3 Or. 103 | Washington Cty. Cir. Ct., O.R. | 1869
By the Co'iirt,
If the decree that the defendant sets up is effective to confer the legal title on the defendant at the present time, the decree is a good defense at law, and it is upon this idea that the plaintiffs ’ counsel claims that the first part of the answer is bad, being an attempt to set up both an equitable and legal defense at the same time. If one have a good defense at law, he cannot be heard to set up ^n equitable defense. It is a sine qua non in an equit
The demurrer was overruled and the plaintiff filed a replication putting in issue much of the new matter alleged in the answer, and stating that said Bicliard White had no authority to bind the other plaintiffs by his alleged abandonment of the premises.
The answer was filed on the 17th of May, 1869. A replication was filed May 19.
At the October term, 1869, the defendant filed an affidavit showing that said S. P. Soule resides in Washington Territory; that in August last the defendant sent to said Soule a blank deed to be executed by Soule for the purpose of conveying to the defendant, in fee, the premises embraced in the mortgage; that on the day of filing the affidavit the de
On the trial the only material question of fact upon which the evidence was conflicting or doubtful, was the date of the decease of Caroline White, the wife of the plaintiff Bichard, and the mother of the other claimants. The evidence establishes the fact that her decease took place on the 25th or 26th day of September, 1850, either one or two days before the passage of the donation act. The evidence shows that Bichard White and his said wife settled upon 640 acres, including the land in controversy, in 1844, and resided upon it and cultivated a portion of it, up to the time of the wife’s death; and that Bichard White, with his children, continued to reside in the same house, situated on the south half of the 640 acres up to 1855 or 1856. Bichard, White filed a notification for himself and his wife’s heirs December 9, 1852, claiming the whole 640 acres. He was afterwards advised that he could not hold more than 820 acres, in consequence of his wife having died before the passage of the donation law; and, if compelled to select, he preferred the south half.
At the land office an indorsement was written on the notification previously filed by him, in the following words :
“To O. B. Gardiner, Surveyor-General of Oregon: Being reduced" to 320 acres, in consequence of the death of my wife before the 27th of September, 1850, I desire to retain the south half of my original claim.
Salem, Nov. 10, 1859.
Biohard White.”
Said Bichard White testified on the trial that the indorsement was. written by the surveyor-general without White’s request, and being'advised by the surveyor-general that it
Soule and his wife settled upon the north half March 27, 1855, filed a notification and settler’s oath May 3], 1855, preliminary proof March 21, 1856, and final proof April 1, 1859. Soule and wife deeded to the defendant, Nov. 17, 1860, one part, and mortgaged the residue, and lot the defendant into possession of the whole June 8, 1858. Soule was notified at the time of his settlement by the plaintiffs that the land was claimed by them. January 3, 1861, an order was made at the land office, that said Soule appear and show cause why a certificate should not issue to Eiehard White and the heirs of Caroline White.
It does not appear that either the defendant or Soule was notified of the order. Proceedings were taken at the land office, upon the notification filed by "White on December 9, 1852, which resulted in a certificate .issued September 22, 1862, to Eiehard White, for the south half of the claim, and to the heirs-at-law of Caroline White, for the premises in controversy, which certificate was followed by a patent, issued September 11, 1865.
The case was argued and submitted for final determination, on the pleadings and proofs.
filed the following opinion:
Before examining what I deem the merits of the case, it is proper to refer to some points that arose in the coarse of the trial.
The deposition of Dr. Barclay was taken, out of court, before the trial. He deposed that Mrs. Caroline White departed this life on the twenty-sixth of September. That he noted the day of her death in his medical day-book, in these words: “Mrs. White died this morning.” The answer was objected to as incompetent and not the best evidence. On cross-examination, he deposed in answer to interrogations, “I have examined the memorandum this morning.” “ Without looking at the memorandum, 1 could have stated the fact, but could not state the day of the month.” “I
The witness presented the book to the plaintiff’s attorney at'the time the deposition was taken.
On re-direct examination, the witness deposed: - “Imade the memorandum on the day of the occurrence. Since examining it, I know that the death occurred on the twenty-sixth of September, 1850.”
The plaintiffs now move to suppress the' deposition, because of tbe witness having looked at, and quoted from, a memorandum tbat is not now produced.
I think tbe motion to suppress tbe deposition should not be sustained. If tbe book bad not been produced, tbe reasons for tbe motion would have been much stronger. Since tbe taking of tbe deposition, tbe production of tbe book is within tbe power of either party; and tbe cross-examiner has bad an opportunity to inspect it. Tbe quotation from tbe book was not competent evidence, but it was not asked for by either party. This parol evidence of tbe contents should be rejected, but there is no good ground for sup-, pressing tbe whole deposition. Tbe fact tbat a witness has refreshed bis recollection by examining a memorandum recently before taking tbe stand, may go to tbe credibility of bis statements, and is a proper matter of cross-examination, but it does not render him incompetent.
Tbe objection to tbe supplementary answer, which tbe defendant has been permitted to file, would be of more weight, if tbe plaintiffs bad shown tbat they bad been misled, or taken by surprise. No objection, tbat tbe previous conveyance from Soule and wife was a mortgage and not an absolute deed, seems to have been made in tbe previous suit, nor on tbe demurrer in this suit, nor until after leave was asked to file tbe supplementary answer. Tbe mortgage on tbe one part of tbe premises, accompanied by delivery of possession, seems to have been treated by all parties as if it was a conveyance in fee. Tbe defendant, from tbe first, bad an unconditional conveyance of one part of tbe subject matter of tbe suit, and as an unconditional conveyance of
As to tlie alleged abandonment. If the plaintiffs ever became entitled to the laud, it is not important whether or not Bichard White once believed that he and the other plaintiffs were not entitled, or whether lie once abandoned the intention of prosecuting their claim; for that would not divest hlui of a title actually acquired, much less would it divest the other plaintiffs. If the plaintiffs were persons entitled to claim a donation under the donation law, tlie legal title vested in them on the passage of the act, and not at a subsequent time. (13 Pet. 499.) If they ever had the legal title, the evidence fails to show that it has been divested by abandonment.
