2 Wash. 638 | Wash. | 1891
The opinion of the court was delivered by
— The first question here is, did the deed from Maynard and wife to McAleer convey title to the land in question, or did Maynard and wife have any interest or right in said land which could by them be conveyed? Sec. 4 of the donation act of 1850 (9 U. S, Bt„ at Large, 497) granted to every white settler of the public lands (with the necessary qualifications of age and citzenship), who was then a resident of the Territory of Oregon, or should become a resident therein on or before the 1st day of December, 1850, the quantity of one-half section or 320 acres of land for a single man, and for a married man, or if he should become married within one year from the 1st day of December, 1850, the quantity of one section, or 640 acres of land, one-half to himself and the other half to his wife, to be held by her in her own right] and provided that the surveyor-general should designate the part inuring to the husband and that to the wife. Maynard became a resident of Oregon prior to the 1st day of December, 1850, and was also a married man, being the husband of Lydia A. This relation was still continuing in April, 1852, when he made his settlement on a donation claim, and he and his wife were entitled to 640 acres, one-half to inure to him, and the other to his wife, Lydia A. But about the middle of December, 1852, he was divorced from Lydia A. On January 15, 1853, he was married to Catherine T. By this act of divorcement, the claim of Lydia A. to one-half
"When, therefore, the act was passed divorcing the husband and wife, he had no vested interest in the land, and she could have no interest greater than his. A divorce ends all rights not previously vested. Interests*643 which might vest in time, upon a continuance of the marriage relation, were gone.”
There was only one way by which Catheriúe T. could have become entitled to 320 acres under the donation act, and that was to have married some qualified donation applicant prior to December 1, 1851. This she did not do. We do not think the claim of Catherine T. Maynard was within the letter or the spirit of the law. Sec. 5 of the act of February 14, 1853, which is amendatory of the act of September 27, 1850, in our judgment simply extends the time within which persons shall acquire title under the donation act, but it does not undertake to change the qualifications of the applicant. This, we think, has been the universal and unquestioned construction of this statute.
It is claimed by appellant that the acts of Maynard and his wife were of such a character as to create in them a vested right, although no patent had ever issued to them ; and cites, to sustain this proposition, Barney v. Dolph, 97 U. S. 656; Lytle v. State, 9 How. 333; Stark v. Starrs, 6 Wall. 417; Simmons v. Wagner, 101 U. S. 260. We do not think that the cases cited support the contention. The provision in § 4 of the original donation law, prohibiting the sale of lands until after patent was issued, was repealed July 17, 1854. In Barney v. Dolph, the court decided that the repeal of this provision implied the power to convey all the government had parted with, but that was the extent of the decision. In that case it was not disputed that Way mire and his wife were entitled to patent] but here the testimony is that Catherine T. Maynard never could have secured a patent] that she had no right to a patent, and therefore had nothing to sell. Simmons v. Wagner was a case where the land was sold by the United States, and the purchase money paid. There the purchase money was the main consideration, and it was held that, where the right to a patent has once become vested in a
“And upon such proof being made, the surveyor-general, or other officer appointed by law for that purpose, shall issue certificates, under such rules and regulations as may be prescribed by the commissioner of the general land office, setting forth the facts in the case, and specifying the land to which the parties are entitled. And the said surveyor-general shall return the proof so taken to the office of the commissioner of the general land office - and, if the said commissioner shall find no valid objection thereto, patents shall issue for the land according to the certificates aforesaid, upon the surrender thereof.”
No discretion whatever was given to the surveyor-general, but, on the contrary, it was especially conferred upon the commissioner. And in Stark v. Starrs the court decided, in construing this act, that the right of the claimant to a patent became perfected when the certificate of the surveyor-general and the accompanying proofs were re
Concluding, then, that the Maynards had no vested rights in the land, we come to the consideration of the question whether or not McAleer is entitled to consideration as an. • innocent or bona fide purchaser for value. In support of the affirmative of this proposition, it is urged that the proofs were made in 1856, and that no fault had been found with them up to the time of his purchase, eleven years afterward; that he made the purchase in good faith, and without any knowledge or notice of defect in the title of his grantors, if one existed] that he was an innocent purchaser, and as such entitled to the same protection as if every requirement of the land laws had been complied with by his grantees; and Colorado Coal, etc., Co. v. United States, 123 U. S. 314 (8 Sup. Ct. Rep. 131), and many
“If the proposition as thus laid down in the cases cited is sound in regard to the ordinary contracts of private individuals, how much more should it be observed where the attempt is to annul the grants, the patents, and other solemn evidences of title emanating from the government of the United States under its official seal? In this class of cases the respect due to a patent, the presumptions that all the preceding steps required by the law had been observed before its issue, the immense importance and necessity of the stability of titles depending upon these official instruments, demand that the effort to set them aside, to annul them, or to correct mistakes in them, should only be successful when the allegations on which this is attempted are clearly stated and fully sustained by proof.”
