Warren v. De Force

• Decision Date: 03 January 1899
• Citation: 34 Or. 168,55 P. 532
• Parties: WARREN et al. v. DE FORCE et al.
• Court: Oregon Supreme Court

55 P. 532

34 Or. 168

WARREN et al. v. DE FORCE et al.

Supreme Court of Oregon

January 3, 1899

Appeal from circuit court, Clatsop county; Thomas A. McBride, Judge.

Suit by P.C. Warren and another against J.H. De Force and others to have defendant Sarah De Force decreed to hold the legal title to certain land in trust for plaintiffs. Decree for defendants, and plaintiffs appeal. Affirmed.

C.W Fulton, for appellants.

J.H Smith, for respondents.

BEAN J.

This is a contest between different purchasers of the same land from the state. The facts are that on February 28 1893, the plaintiff D.K. Warren applied to the board of school land commissioners to purchase 27.88 acres of tide lands in Clatsop county fronting and abutting on the donation claims of Eberman and Coffinbury, and lot 1 of section 15 township 8 N., of range 10 W., and paid the state the appraised value thereof. His application, being in the form required by statute, was approved, and a deed made to him, but by mistake of the clerk of the board the tide land in front of lot 1 was omitted therefrom. Thereafter, and in February, 1893, the defendant Sarah De Force, with knowledge of plaintiff's prior application, applied for and purchased from the board of commissioners the tide land in front of lot 1, and received a deed therefor, and the object of this suit is to have her decreed to hold the legal title of such land in trust for Warren, and his co-plaintiff, who has succeeded to an undivided half of his interest therein. As a part of and accompanying his application, Warren filed an affidavit made by himself, of the kind and substance required of persons applying to purchase state lands by the statute in force at that time, in which he states, among other things, that he had not made any previous purchase of lands from the state, which, together with the lands described in the application, would exceed 320 acres, although, as it is now admitted, he had in fact prior to that time purchased from the state more than 400 acres of land in his own name and right. Upon these facts the court below held that plaintiffs were not entitled to any relief in this suit, because Warren had exhausted his right to purchase lands of the state prior to his application for the lands in controversy; and this is practically the only question in the case.

Warren's application was made under the provisions of the act of October 18, 1878 (Laws 1878, p. 41). By section 3 of this act it is provided that the board of commissioners for the sale of school and university lands "are hereby authorized and required, to sell school and university capitol building lands, land granted to the state by the United States adjoining salt springs, lands granted the state for the purpose of internal improvement, and agricultural college lands which have been, or may hereafter be, selected, to actual settlers, in such quantities as they may deem advantageous to the state, not exceeding a half section to any one settler, and not exceeding one hundred and sixty acres to any one person not a settler." Section 4 provides that: "Such board of commissioners are further authorized to sell swamp and overflowed lands, which may have been or may hereafter be selected, as fast as such selections are segregated and approved, as required by the laws of the United States granting such lands to the state; and tide and overflowed lands on the sea coast, owned by the state, in such quantities as they shall deem most advantageous to the state, not exceeding three hundred and twenty acres to any one person." And section 5 provides that all applications to purchase any of the lands of this state "shall be accompanied by the affidavit of the applicant, taken before some notary public or county clerk, to the effect that he is eighteen years of age, is a citizen of the United States, or has declared his intention to become such; that he is a citizen of this state; that he has not directly or indirectly made any previous purchase of lands from the state, or any for him, which, together with the...