McCune v. Essig

• Court: United States Circuit Court, District of Washington
• Citation: McCune v. Essig, 118 F. 273 (U.S. Cir. Ct., D. Wash. 1902)
• Decision Date: 29 October 1902
• Docket Number: 954.
• Parties: McCUNE v. ESSIG et ux.

118 F. 273

McCUNE v. ESSIG et ux.

No. 954.

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

October 29, 1902

The parties to this suit are all citizens of the state of Washington. The material facts averred by the amended bill of complaint are that the complainant is a minor and a daughter of William McCune, deceased, and his wife, Sarah McCune, now Sarah Donahue, and a stepdaughter of Daniel Donahue, who appears as her guardian ad litem; that her parents settled upon a quarter section of land, situated in Lincoln county in this state, while they were living together as husband and wife, the land being then part of the public domain of the United States, and subject to entry under the homestead law and after having made their settlement thereon William McCune on the 4th day of April, 1884, filed a claim to said land as a homestead in the proper district land office; that in the same year William McCune dies intestate, his only surviving heirs being his widow and the complainant, who continued to reside upon the land until December 17, 1889, on which date the mother of complainant made the required proof in the land office of full compliance with all the requirements of the homestead law, and on the 6th day of March, 1891, a patent for said land was issued to her; that in the year 1892 Mrs Donahue sold and conveyed the land to the defendants, and they have been in possession ever since, and have appropriated the rents, issues, and profits to their own use and claim title to the whole of said land adversely to the complainant; that the value of the land is $6,400; and that the complainant is the owner of an undivided one-half thereof, and entitled to half the rents, issues, and profits thereof from the time defendants took possession. A copy of the patent is annexed to the amended bill of complaint as an exhibit, from which it appears that the grantee is described therein as 'Sarah Donahue, formerly the widow of William McCune, deceased,' and the granting words are as follows: '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 object of the suit indicated by the averments and prayer of the bill is to obtain a decree establishing the complainant's claim of title to an undivided one-half of the land; for partition; or, if that is impracticable, to have the land sold and the proceeds divided, and to recover one-half the rents, issues, and profits.

The homestead law, after prescribing the conditions under which public lands may be entered and the manner of making entries, provides that no certificate shall be given or patent issued therefor until the expiration of five years from the date of the 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; * * * 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 an affidavit of nonalienation, and takes an oath of allegiance to the government of the United States, then '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. ' The lab further provides as follows: '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. ' Rev. St. U.S. Secs. 2291, 2292. The laws of Washington territory, in force in the year 1884, and still in force as laws of the state of Washington, provide that all property acquired during coverture by either husband or wife shall be community property, and to dispose of or incumber community real estate the husband and wife must join in the execution of a 'deed or other instrument of conveyance,' and upon the death of either, leaving surviving children, if no testamentary disposition has been made of any part of the community property, one half thereof goes to the survivor and the other half descends to the children. 1 Ballinger's Ann.Codes & St.Wash. §§ 4488-4490, 4621.

This suit was commenced in the superior court of the state of Washington for Lincoln county by service upon the defendants of a summons and copy of the complaint on the 29th day of April, 1902. A stipulation was signed by the solicitors who have appeared for the respective parties, whereby it was agreed that an amended complaint should be filed, and that the defendants should have 30 days after service thereof within which to enter their appearance. Within the stipulated time the defendants filed a demurrer to the amended complaint, and at the same time filed their petition and bond for removal of the case into this court, on the ground that the amended complaint tenders an issue which requires for its determination the construction and application of specified provisions of the laws of the United States. A transcript of the record was filed, and the case docketed in this court in due time. The complainant has failed to file any new pleading in this court, but has moved to remand the case to the state court, alleging in the motion three grounds, viz: '(1) The petition does not contain facts sufficient to warrant removal, nor to show that this court has jurisdiction; (2) the case does not involve any disputed question of federal law; (3) the controversy between the parties must be determined by the laws of the state of Washington. ' The court denied the motion to remand, and the case was thereupon argued and submitted upon a demurrer to the amended bill of complaint.

The complainant's case is grounded upon the theory that by the entry William McCune acquired a vested interest in the land; that the law entitles the widow of a deceased settler to receive the patent, but does not entitle her to any beneficial interest in the land greater than, or different from, her interest therein at the time of the entry; that the patent when issued relates back to the date of the entry and confirms the title of the settler as if the grant had been perfected and title conveyed on that date; that the community property law of this state operates uniformly upon all property acquired by married persons, including property acquired by grant from the government of the United States, so that in this instance the land in controversy is, by the doctrine of relation, to be deemed to have been acquired by Mr. and Mrs. McCune by purchase on April 4, 1884, and upon the death of William McCune in that year the title to an undivided one-half thereof passed by descent to the complainant. In their argument upon the motion to remand and upon the demurrer, the solicitors for the complainant contended that the several propositions above stated are settled by previous decisions of the supreme court of the United States, so that there is now no disputed question of federal law to be decided in adjudicating the rights of the parties to this suit.

Merritt & Merritt, for complainant.

Graves & Graves, for defendants.

HANFORD District Judge (after stating the facts).

The demurrer does not attack the bill of complaint on the ground of multifariousness, but is framed especially to raise the questions whether, under the homestead law, William McCune acquired any inheritable interest in the land, and whether the patent conveyed the title to the grantee in her own right, or constituted her a trustee for the complainant as to an undivided one-half of the land.

It appears to me that the vital question in this case is one of federal law. The government of the United States is the grantor of the title; the grant is made pursuant to the laws of the United States providing for the disposition of the public lands; the state of Washington is not a party to the grant; it never had power to legislate with respect to the disposition of the public lands of the United States within its boundaries; and the complainant does not deraign title from the state, but claims an undivided one-half of the estate conveyed by the patent, although her name does not appear in it, and she cannot brush the patent aside without impairing the foundation of her claim. If the patent could be eliminated, the complainant would then have to go back of the patent and rest her claim upon the law, and it is a national law and not a law of the state which must be applied and construed. In their argument upon the demurrer counsel for complainant called my attention to the following very excellent rule, found in the opinion of the supreme court in the case of Wilcox v. Jackson, 13 Pet. 517, 10 L.Ed. 264:

'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 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.'

Under this rule, to bar the jurisdiction of a United States circuit court it is necessary for the complainant to admit not only that the title of the United States has been conveyed, but also that the title 'vested according to the laws of the United States,' and it is impossible to keep questions of federal law...