Brazee v. Schofield,
124 U.S. 495 (1888)

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U.S. Supreme Court

Brazee v. Schofield, 124 U.S. 495 (1888)

Brazee v. Schofield

Argued and submitted December 16, 1887

Decided January 30, 1888

124 U.S. 495


In March, 1848, A S and E S, his wife, settled upon a tract of public land in what was then the Territory of Oregon and is now Washington Territory, and from thenceforward continued to reside upon it and cultivated it for four years as required by the Act of September 27, 1850, 9 Stat. 496, c. 76. After completing the required term of cultivation, A S died intestate in January, 1853. In October, 1853, E S, assuming to act under the Amendatory Act of February 14, 1853, filed with the Surveyor General of the Territory proof of the required residence and cultivation by her deceased husband. In 1855 or 1856, the heirs and the widow agreed upon a partition, she taking the east half and they the west half. In 1856, the probate court made partition of the west half among the heirs, and, one of them being a minor, appointed a guardian to represent him, and directed the guardian to sell, by public auction, the tract allotted to his ward in the partition. In accordance therewith, the guardian made such sale and executed and delivered a deed of the property to N S, the purchaser, who entered into possession of the tract and made valuable improvements on it, and from that time on paid the taxes upon it. In May, 1860, the map of the public survey, showing this donation claim, was approved, and in June, 1860, final proof of the settlement and cultivation by A S was made. In Jane, 1862, E S died. In July, 1874, the donation certificate was issued, assigning the west half to A S and the east half to E S, and in 1877, under the provisions of Rev.Stat. § 2448 a patent was issued accordingly, notwithstanding the deaths of the parties. Some years afterwards, the heirs of A S and E S

sold and conveyed to J B their interest in the land so sold to N S. J B thereupon brought this action against N S for possession of it.


(1) That before the Act of February 14, 1853, the settler not being required to give notice in advance of the public survey, A S was not in fault for not having given such notice during his lifetime.

(2) That as the law contemplated that when a joint settlement had been made by two, the benefit of the donation, in case of the death of either, should be secured to the heirs, the notice given by the widow in October, 1853, was sufficient to secure the donation claim in its entirety.

(3) That the heirs of A S and their privies in estate were estopped, as against N S, to deny that A S resided on the tract and cultivated it, and that his widow and children were at the date of his death entitled, under the statute, to the donation land claim.

Page 124 U. S. 496

(4) That the widow and the heirs having agreed to a division among themselves, other persons could not complain of the arrangement if the Surveyor General afterwards conformed to their wishes in this respect.

(5) That the proceedings in the probate court were warranted by the laws of Oregon in force at that time.

(6) That the minor having made no objection to those proceedings for eleven years after coming of age, and not having indicated an intention to disavow the sale until the property had greatly increased in value, his course was equivalent to an express affirmance of the proceedings, even if they were affected with such irregularities as, upon his prompt application after coming of age, would have justified the court in setting them aside.

Hall v. Russell, 101 U. S. 503, distinguished.

This was an action for the possession of real estate. Judgment for defendant. Plaintiff appealed. The case is stated in the opinion of the Court.

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