The objections made to tlie mode of proofs and other preliminary steps taken by White, in the land department, are of no force, because the patent proves the regularity xof all preliminary proceedings. Hoofnagle v. Anderson (7 Wheat. 214.)
The case on its merits presents but two or throe questions for consideration:
First. Did the settler, whose wife bad died before the passage of the donation law, and the children of the deceased wife, become entitled to the three hundred and twenty acres known as the wife’s share?
Second. If they did not, and wore persons not authorized to take the donation, is tlie defendant in an attitude to raise the question of disqualification?
Third. Is it competent in this proceeding, to reform the decree rendered in the former suit ?
The first of these questions was substantially determined by the supreme court of the territory of Oregon, in the caso of Ford v. Kennedy, 1 Or. 166. The granting clause of tlie donation act relied upon by the plaiutiifs, is in these words, “And in all cases where such married persons have complied with the provisions of this act, so as to entitle them to the grant, as above provided, whother under the late provisional government of Oregon, or since, and either shall - have died
The facts of the present case differ from those in Ford v. Kennedy, in that the husband, as well as the wife in that case, died before the passage.of the act. But if the principle there announced, is correct, it is fatal to the position here taken by plaintiffs’ counsel, because, unless the law can have a retro-active effect, the donee, being a “single man” on the day the act passed, and not since married, within the period allowed for taking a claim, is limited by the terms of the act to 320 acres.
The soundness of the principle there announced, is attacked by the plaintiffs’ attorney, whose argumént displays great care and research in the examination of the subject. He claims that the donation law, both in spirit and by its terms, recognizes rights acquired under and sanctioned by the provisional government, and that the supreme court fell into an error by not giving sufficient consideration to the expression, “Whether finder the late provisional government or since,” and to the situation and condition of the territory and its inhabitants, at the time of the passage of the act. With that opinion standing as the decision of the supreme court, it would be supererogation for this court to enter into the subject further than to say, that the reasoning of the plaintiffs’ counsel does not present that certainty, and. that clear conviction of error, in the prior adjudication of the point, that warrants a circuit court, in departing so far from the rule, stare decisis, as to disregard what seems to
Tho second question refers to the right oí the defendant to raise the question of the plaintiffs’ disqualification. There is a class of cases where land has been erroneously granted by the United States land department to persons not qualified according to tho terms of the acts of congress, in which third persons claiming the same lands, as having been subsequently acquired, have been deniod the right to plead the disqualification, upon the principle that it is a matter between the patentee and the government only. (Moore v. Wilkinson, 13 Cal. 478; Terry v. Megerle, 24 Ib. 609; Curle v. Burrel, 3 Sneed, 62.) For the purposes of this case, it may be assumed that if the defendant had no right to or interest in the land, when it was granted to the plaintiffs, the defendant cannot raise the question of qualification or disqualification. But if the defendant then had a right to claim it, he may be heard to defend the rigid; and if the plaintiffs were not persons qualified to claim under the donation law, his standing upon this question depends on his relation to the land at the tune it was granted to filio plaintiffs. As has been before remarked, the donation act being in words of present grant, operated to convey the title at the time of its passage to the person possessing the prescribed qualifications and then settled upon the lands; but one not qualified took nothing by his actual settlement and cultivation. Whatever color of title passes to such unqualified claimant by virtue of a decision in his favor, he derives from the action and decision of the agents of the government in the land department. In this case the certificate wrns not issued, and the record discloses no decision made, until September 22, 1862. If the plaintiffs were not within the provisions of the act, they acquired no color of title until that time. The land up to that time was government land,
His settlement being made before the certificate issued, if the certificate was improperly issued to another, the defendant became so connected with the title as to be authorized to attach the certificate and the patent, if one was improperly issued.
The remaining proposition involves a question of practice upon which but few precedents are to be found, arising since the enactment of state codes dispensing with bills of review. By our code, § 377, whatever subject matter could formerly have been presented by any of the various formal chancery bills, may now be presented by an “original suit.” And if the subject matter constitutes a defense, by §§ 72 and 93, it may now be presented by an answer.
Under the equity practice, a party claiming what is claimed by the defendant in this case, would have resorted to the circuitous method of filing a bill of review, or a bill in the nature of a bill of review; (1 Paige, 200; Coop. Eq. PL 73; 2 John. Ch. B. 488;) and of enjoining the action at law until he could be heard in equity.
The former decree was rendered on the twenty-second of December, 1863, and the patent was issued to-the plaintiffs September 11, 1865. If there was not such error or omission, in the rendition or entering of the decree' as would sustain a bill of review, the- defendant being cestvA que trust of the premises, and without any other means of obtaining the legal title or other means of defending himself against tbe acts of his trustees, would have been allowed to file his supplemental bill, setting up the issuing of the patent.
The plaintiffs should have a decree for the parcel of land not embraced in defendant’s deeds, and the defendant should be decreed the residue of the premises. And the decree of December 22, 1863, should be, so reformed as to declare the patentee, to that extent, a trustee for this plaintiff, and the trustee should be compelled to convey.