59 P. 457 | Or. | 1899
after stating the facts, delivered the opinion of the court.
It is claimed on behalf of the plaintiff that by reason of the settlement of her father, Terence Quinn, and her mother, Mary, upon the land^in question, under section 5 of the donation law, and the subsequent issuance of a patent by the government of the United States conveying the north half of the claim, which includes the lands in controversy, to her mother and her heirs, she became the owner thereof, and that the proceedings in the county and circuit courts to devest her of the title to a portion of the same are void and of no effect, (1) because of fraud, and (2) for want of jurisdiction in the respective courts to render such decrees.
In regard to the allegations charging W. S. Ladd with fraud, it is sufficient to say that they are not supported by any evidence whatever. There is no testimony showing, or tending to show, that he was a party to, or had knowledge at any time of, such alleged fraud. It is true he was not only chargeable with constructive notice of the proceedings in the county and circuit courts, and any defect therein, but he had actual knowledge thereof, because the deed from Meriam to him of September 16, 1869, recited such proceedings, and that the land therein conveyed was the property referred to in the mortgage to Blanchet and in the subsequent proceedings for partition in the circuit court of Multnomah County. But there is no proof of fraud on his part the concealment of which would -toll the statute of limitations. The first question for our consideration, therefore, is whether this suit is barred by the statute.
And in Vance v. Burbank, 101 U. S. 514, it was held that a wife acquired no greater interest in the land than her husband. In that case the husband had been defeated in a contest over a portion of the claim before the land department, and it was contended by the heirs of the wife that she was not bound by the decision. The court, however, held this position unsound, saying: ‘ ‘The
The conclusion is irresistible, from the doctrine of these cases, that at the time of the death of Mrs. Quinn her husband had a bare possessory right to the claim for the purpose of complying with the requirements of the donation law, and that neither of them had an estate of inheritance therein. It is true, these decisions were all made in cases involving the construction of section 4 of the donation law, but in this regard there is no material difference between the provisions of that section and section 5, unless, indeed, as stated by the chief justice in Hall v. Russell, the intention of congress is even more distinctly shown in section 5 than in section 4. He says, in speaking of section 5 : “There the language is ‘that to all white male citizens * * * who shall in all other respects comply with the foregoing section * * * there shall be and hereby is granted,’ etc. This indicates clearly that there was to be no grant except to persons who, by complying with the provisions of the act, had qualified themselves to take.” ¥e conclude, there