No. 6643 | Wash. | Jul 15, 1907
Lead Opinion
The appellants brought this action against the State of Washington to recover a tract of land, containing some ten acres, held by the state as a part of its capitol grounds. The appellant Clara E. Sylvester is the
Edmund Sylvester acquired title to the land under the act of Congress of September 27, 1850,'commonly known as the Oregon Donation Act. 9 Ú. S. Stat. at Large, 496. The record shows that he made settlement upon it in 1850, filed his notification of such settlement with the surveyor general of Oregon in February, 1854, made final proof of his settlement and continuous residence on July, 1858, and received patent for the land in May, 1860.
On March 2, 1853, Congress passed an act creating the territory of Washington. The act specifically described the boundaries of the new territory, and provided for it a complete scheme of internal government. As a part of the governing body, it created a legislative assembly, and gave it power at its first session, or as soon thereafter as it should deem expedient “to locate and establish the seat of government for said territory, at such place as [it might] deem eligible; which place, however, shall thereafter be subject to be changed by said legislative assembly”; and the sum of five thousand dollars was appropriated out of the general treasury “and granted to said territory of Washington to be there applied by the governor to the erection of suitable buildings at the seat of government.” 10 U. S. Stat. at Large, 172, et seq. The legislative assembly exercised the power thus granted at its second session. On January 9, 1855, it passed the following act: (Laws 1854-5, p. 5.)
“Sec. 1. Be it enacted by the Legislative Assembly of the Territory of Washington, That the seat of Government of
“Sec. 2. This act to take effect and be in force fifteen days after its passage: Provided, That within that time the present owners or claimants give a deed of release for the above-described ten acres of land to the territory of Washington' without expense to said territory, which shall be deemed satisfactory by a joint committee to be appointed by both branches of the Legislative Assembly to examine and receive the same.”
On January 18, 1855, nine days later, Edmund Sylvester and his wife, Clara E., conveyed to the territory of Washington the lands in the act described, and on January 29, 1855, the territory, by a special act, accepted the deed, authorized it to be deposited in the office of the secretary of the territory, and- directed that the governor take possession of the tract described and “hold possession thereof, for the use and behalf of the Territory of Washington, in accordance with the first section of the act and to which this is a supplement.” Possession of the tract was thereupon taken, which possession has been maintained by the territory and its successor, the state of Washington, from thence until the present time.
After the admission of the territory of Washington into the Union as a state, the legislature passed an act for the location of a capitol building on the land in question. At that time the then attorney general examined into the title of the state to the land, and advised that a deed be procured from the heirs of Edmund Sylvester in order to perfect the state’s legal title. Pursuant to this opinion, after request made of them, the present appellants executed to the state a quitclaim deed to the land, reciting, however, that the deed was made and accepted on the express condition that the tract should be and remain the site for the capitol of the state of Washington, and that in the event of a breach of the foregoing condition, or in the event of the location of the capitol elsewhere than upon such tract, the deed should become null and void. The state, however, did not erect a capitol building upon this site. After spending some sixty odd thousands of dollars in the erection of a foundation for such a building, it abandoned the project, and erected a capitol building in another part of the city of Olympia, wherein all the state officers are now situate. But the state still maintains posses
The foregoing facts are in the main undisputed. • The appellants, however, make some question as to the time the notification to the surveyor general by Edmund Sylvester of his intent to donate the land was filed. They show that a survey of the land claim was made as late as April 22, 1857, and argue that inasmuch as. the notification could not have been given until after the survey, it must have been given at a date later than the date found by the court. This contention is further supported by certificates from the surveyor general of Oregon and the register of the land office at Oregon city, Oregon, to the effect that neither office contains any record of the filing of such a notification. But the state produced a certified copy of the notification from the general land office at Washington. This paper bears on its face -evidence of its genuineness, and shows conclusively that it was given at the date first above stated. It shows, moreover, that the claim had actually been surveyed prior to that time as it contains a description of it by metes and bounds corresponding in detail to the description given of the claim in the patent. The fact that this paper was not found in the offices where it would be expected to be found, docs not detract from its character as evidence. The explanation is perhaps to be found in the fact that-the territory of Washington was cut off from the Oregon territory, between the time of the giving of the notification and the issuance of the patent,' and the confusion arose in making the necessary transcription from the records incident to the creation of a new territory out of an old one. But be this as it may, there was no law requiring that this record be kept in the Oregon land offices, and the general land office at Washington, for its better preservation, might well take possession of it and maintain it as a part of its own files. We conclude, therefore, that the facts are correctly found. The question remaining is, did the court err in its conclusion of law to the effect that the state had title in fee to the land
The first is that the original deed from Edmund Sylvester and wife to the territory of Washington was void for want of a grantee empowered to take title. The argument is that the territory, not being sovereign, had no inherent power to take title to land, and that such a power was not conferred upon it by Congress in the act creating the territory. But without inquiring into the sovereign capacity of the territory to take and hold real property, and conceding that no express authority was conferred on the territory by the organic act, we still think that it had power to acquire and hold land for the purposes of a capitol site. From the quotations heretofore made from the organic act, it will be observed that the Congress especially empowered the legislative assembly of the territory to locate and establish the seat of government for the territory, and made an appropriation for the erection of suitable buildings on the site so selected. The power to locate and establish the seat of government and erect suitable buildings thereon, must have necessarily included the power to acquire and hold such a quantity of land as was required for that purpose. To hold otherwise would be to deny the territory power to carry out the powers expressly conferred, as it is manifest that it could not establish a seat of government and erect suitable buildings for its purposes without acquiring a site upon which to establish the seat of government or erect the buildings. The appellants suggest that the legislative assembly might have acquired by lease sufficient land for its purposes. But this instead of being an argument against the existence of the power to acquire title to the land, is a concession in its favor, as.it would require no greater act of sovereignty for the territory to acquire property for capitol purposes by a deed in fee than it would to acquire the same property by a lease for a definite or indefinite time.
