75 P. 209 | Or. | 1904
after stating the facts in the foregoing terms, delivered the opinion of the court.
The complaint is challenged at the outset as not stating facts sufficient to constitute a cause of suit. This question seems to us to have been made here for the first time, but is now strenuously insisted upon, and commands consideration. The contention centers about the allegation that the sale was made on due application of John F. Miller; it being urged that this is but a conclusion of law, and not an ultimate and issuable fact, and was therefore wholly insufficient to support the decree. It is suggested that, as a good pleading, it should have set .out the qualifications of the applicant to take under the law, and his subsequent compliance with the conditions imposed upon a purchaser from the State of such lands. This involves an examination of the several acts of the legislature of this State bearing upon the subject.
Section 3 of the act of 1870 (Laws 1870, pp. 54, 55), provided for the sale of swamp and overflowed lands at a price not less than one dollar per acre, and that any person over the age of twenty-one years, being a citizen of the United States, or having filed his declaration to become such, might become an applicant to purchase upon filing his application for the tract desired, describing it. It further provided that within ninety days after public notice of the application, approval, and filing of maps and descriptions of the lands selected as swamp and overflowed, 20 per centum of the purchase money should be paid to the commissioner, whose duty it was to issue to him a receipt therefor; the balance to be paid on proof of reclamation. It was further provided by the same section that, in case of adverse applicant's for the same tract or parcel, it should be the duty of the commissioner to sell the same to the legal applicant therefor whose application was first filed. Section 4, p. 56, provided that patent should issue upon
2. Acting in pursuance, therefore, of the duty and re
“ Salem, April 18, 1882.
Received on the within the sum of $488.93, being the balance of the purchase price of the within described lands. By order of the Board of this day.
E. P. McCornack, Clerk of Board.”
The certificate shows a purchase of 611.16 anres, the tract in question being included therewith, and the payment indicated by the receipt, added to the $122.23 shown to have been paid by the certificate of sale, exactly equals the full purchase price of the whole at one dollar per acre. There is not a scintilla of evidence to show that this latter payment was made at any earlier date than that indicated by the receipt. Ten years and more had elapsed, therefore, from the time of the first payment before the last was made. It is not claimed that any reclamation of the land was ever made, so there was an absolute failure to comply with the act of 1870 ; and, without more, we are clear that the land reverted to the State, and the purchaser incurred a forfeiture of the first payment. It was competent for the State to make time of payment and reclamation the essence of the contract (Pennoyer v. McConnaughy, 140 U. S. 1, 11
4. Beyond this, some reliance is had upon section 9 of the act of 1878 as a direct declaration of forfeiture. But its provisions did not affect the case at bar, as the first payment had been made in full accord with the act of 1870 under which the application was filed. The board has itself placed a construction upon that section, which has met with the approval of the Supreme Court of the United States (Pennoyer v. McConnaughy, 140 U. S. 1, 11 Sup. Ct. 699), showing that the intendment was to declare all applications void and of no effect where the applicant had not paid the 20 per centum of the purchase price in accordance with the act of 1870; that is, where such payments had not been made at the time thereby specified. It therefore did not affect the title of the applicant, as in the present case the payment was timely and in accordance with that act.