Mary Cune v. Fred Essig

• Court: U.S. Supreme Court
• Writing for the Court: McKenna
• Citation: Mary Cune v. Fred Essig, 199 U.S. 382, 26 S.Ct. 78, 50 L.Ed. 237 (1905)
• Decision Date: 09 November 1905
• Docket Number: No. 61,61
• Parties: MARY McCUNE, by Daniel Donahue, Her Guardian ad litem, Appt., v. N. FRED ESSIG and Emma C. Essig, His Wife

199 U.S. 382

26 S.Ct. 78

50 L.Ed. 237

MARY McCUNE, by Daniel Donahue, Her Guardian ad litem, Appt.,

v N. FRED ESSIG and Emma C. Essig, His Wife.

No. 61.

Submitted November 9, 1905.

Mecided November 27, 1905.

Mr. W. E. Cullen for appellant.

[Argument of Counsel from pagse 383-384 intentionally omitted] Messrs. George Turner, F. H. Graves, and W. G. Graves for appellees.

[Argument of Counsel from pages 384-386 intentionally omitted] Mr. Justice McKenna delivered the opinion of the court:

Suit in equity to establish title in appellant to an undivided one half of northeast quarter of section 6, township 25 north, range 38 east, Washington meridian 2, and for accounting of rents and profits, and for partition between appellant and appellees.

It was originally brought in the superior court in and for Lincoln county in the state of Washington. A demurrer was filed to the amended complaint, and a petition to remove the suit to the circuit court for the district of Washington, eastern division, on the ground that the suit involved the construction of §§ 2291 and 2292 of the Revised Statutes of the United States (U. S. Comp. Stat. 1901, pp. 1390-1394), and of all statutes of the United States relating to homesteads. The suit was removed. In the circuit court a motion was made to remand, which was denied. The demurrer was sustained, and appellant, electing to stand upon her bill, it was decreed that she had no right, title, or interest in the land. 118 Fed. 273. The decree was affirmed by the circuit court of appeals. 122 Fed. 588.

The facts as exhibited by the bill of complaint are that appellant is the daughter of William McCune, deceased, and his wife, Sarah McCune, now Sarah Donahue, and the stepdaughter of Daniel Donahue, who appears as her guardian ad litem. William McCune and his wife, Sarah, settled on the land in controversy, it being a part of the public domain, and subject to settlement under the homestead laws. On the 4th of April, 1884, McCune filed a claim to the land as a homestead in the proper land district. In the same year he died intestate leaving surviving as his only heirs appellant and his wife, Sarah. They continued to reside on the land until December 17, 1889, upon which day the mother of appellant made the required proof of full compliance with the homestead laws, and on the 6th of March, 1891, a patent was issued to her. In the year 1892 she, having become Mrs. Donahue, sold and conveyed the land to appellees, who went into possession of it and have been in possession of it ever since. The value of the land is $6,400. The patent recites:

'Whereas there has been deposited in the General Land Office of the United States a certificate of the register of the land office at Spokane Falls, Washington, it appears that, pursuant to the act of Congress approved 20th May, 1862 [12 Stat. at L. 392, chap. 75, U. S. Comp. Stat. 1901, p. 1388], 'to secure homesteads to actual settlers on the public domain,' and the acts supplemental thereto the claim of Sarah Donahue, formerly the widow of William McCune, deceased, has been established and duly consummated, in conformity to law, for the south half of the northeast quarter and the lots numbered one and two of section six, in township twenty-five north of range thirty-eight of Willamette meridian in Washington, containing one hundred and sixty-three and eighty-four hundredths of an acre, according to the official plat of the survey of the said land, returned to the General Land Office by the Surveyor General:

'Now know ye, that there is, therefore, granted by the United States unto the said Sarah Donahue the tract of land above described, to have and to hold the said tract of land, with the appurtenances thereof, unto the said Sarah Donahue and to her heirs and assigns forever.'

The action of the lower courts on the motion to remand and on the merits are attacked by appellant to a certain extent on the same ground; to wit, that the laws of Washington determine the title of the parties, not the laws of the United States. The interest in McCune, acquired by his entry, it is contended, was community property, and passed to appellant under the laws of the state. Sections 4488, 4489, 4490, and 4491 of the statutes of Washington provide that property and pecuniary rights owned by either husband or wife before marriage, or that acquired afterwards by gifts, bequests, devise, or descent, shall be separate property. Property not so acquired or owned shall be community property, and, in the absence of testamentary disposition by a deceased husband or wife, shall descend equally to the legitimate issue of his or their bodies. 1 Ballinger's Anno. Codes & Statutes. Relying on these provisions the argument of appellant is, and we give it in the words of her counsel:

'When William McCune entered this land he had not the legal title, but he had an immediate equitable interest and the exclusive right of possession until forfeited by failure to carry out the terms of his entry. United States v. Turner, 54 Fed. 228.

'The terms of his entry were carried out. The patent issued by reason of his entry. The state legislature had the right to direct to whom that equitable right and interest should pass. If the rights and interests under that entry had been forfeited, the state law would have no effect upon the title to the land. That equitable interest ripened, and was confirmed by the patent.'

But this is begging the question. What interest arose in McCune by his entry, who could, upon his death, fulfil the conditions of settlement and proof, and to whom and for whom title would pass, depended upon the laws of the United States. Bernier v. Bernier, 147 U. S. 242, 37 L. ed. 152, 13 Sup. Ct. Rep. 244. The motion to remand was rightly overruled. On the merits we think the ruling of the lower courts was also right. Hutchinson Invest. Co. v. Caldwell, 152 U. S. 65, 38 L. ed. 356, 14 Sup. Ct. Rep. 504. Hoadley v. San Francisco, 94 U. S. 4, 24 L. ed. 34, and other cases relied on by appellant, are not in point.

Chapter 5, title 32, of the Revised Statutes, provides who may enter public lands as a homestead, and the conditions to be observed as to entry and settlement. By §§ 2291 and 2292 it is provided as follows:

'Sec. 2291. No certificate, however, shall be given or patent issued therefor until the expiration of five years from the date of such entry; and if, at the...