1. In construing a benevolent statute of the government, made
for the benefit of its own citizens and inviting and encouraging
them to settle on its distant public lands, the words "single
man" and "married man" may, especially if aided by the
context and other parts of the statute, be taken in a generic
sense.
Held accordingly that the fourth section of the Act
of Congress of 27 September, 1850, granting, by way of donation,
lands in Oregon territory to "
every white
settler or
occupant, . . . American half-breed Indians included,"
embraced within the term single
man an unmarried
woman.
2. The fact that the labor of cultivating the land required by
the act was not done by the manual labor of the settler is
unimportant if it was done by her servant or friends for her
benefit and under her claim.
3. Residence in a house divided by a quarter-section line
enables the occupant to claim either quarter in which he may have
made the necessary cultivation.
4. In cases where relief is sought on the ground that the patent
was issued to one person while the right was in another, the decree
should not annul or set aside the patent, but should provide for
transferring the title to the person equitably entitled to it.
An act of Congress of 27 September, 1850, providing for the
survey and for making donations to settlers of public lands in
Oregon -- commonly called the Donation Act -- provides by a part
(here quoted
verbatim) of its fourth section as
follows:
"There shall be, and hereby is, granted to
every white
settler or occupant of the public lands, American half-breed
Indians included, above the age of eighteen years, being a citizen
of the United States or having made a declaration according to law
of his intention to become a citizen or who shall make such
declaration on or before the first day of December, 1851, now
residing in said territory or who shall become a resident on or
before the first day of December, 1850, and who shall have resided
upon and cultivated the same for four consecutive years and shall
otherwise conform to the provisions of this act the quantity of
one-half section, or 320 acres of land, if a single
man,
and if a married
man the quantity of one section, or 640
acres, one-half to
himself and the other half to his
Page 74 U. S. 220
wife, to be held in her own right, and the surveyor
general shall designate the part enuring to the husband and that to
the wife, and enter the same on the records of his office."
The fifth section of the same act is thus:
"That to all white MALE citizens of the United States, or
persons who shall have made a declaration of intention to become
such, above the age of 21 years, emigrating to and settling in said
territory, between 1 December, 1850, and 1 December, 1853, and to
all white MALE
American citizens not hereinbefore provided
for, becoming 21 years of age in said territory, and settling there
between the times last aforesaid, who shall in other respects
comply with the foregoing section and the provisions of this law,
there shall be, and hereby is granted, the quantity of one-quarter
section, or 160 acres of land, if a single
man, or if
married, or if he shall become married within one year from the
time of arriving in said territory, or within one year after
becoming 21 years of age as aforesaid, then the quantity of
one-half section, or 320 acres, one-half to the
husband
and the other half to the
wife, in her own right, to be
designated by the surveyor general as aforesaid,"
&c.
With these provisions in force, Elizabeth Thomas, an aged widow,
went with her son, an unmarried man, to Oregon Territory, and
settled there. They lived in the same house. It stood upon the line
dividing two parcels of land, the line running through the center
of the building. Cultivation was made on both tracts, one being
claimed by the mother, the other by the son. On the 17th of May,
1861, the register and receiver of the proper land office issued a
donation certificate, declaring Mrs. Thomas to have made
the proof which entitled her to a patent for the tract which she
claimed. The son received also a certificate for the adjoining
tract, which he claimed. There was no dispute about that tract.
Mr. Thomas had been a widow for more than twenty years when the
settlement was made under which she received the certificate. The
certificate granted to Mrs. Thomas was subsequently, June 25, 1862,
set aside by the Commissioner
Page 74 U. S. 221
of the Land Office on the ground that she was
not the head
of a family. On appeal to the Secretary of the Interior, the
action of the commissioner was affirmed on the ground that she was
not a settler on the land. In January, 1865 (Mrs. Thomas
being now dead, and the land in possession of one Silver, legal
representative of her son, and only heir, Fenice Caruthers, who
died soon after her), the United States sold the land and granted a
patent for part of it to one Ladd, and for the residue to a certain
Knott. These brought ejectment against Silver in the circuit court
of the United States upon the patent. Silver thereupon filed a bill
in one of the courts of Oregon against them, setting forth the
title of Mrs. Thomas, of her son, and of himself, representing that
the patents were clouds on the true title, and praying an
injunction against the suit at law. The prayer asked further:
"That the said patents may each be declared to be fraudulent,
and as being procured by misrepresentation and fraud, and in favor
of the rights of plaintiff, and that they be, and each of them,
declared
cancelled and set aside, and declared fraudulent
and
void, and that the claims of said defendants, and each
of them, be adjudged fraudulent and
void, and without
authority of law, and that the title of the said premises be
adjudged to be in the estate of Fenice Caruthers, deceased, and
that the same be quieted, and that the possession thereof be
decreed to the plaintiff."