The second contention is that the deed, since it did not run to the successors or heirs of the territory, conveyed to it an estate terminable at the end of its existence, and that in consequence the property reverted to the heirs at law of Edmund Sylvester when the territory was merged-into the state. But the common law rule that the word heirs, or its equivalent, was necessary in a deed in order to convey a fee, had no application when the grant was to the crown. While the individual representing the sovereignty might change, the sovereign itself was immortal by perpetual succession, and on principle, a life estate to an ideal being having a perpetual and uninterrupted existence must be coextensive with a fee or perpetuity, and hence words of succession cannot extend it. For similar reasons the same result followed deeds at common law to corporations aggregate. Jones, Real Property, § 598; Wilcox v. Wheeler, 47 N. H. 488; Asheville Division No. 15 v. Aston, 92 N.C. 578" court="N.C." date_filed="1885-02-05" href="https://app.midpage.ai/document/asheville-division-no-15-v--aston-3667714?utm_source=webapp" opinion_id="3667714">92 N. C. 578. ” So, on similar principles, a deed to the territory did not require the words of succession in order to pass a fee. The deed, while in form to the territory, was in fact to the government, and while the form of■ government changed in the change from a territory to statehood, there was no lapse in the government itself. The government has had an uninterrupted existence.
The third contention is that the deed is void because prohibited by the donation act itself. As originally enacted, the proviso to the fourth section of the act did provide that all contracts by any person for the sale of the land which such person might be entitled to under the act before he received
The deed in question here was executed after Edmund Sylvester had completed a four-years residence upon the claim. As shown by his own affidavits and the affidavits of his witness on which patent was issued, he commenced his residence on the land sometime in 1850, and resided upon it continuously until he made the deed to the territory, on January 18, 1855, a period of over four years. His deed, therefore, was not void for want of title in himself, nor did it violate any rule of public policy.
The appellants cite Vance v. Burbank, 101 U. S. 514, 25 L. Ed. 929, as overruling the earlier case of Barney v. Dolph, supra, but a more careful examination of the case will show that this is not so. The earlier Oregon cases, and some cases in the inferior Federal courts, had laid down the rule that the donation act was a grant in praesenti, the donor taking a present title subject to be defeated by conditions subsequent, and Barney v. Dolph was thought to affirm that principle. The case cited merely holds that this was not a correct con
The fourth contention is, that the trial court erred in excluding parol evidence tending to show that, the first deed was executed upon the condition that the territory would erect and maintain a capitol building upon the land conveyed. But manifestly there was no error in this. No rule of law is more uniformly applied than is the rule that a parol contemporaneous agreement cannot be shown to vary the terms of a written instrument. This rule is applicable here, as a deed is such an agreement as falls within the rule. Devlin, Deeds (2d ed.), § 850a.
The fifth contention is that the second deed, the deed made by the present appellants to the state, governs and determines the status of the parties and the tenure by which the state holds the land in question. Much of the argument under this branch of the case is based on the assumption that the first deed was invalid and insufficient to convey the title of the property to the state, hut since we hold the deed to be valid and sufficient for that purpose, we need not follow the appellants into this branch of their argument. They argue further, however, that the state, having sought for and obtained the second deed, is now estopped from asserting that it holds the land under a different tenure than that expressed in such deed. But we cannot think the conclusion necessarily follows from the conduct of the state. Doubtless the appellants could have made it a condition on giving the second deed, if the state would have consented, that the land should revert to them in case the state should cease to use it as a capitol site, but they did not do this. The remedy reserved for a breach
The sixth is that the original deed is void for want of a sufficient description of the property conveyed. The deed followed the description contained in the act locating the seat of government above quoted, with the exception that it omitted the phrase “town of Olympia” following the words “Main and Union streets.” But the omission did not render the description void. Enough remained to accurately locate the land conveyed, and this is all that is necessary to constitute a sufficient description.
Lastly, the appellants obj ect to the sufficiency of the answer filed on behalf of the state, contending that it contains an admission that the state holds the land in question subject to forfeiture in case it ceases to use it for a capítol site. We do not so read the answer, but if it required that construction it would not alter the appellants’ position.’ The case was tried in the court below as if upon sufficient pleadings, and we must consider it upon the same theory in this court. To do otherwise would be to deny to the respondent the benefit of the statutes relating to amendments.
As we find no error in the record the judgment will stand affirmed.
Hadley, C. J., Mount, and Crow, JJ., concur.
Dissenting Opinion
(dissenting) — I dissent. I think Mrs. Sylvester should have been permitted to give testimony as to what the real consideration was for the grant which she and her husband made to the territory of Washington. It is almost, if not entirely, a justifiable inference from the statutes and deed that this grant was made upon the understanding that this