3 Or. 459 | Or. | 1869
The patent having issued to the heirs of Joseph and Sarah Delay, carries with it the presumption that all prerequisites of the law have been complied with by them. (9 Cranch. 87; 18 How. S. C. Rep. 87.) The defendant rests his right to the premises, and to have the patent canceled, on the ground that he is the administrator of the estate of Loring. If Loring had at the time of his death an estate in the premises that could be reached by creditors, or that was subject to be administered upon, then the defense is good, otherwise it fails. If there is a right in the heirs of Loring to the premises, and none subject to administration, they must be the parties in the suit to cancel and not the administrator. One of the rules governing equity proceedings is, that every suit shall be prosecuted in the name of the real party in interest, except that an executor or an administrator, a trustee of an express trust, or a person expressly authorized to sue by statute, etc., may sue without joining with him the person for whose benefit the
It is claimed on the part of the defendant, that Loring had in the land, up to the time of his death, a conditional fee, or estate in fee, liable to be defeated on failure to comply with conditions subsequent. Strictly speaking, and
It is claimed on the part of the plaintiffs, that the grant made by the fourth section, with the limitations contained in the eighth section of the donation law, creates an estate known in law as a conditional limitation; this position is ako incorrect. A limitation marks the period which determines the estate, without any act on the part of him who has the next expectant interest. Upon the happening of the proscribed contingency, the estate first limited comes to an end at once, and the subsequent estate arises. A conditional limitation is of a mixed nature, partaking both of a condition and a limitation; of a condition, because it
It is provided'in the eighth section, that proof of compliance with the conditions of the donation law up to the time of the death of such settler, shall be sufficient to entitle the heirs to a patent. This proof must be made by the heirs, or by some one of them, and until that shall have been done, the heirs will not be entitled to a patent. If the heirs of Boring are entitled to the land, they obtain it by purchase and not by descent; for the reason that they get the fee by their own act. There are only two ways of acquiring real property — one by descent, the other by purchase. If a person does not take as heir, he takes by purchase; no matter how he acquires it. (2 Blackstone, 241.) By the proof of the heirs, as provided in the eighth section, and the issue of the patent to them, they acquire in the land a new, inheritable quality which the ancestor did not own. They can incumber, alien, and devise the land. (2 Blackstone, 243.) This new estate, which is by the patent grafted upon the heirs of the ancestor, and which they could not take by descent from him, they must take by purchase, or as grantees. "When proof is made under the eighth section by the heirs, then all the rights of the ancestor, in the land, clogged and hampered as it was in the ancestor’s lifetime, descends to the heirs, together with all the estate in the land, and their title becomes absolute. A new inheritance is grafted upon them, of which they are the root, and not their ancestor. Certainly the heirs get an estate which the ancestor never had; hence they take by purchase and not
The judgment of the court below must be reversed.
. The provision above quoted, was repealed.