Husbands v. Mosier

37 P. 80 | Or. | 1894

Opinion by

Mr. Justice Bean.

1. From the foregoing summary of the complaint it appears that Marden’s application to purchase was made under the act of eighteen hundred and seventy, and that, at the time of the sale to plaintiff, more than ten years had elapsed from the date of his first payment, and no proof of reclamation, and no payment of the remaining eighty per centum had been made as required by the act under which he purchased, nor has he or plaintiff complied with the provisions of any legislative act waiving such default. Under these circumstances the contention for the defendant is that by the terms of the act under which the application was made “the lands reverted to the state,” and were subject to sale and disposition under the act of eighteen hundred and seventy-eight at the time defendant purchased in eighteen hundred and ninety-one. That is to say, the argument of his counsel is that by the terms of the act of eighteen hundred and seventy the time of payment and proof of reclamation are of the essence of the contract between the state and an applicant to purchase swamp lands, and upon a default by the applicant the contract is at an end, and he forfeits his rights thereunder without any legislative or judicial declaration to that effect. That act has been judicially construed as an offer for sale by the state of swamp lands on the terms therein mentioned, and that an acceptance of such offer by a qualified applicant, and a compliance by him with the terms of the act, constituted a contract between him and the state for the sale and purchase of the parcel of land described in the application, “binding on each of them until relieved therefrom by some substantial default of the other not overlooked or excused,” and is protected by the constitution of the United States which declares that “no state shall pass any law impairing the obligation of contracts”: McConnaughy v. Pennoyer, 43 Fed. 196; S. C. 140, U. S. 1, 11 Sup. Ct. 699. It was held in the case cited that the act of eighteen hundred and seventy-eight does not attempt to interfere with, or declare forfeited, the rights of applicants under the law of eighteen hundred and seventy who were not in default at the time of the passage of the act of eighteen hundred and seventy-eight, and that the act of eighteen hundred and eighty-seven, in so far as it attempted to do so, as to applicants not in default, is void, as being obnoxious to the provision of the constitution quoted. The effect of the decision of Judge Deady, as well as that of the Supreme Court of the United States in the case referred to, as we understand it, is that an applicant for the purchase of swamp land under the act of eighteen hundred and seventy has a contract with the state from the time of the filing and acceptance of his application, which, cannot be repudiated by the state so long as he complies with the terms of the act, and that he is entitled to complete his purchase under such act, although in the mean time it may have been repealed.

2. This case, however, does not decide that either the act of eighteen hundred and seventy-eight or eighteen hundred and eighty-seven is void in so far as they declare forfeited applications in which the purchaser or applicant was in default at the time of their passage, nor was the question presented or considered as to the effect of neglect by an applicant to comply with the act of eighteen hundred and seventy in making final payment and proof of reclamation within the time specified. F rom the construction of the act of eighteen hundred and seventy-eight, adopted by the Supreme Court of the United States, it is manifest that it did not affect Marden’s rights, because at the time of its passage he was not in default, as he had previously paid the twenty per centum, and the time in which he was required to make the final payment had not yet elapsed. The inquiry then is whether or not Marden’s subsequent failure to make payment and proof of reclamation within the time required by the act of eighteen hundred and seventy, and plaintiff’s neglect to avail himself of the provisions of the act of eighteen hundred and eighty-seven, had the effect of relieving the state from liability under the contract. We think it cannot be successfully contended that the state lacked power to provide, as one of the terms of the contract for the sale of its swamp land, that time of payment and proof of reclamation should be of the essence of the contract, and that, on a failure by the applicant to comply with such terms, his right to purchase should cease, and his contract be at an end; and this it seems to us is the manifest effect of the act of eighteen hundred and seventy. By that' act the state offered for sale its swamp lands on certain terms and conditions, among which was that the applicant should, within ninety days after the publication of the notice of the map thereof being filed in the county clerk’s office, make the first payment of twenty per centum, and within ten years thereafter reclaim the land, and pay the remainder of the purchase price. And, as a condition precedent to the issuance of a patent, it required that the applicant should prove to the satisfaction of the commissioner that the land had been drained or otherwise made fit for cultivation, and declared in positive terms that at the expiration of ten years from and after the first payment, all swamp lands upon which no such payment and proof of reclamation has been made “shall revert to the state and the money paid therefor shall be forfeited.” From these provisions it is manifest that the legislature intended to provide that all applicants to purchase swamp land, who should fail to comply with the act by making final payment and proof of reclamation within ten years from the time of the first payment, should forfeit their right to purchase, and the land should again become subject to sale and disposition.

3. For the plaintiff it is contended that successful cultivation of the land in grass or cereals for three years dispensed with the proof of reclamation. We are unable to so construe the law, although the question is practically immaterial in this case, because it cannot be claimed that successful cultivation, even if it rendered proof of reclamation unnecessary, would dispense with the necessity of making the final payment, which, by the act, is made a condition precedent to the right of an applicant to obtain title. Before a patent can issue the applicant is required to prove to the satisfaction of the commissioner that the lands have been drained or otherwise rendered fit for cultivation, and also to make his final payment, and the only effect of the clause referred to, it seems to us, is that proof of successful cultivation for three years shall be sufficient evidence of reclamation.

4. Nor do we think the act of eighteen hundred and seventy-eight dispensed with payment and proof of reclamation as required by the act of eighteen hundred and seventy, unless the applicant availed himself of the offer therein contained, by the payment of two dollars and fifty cents per acre prior to January first, eighteen hundred and eighty. The act of eighteen hundred and seventy-eight simply gave an applicant under the act of eighteen hundred and seventy, who was not in default, an option to pay two dollars and fifty cents per acre within a certain time, and obtain a title without proof of reclamation, if he so desired; but did not deprive him of the right to proceed to obtain title under the act of eighteen hundred and seventy, which was a part of his contract, and binding on the state so long as he complied with its terms, although repealed by the legislature. As a consequence, it would seem that, by the terms of the contract between Marden and the state, his right to purchase had ceased, and the land had reverted to the state, freed from his claim, at the time plaintiff purchased from him, and therefore he had no interest in the land which he could sell or convey. But if it be conceded that we are mistaken in this view, and a legislative declaration of forfeiture was necessary, such is the manifest effect of the act of eighteen hundred and eighty-seven, which declared forfeited all swamp or overflowed lands sold under the act of eighteen hundred and seventy which had not been reclaimed and paid for in' accordance with the provisions of the act, except that actual settlers, whether original applicants or purchasers from such original applicants, were permitted to perfect title to a certain quantity of land upon complying with the terms and conditions of the act. But no right is claimed in this case under this saving clause, because it is not pretended or alleged that the terms and conditions of the act were complied with. At the time of the passage of the act of eighteen hundred and eighty-seven the land embraced in Marden’s application, although it had been reclaimed by successful cultivation, had not been paid for in accordance with the provisions of the act of eighteen hundred and seventy, and was therefore declared forfeited, and as plaintiff does not bring himself within the saving clause of the act it necessarily follows that the decree of the court below must be affirmed. Affirmed.