Love v. Love

8 Or. 23 | Or. | 1879

By the Court,

Boise, J.:

It appears from the admitted facts in this case that the respondent was the wife of Hugh Love, who with her, in 1852, took a land claim in Lane county, in this state; that they resided on and cultivated the same until the death of Hugh Love, in 1861; that at the time of the death of Hugh Love, final proof had not been made so as to entitle said Hugh Love and wife to a patent from the government, although at that time the residence and cultivation required by section 4 of the act of the twenty-seventh of September, 1856 (called the donation law), had been completed. Afterwards Mary Love, the respondent, made the necessary proof, and in 1866 the patent ivas duly issued. At the time of his death Hugh Love left surviving him two children and his widow, Mary Love. Afterwards Mary Love purchased the interest of one of the children, Hannah Browning, and received a deed for her interest in said south half of said donation land claim, which south half was set off to the heirs of said Hugh Love.

This being a suit for a partition of this land, it is incumbent on the court first to determine who are the owners thereof. (Statutes, p. 199, sec. 425.) The first question to be determined is: Who, under the facts as set forth, are the owners of said south half ? Section 4 of the donation law provides that ‘ ‘ in all cases where married persons settling under the provisions of said section have complied with the provisions of the act so as to entitle them to the grant, and either shall have died before patent issues, the survivor and children or heirs of the deceased shall be entitled to the share or interest of the deceased in equal proportions, except in case of a will. Hugh Love and wife, at the time of his death, had completed the four years’ residence required by the act. But in order to entitle them to a patent it was necessary, as provided in section 6 of said act, that they should make proof of the fact of four years’ residence and cultivation required by said act. This not being done, they were not entitled to a patent. Afterwards the widow made the proof and became entitled to one half of the claim, and of one third of the other half, as no patent had issued or could issue until the proof was made. We think the rule is that the land, on the death of a settler before he is entitled to a patent, by reason of not having fully performed the residence and cultivation and made the proofs, descends to the widow and children, as heirs, in equal proportions. Eor a patent will not relate back so as to bar the right of the widow to hold as survivor, any further than to the time when the patentees had performed all the conditions precedent, so as to entitle them to it, which conditions required proof of the facts of residence and cultivation in addition to the residence and cultivation themselves. The amendment to the land law of July 17, 1854, which repealed the proviso of said fourth section “that all future contracts by any person or persons entitled to the benefit of this act for the sale of the land to which he or she may be entitled under this act, before he or they have received a patent therefor, shall be void,” we think so far modified the rights of parties holding under said section as to subject the land to the local laws of the territory, and cause them to descend under such laws where the parties had in all respects complied with the law so as to entitle them to a patent. That is, that a patent when issued relates back to the time when it should have issued; that is, to the time when full and satisfactory proof had been made; and that from that time the land would descend as provided by our statute of descent. In Dolph v. Barney, recently decided in the United States supreme court, it is held that the amendment of July 17, 1854, has modified the donation law in this behalf. In the case before us the final proof was not made until after the death of Hugh Love. Mary Love took by survivorship one third of said south half of said land. Then having purchased one third from Mrs. Browning, she would own the fee in two thirds of the land, and her right of dower in that third would be merged as well as in the third coming by survivorship.

The only remaining question is whether Mary Love is entitled to dower in the remaining one third of the land claimed by the appellant, Charles Love. This must be determined by the construction of the statute. Page 584, section 1, provides, “That the widow of every deceased person shall be entitled to dower, or the use during her natural life of one third part of all the lands whereof her husband was seised of an estate of inheritance at any time during the marriage, unless she is lawfully barred thereof.” It has been held by this court, in the case of Dolph v. Barney, that a grant to a settler under the donation act is a grant in prcesenti of an estate in fee, and this holding was affirmed in the same case by the supreme court of the United States. So the question is settled that one holding under the donation law became, from the time of filing his notification in the land office, seised of an estate of inheritance, which is an estate to which dower attaches, under the provisions of the statute. That this estate was subject to be defeated by the failure of the settler to comply with the conditions of the grant, did not prevent the right of dower from attaching to it, for until such failure, it was subject to be possessed and enjoyed in the same manner as though there were no conditions to be performed. It has been decided in this court (McKay v. Freeman, 6 Or. 449) that where a donation claimant, under the fourth section of the act, died before making final proof, but after four years’ residence and cultivation, his widow was entitled to dower in his half of the claim, and the decision in that case is decisive of this, as far as the question of dower is concerned.

The questions above discussed embrace all the points necessary to be considered in this case, and the decree of the circuit court will be affirmedjvith costs.