McCune v. Essig

• Decision Date: 04 May 1903
• Docket Number: 924.
• Citation: McCune v. Essig, 122 F. 588 (9th Cir. 1903)
• Parties: McCUNE v. ESSIG et ux.
• Court: U.S. Court of Appeals — Ninth Circuit

122 F. 588

McCUNE v. ESSIG et ux.

No. 924.

United States Court of Appeals, Ninth Circuit.

May 4, 1903

Merritt & Merritt, for appellant.

Graves & Graves, for appellees.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge.

William McCune and his wife settled upon a quarter section of land in Lincoln County, Wash., under the homestead law of the United States, and on April 4, 1884, he filed, in the proper district land office, a claim to said land as a homestead. In the same year he died intestate, his widow, sarah McCune, and his daughter, the appellant herein, surviving him. On December 17, 1889, Sarah McCune, then Sarah Donahue, made proof in the land office of full compliance with the requirements of the homestead law, and on March 6, 1891, a patent was issued to her therefor, granting the said land to her, '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. ' Subsequently she conveyed the land to the appellees. The present suit is brought by her daughter to establish a claim to an undivided one-half interest in the land, on the theory that, although the patent was issued to her mother, the homestead was, by virtue of the law of Washington, community property, and William McCune, before making final proof and before completing his residence, had a vested, inchoate, or equitable title to the homestead, and that upon his death his right or equity descended in equal shared to the widow and to the appellant according to the law of the state in which the land is situated. The Circuit Court held adversely to this contention.

On the appeal the question is presented whether the cause was removable from the state court to the Circuit Court of the United States. It is contended that no federal question is involved in the controversy, for the reason that, the patent having issued to the widow of William McCune, the only question involved is one of the construction of the statutes of descent of the state of Washington. We think the true controversy in this case concerns the construction to be given sections 2291 and 2292 of the Revised Statutes (U.S Comp. St. 1901, pp. 1390, 1394). The first of these sections prescribes the conditions under which land may be entered under the homestead law, and declares that 'no certificate, however, shall be given or patent issued therefor until the expiration of such time, from the date of such entry; and if at the expiration of such time, or at any time within two years thereafter, the person making such entry; or if he be dead, his widow; or in case of her death his heirs or devisee; or in case of a widow making such entry, her heirs or devisee, in case of her death, proves by two credible witnesses that he, she, or they have resided upon or cultivated the same for the term of five years immediately succeeding the time of filing the affidavit, and makes affidavit that no part of such land had been alienated except as provided in section twenty-two hundred and eighty-eight, that he, she, or they will bear true allegiance to the government of the United States; then, in such case, he, she, or they, if at that time citizens of the United States, shall be entitled to a patent as in other cases provided by law. ' Section 2292 further provides: 'In case of the death of both father and mother, leaving an infant child or children under twenty-one years of age, the right and fee shall inure to the benefit of such infant child or children. ' The statute expressly authorizes the issuance of the patent to the widow of the deceased homestead settler. It makes no provision for the children of such settler, and in its terms contains no recognition of any right initiated by him. The question presented is whether or not the widow was a donee in her own right of the land from the United States. If she were such donee, the statutes of the state of Washington were powerless to divest her of her interest or to charge with a trust the title so patented to her. The whole case turns on the construction of the homestead act, and clearly exhibits, in our opinion, ground for removing the cause to a court of the United States. The law of the state of Washington governs the descent of lands lying within the state, but the question here is whether there had been any descent of land. That question depends on the nature of the estate which the widow of William McCune took in the land by virtue of her compliance with the homestead law, and the patent which issued to her.

Counsel for the appellant rely upon Gold Washing & Water Co. v. Keyes, 96 U.S. 199, 24 L.Ed. 656; Romie et al. v. Casanova, 91 U.S. 379, 23 L.Ed. 374; McStay et al. v. Friedman, 92 U.S. 723, 23 L.Ed. 767; Hoadley v. San Francisco, 94 U.S. 4, 24 L.Ed. 34; Blackburn v. Portland Gold Mining Co., 175 U.S. 571, 20 Sup.Ct. 222, 44 L.Ed. 276-- as supporting the doctrine that, after the United States has parted with its title to land, any dispute concerning the same which does not bring in question the validity of the grant presents no federal question, and they assert that in this case they make no question of the validity of the grant to the widow of William McCune, but they content that the question whether she took the beneficial interest as well as the legal title depends upon the effect to be given to the state statutes, and not upon the acts of Congress. None of the decisions so cited applies to the case which we have before us. The case chiefly relied upon is Hoadley v. San Francisco. In that case the grant was of the right and title of the United States to lands within the corporate limits of the city of San Francisco. It was a grant to the city and to its successors for certain beneficiaries. Hoadley claimed to be one of the beneficiaries, and the court said that the question involved 'did not arise under the laws of the United States, but under the ordinances of the city as ratified by the act of the Legislature. ' In that case the trust was expressed in the grant. The only question before the court was, who were the beneficiaries? We agree with the Circuit Court that an apt rule is found in the opinion of the Supreme Court in the case of Wilcox v. McConnell, 13 Pet. 517, 10 L.Ed. 264, in which the court remarked:

'We hold the true principle to be this: that whenever the question in any court, state or federal, is whether a title to land which had once been the property of the United States has passed, that question must be resolved by the laws of the United States; but that whenever, according to those laws, the title shall have passed, then that property, like all other property in the state, is subject to the state legislation, so far as that legislation is consistent with the admission that the title passed and vested according to the laws of the United States.'

The Supreme Court entertained jurisdiction of similar cases in Bernier v. Bernier, 147 U.S. 242, 13 Sup.Ct. 244, 37 L.Ed. 152, and Hutchinson Investment Co. v. Caldwell, 152 U.S. 65, 14 Sup.Ct. 504, 38 L.Ed. 356. We find no error in the ruling of the Circuit Court in refusing to remand the cause to the state court.

Nor do we find error in the conclusion which was reached by the Circuit Court on the merits of the case. The estate granted to a homestead settler is granted on conditions precedent. These conditions are residence for the required time cultivation, and final proof. Until all of these conditions are complied with, the law gives him no more than the right of possession. It provides that, in case of his death before the completion of the conditions, his widow shall have all the rights which he would have...