Kelsay v. Eaton

• Decision Date: 16 May 1904
• Citation: 45 Or. 70,76 P. 770
• Parties: KELSAY v. EATON et al.
• Court: Oregon Supreme Court

76 P. 770

45 Or. 70

KELSAY v. EATON et al.

Supreme Court of Oregon

May 16, 1904

Appeal from Circuit Court, Sherman County; W.L. Bradshaw, Judge.

Suit by B.S. Kelsay against Alexander Eaton and others. Decree for complainant. Defendants appeal. Reversed.

This is a suit to quiet the title to real property. The facts are that, under the provisions of the timber culture act of the United States, one J.J. Eaton entered 80 acres of land in Sherman county; that, before making final proof, he died unmarried, and without issue, having devised all his real and personal property to plaintiff, who was named as his executor; that the will was admitted to probate in that county, and letters testamentary were issued to plaintiff who, having duly qualified, made such proof as testamentary heir; that the patent for the land was issued to the heirs of the testator; and that the defendant Alexander Eaton, the father of the deceased and his statutory heir, executed a deed of an undivided one-half thereof to the defendant George W. Kinsey, who accepted it with record notice of plaintiff's claim to the real property. The cause, being at issue, was tried, resulting in a decree as prayed for in the complaint, and the defendants appeal.

A.C Woodcock, for appellants.

J.B Hosford, for respondent.

MOORE, C.J. (after stating the facts).

The question presented by this appeal is whether an entryman under the timber culture act of the United States, before receiving a final certificate, has a devisable interest in the land.

The amendatory act of Congress approved June 14, 1878 (20 Stat. 113, c. 190), prescribing the method of securing the title to public land under the timber culture act, so far as deemed material herein, is as follows:

"Section 1. That any person who *** has arrived at the age of twenty-one years, and is a citizen of the United States *** who shall plant, protect, and keep in a healthy, growing condition for eight years ten acres of timber, on any quarter-section of any of the public lands of the United States, or five acres on any legal subdivision of eighty acres, *** shall be entitled to a patent for the whole of *** such legal subdivision *** at the expiration of said eight years, on making proof of such fact by not less than two credible witnesses, and a full compliance of the further conditions as provided in section two. ***"

"Sec 2. That the person applying for the benefits of this act shall, upon application to the register of the land district in which he or she is about to make such entry make an affidavit, before the register or the receiver. *** And upon filing said affidavit with said register and said receiver and on payment of ten dollars, if the tract applied for is more than eighty acres; and five dollars if it is eighty acres or less, he or she shall thereupon be permitted to enter the quantity of land specified. *** That no final certificate shall be given, or patent issued, for the land so entered until the expiration of eight years from the date of such entry; and, if, at the expiration of such time, or at any time within five years thereafter, the person making such entry, or, if he or she be dead, his or her heirs or legal representatives, shall prove by two credible witnesses that he or she or they have planted, and, for not less than eight years, have cultivated and protected such quantity and character of trees as aforesaid; that not less than twenty-seven hundred trees were planted on each acre and that at the time of making such proof that there shall be then growing at least six hundred and seventy-five living and thrifty trees to each acre, they shall receive a patent for such tract of land."

In Cooper v. Wilder, 111 Cal. 191, 43 P. 591, 52 Am.St.Rep. 163, in construing the provision of the foregoing act, it was held that an entryman who died before making final proof had no devisable interest in the land, and that his heirs took the premises as donees of the United States and not by inheritance from him. In deciding that case, Mr. Justice Temple, speaking for the court, says: "Obviously the privilege or right acquired by the entry and filing is personal, and cannot be transferred except as authorized in the act. The death of the applicant before performance renders him incapable of performance, and that event would end the claim, but for the provisions of the act, which authorize the heirs to prove that he or they has or have performed. Does the heir in such case take by inheritance from the applicant, or is he, by appointment in the act itself, a substituted beneficiary of the government to whom the title goes by direct grant? It is...