two tracts of land are similar to each other as to situation, quality, and value, and until the scheme of building the city of Everett had taken definite form said lands were not worth to exceed $10 per acre. The most valuable timber had been sold and removed, and the family were unable to obtain any income from said land otherwise than by selling it. In the summer and fall of 1890 the defendant Henry Hewitt, Jr., was engaged in buying land in the vicinity of the Hatch lands, as agent for a syndicate having in view the founding and building of a city, in furtherance of which purpose the Everett Land Company, one of the parties defendant herein, was incorporated, a city was laid out upon the lands purchased by Hewitt and his subagents, and large sums of money have been laid out in the improvement of streets, the erection of buildings and industrial works, and in the construction of railroads. In consequence of said expenditures and operations, land in and about the said town site rose in value very rapidly during the last few months of 1890 and the year 1891. On the 21st of October, 1890, the defendant Ferguson, under the power of attorney given him by the complainant, executed a deed to the defendant Henry Hewitt, Jr., of all her right, title, and interest in and to both tracts of land,--that is to say, the said homestead claim, and the 160-acre tract acquired by the location of said land warrant, which tract, for convenience of reference, has been designated in the evidence as the 'Old Place,'--and received in payment from Hewitt...