But in the case at bar MeAleer is attempting to set aside this conveyance by the government, a conveyance by patent, an instrument under seal, and the signature of the president of the United States j a proof of title which is commonly accepted and relied upon by the unprofessional mind as conclusive. And what claim does he interpose against it? Not a patent to the land himself, as did Stark in the case cited by appellant of Stark v. Starrs; not a deed from parties whose qualifications under the donation act were unquestioned, and whose rights to a patent to the land, by reason of their fulfillment of the requirements of the law, were conceded by all parties to the controversy, as did JDolph in Barney v. Dolph; but a deed from a party who the land department decided had no rights to the land in controversy, and to land which the department, as we believe rightfully, restored to the public domain. And this deed was, as the record shows, given to- MeAleer more than a year before the original donation certificate issued to his grantors from the local land office. So that MeAleer simply took by that deed what the Maynards had a right to sell; and, as they had no right to sell anything, he took
Concluding, then, that McAleer has no rights under his deed from the Maynards, we come to the consideration of the rights he claims to have acquired by virtue of his homestead application. After his pre-emption claim, which he made in 1874, had been decided against him by the commissioner, and subsequently, on appeal, by the secretary of the interior, he made application to make homestead entry. This was on April 1,1880. The district land office refused the application. "Whatever rights he may have had under that application, by reason of residence or otherwise, we are not called upon to investigate here; for he had the right of appeal, and did not avail himself of it, and that application was virtually abandoned. However, we seriously question if § 3 of the act of May 14, 1880, could be construed to confer any right in McAleer, as against rights of other parties existing at the time of the passage of the act; and are inclined to think that it was the intention of the law not to interfere with any intervening rights, the same as many other provisions of the land laws for the relief of settlers. Prior to McAleePs application, and prior to the passage of the act of May 14, 1880, to wit, on January 8, 1880, Lewis and Hill made application to locate Porterfield warrants on the land in question. This application was rejected for the reason that the land was embraced within the limits of the town of Seattle, but afterwards, upon appeal, it was allowed, and in course of time patents were issued therefor. On the 16th day of December, 1880, the application of the city of Beattie for the land was withdrawn. On that day McAleer made homestead application for the land, and his application was rejected on the ground that such land had been previously applied for by said Lewis and Hill.
“Now, this is appropriation, for that is nothing more nor less than setting apart the thing for some particular use.”
As to the assignability of these warrants, the act for the relief of Porterfield provided for the appropriation of these lands according to the directions contained in his last will and testament; and the will, which is filed as an exhibit in this case, “authorizes and empowers the trustees, in their discretion, to sell or exchange, or otherwise dispose of, all or any part of the property herein given in trust, and the proceeds arising from such sale, exchange, etc., to re-invest in other property.” Construing the act in connection with the will referred to by the act, it appears to us that the intention of congress was to make the warrants assignable. By the ancient common law, things in action, expectancies, possibilities and the like were not assignable, and the assignee thereof acquired no rights which were recognized by a court of law; and says Mr. Pomeroy:
“The court of chancery from an early day rejected this rule as narrow, and even absurd. „ . . Equity has always held that the assignment of a thing in action for a valuable consideration should be enforced.” Pom. Eq. Jur., § 1270.
Again, the act was so construed by the executive department of the government, which was charged with issuing the warrants in form; and the said warrants are on their face issued to William Kinney and Thomas J. Michie, as executors of Robert Porterfield, deceased, or their assignees,
“This warrant may be located upon unoffered land, and is assignable in the manner and form prescribed by the rules and regulations of this office under the act of March 3, 1855.”
The statute having been thus construed by the executive department of the government, and innocent parties having acquired rights under that construction, those rights ought not to be divested, unless it clearly appears that the construction was wrong. The supreme court of the United States, in United States v. Moore, 95 U. S. 763, says:
“The construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration, and ought not to be overruled without cogent reasons. The officers concerned are usually able men, and masters of the subject. Not unfrequently they are the draftsmen of the laws they are afterwards called upon to interpret.”
In support of this doctrine is cited Edwards v. Darby, 12 Wheat. 210; United States v. Bank, 6 Pet. 29, and United States v. Macdaniel, 7 Pet. 1. In Brown v. United States, 113 U. S. 568 (5 Sup. Ct. Rep. 648), it was held that, in case of ambiguity in a statute, contemporaneous •and uniform executive construction is regarded as decisive. To the effect that great weight should be given to such construction, we cite Edwards v. Darby, 12 Wheat. 206 ; Manufacturing Co. v. Ferguson, 113 U. S. 727 (5 Sup. Ct. Rep. 739); United States v. Dickson, 15 Pet. 141; United States v. Gilmore, 8 Wall. 330. In addition, we see no reason why these warrants should be excluded from the provisions of § 1 of the act of March 22, 1852, entitled “An act to make land warrants assignable, and for other purposes.” That act is sweeping in its declarations. It declares “that all warrants ¿for military bounty lands,
We do not think from the language of the statute, that it contemplated restricting these locations to lands only that were subject to private entry; or, in other words, to simply fix upon them a value of $1.25 per acre; and, unless it clearly appears from the act that such was the intention, the executive department having placed the other construction upon the act, and having made them locafcable upon unoffered land upon their face, under the doctrine of the law in the last cases above cited, we do not think we are justified in disturbing rights that have been acquired under this construction of the law. There is no question but that many of the equities in this case are in favor of McAleer and his heirs, and, were we to decide the case upon sympathy, our judgment would probably be different; but, as we view the law, there is no escape from the conclusions we have reached. In the court below damages were awarded in the sum of $750 to appellee for the detention of the premises, without allowing anything for the improvements made. Section 541 provides that, “when permanent improvements have been made upon the property by the defendant, or those under whom he claims, holding under color oí title, adversely to the claim of the plaintiff, in good faith, the value thereof at the time of trial shall be allowed as a set-off against such damages.” Under this statute, appellee
The order of the court is, that the judgment of the court below be so modified, and that with such modification judgment is affirmed.