The court in which the bill was filed dismissed it, and on
appeal to the Supreme Court of Oregon the decree was affirmed, that
court holding that the donation certificate was void because Mrs.
Thomas, having been an unmarried
female, was not such a
person as could take lands under the Donation Act. The question
here now was the correctness of the affirmance.
Page 74 U. S. 224
MR. JUSTICE MILLER delivered the opinion of the Court.
The donation certificate granted to Elizabeth Thomas was set
aside by the Commissioner of the Land Office, June 25, 1862, on the
ground that Elizabeth Thomas was not the head of a family. On
appeal to the Secretary of the Interior, the action of the
commissioner was affirmed on the ground that she was not a settler
on the land. The Supreme Court of Oregon, whose judgment we are now
to review, held the certificate void, because she was not such a
person as could take lands under the act, being an unmarried
female.
If for any of these reasons the action of the commissioner can
be sustained, then the judgment of the Supreme Court of Oregon
dismissing plaintiff's a bill must be affirmed. If it cannot, then
the patents issued to defendants after the certificate of Elizabeth
Thomas was wrongfully set aside must enure to the benefit of
plaintiff, representing her equitable title. [
Footnote 1]
Page 74 U. S. 225
It is upon the application of the facts of this case to part of
section four of the act of 1850 that the questions of construction
already mentioned arise.
As there is nothing in this act which requires the settler to be
the head of a family, that question may be dismissed without
further consideration.
In reference to the question of actual settlement and residence
on the land, we have only to refer to the case of
Lindsey v.
Hawes, [
Footnote 2] where
this precise question is raised and where it is said that a person
residing in a house which is bisected by the line dividing two
quarter sections will be held to reside on both and consequently on
either of them, to which he may assert a claim. Nor is any
importance to be attached to the fact that Mrs. Thomas was old and
incapable of the manual labor necessary to cultivating ground. If
it was done for her by hired servants or by her son without
compensation, it is equally available to her. In reference to this
question and to the one next to be considered -- namely the right
of unmarried woman to the benefits of this statute -- we may apply
with added force the language used in
Lindsey v. Hawes
that it concerns a construction of one of the most benevolent
statutes of the government, made for the benefit of its own
citizens, inviting and encouraging them to settle upon its public
lands. In addition to this, it may be said that the section of this
statute which we are now considering was passed for the purpose of
rewarding in a liberal manner a meritorious class of persons who
had taken possession of that country and held it for the United
States under circumstances of great danger and discouragement.
These circumstances and the policy of this act are fully stated in
the case of
Stark v. Starrs, [
Footnote 3] decided at our last term.
Anything, therefore, which savors of narrowness or illiberality
in defining the class, among those residing in the territory in
those early days and partaking of the hardships which the act was
intended to reward who shall be entitled
Page 74 U. S. 226
to its benefits is at variance with the manifest purpose of
Congress.
With these views we approach the last and most difficult
question in the case, namely whether Mrs. Thomas is excluded from
the benefit of this act because she was an unmarried woman.
The affirmation of this proposition is based upon that clause of
the fourth section which, in prescribing the quantity of land to be
given to each actual settler, says it shall be "one-half section,
or three hundred and twenty acres, if a single man, and if a
married man," six hundred and forty acres. We admit the
philological criticism that the words "single man" and "married
man," referring to the conjugal relation of the sexes, do not
ordinarily include females. And no doubt it is on this critical use
of the words that the decision of the Oregon court is mainly
founded.
But conceding to it all the force it may justly claim, we are of
opinion that it does not give the true meaning of the act,
according to the intent of its framers, for the following
reasons:
1. The language of the statute is that there is hereby granted
to "every white settler or occupant of the public lands, above the
age of eighteen years" &c. This is intended to be the
description of the class of persons who may take, and if not
otherwise restricted, will clearly include all women of that age as
well as men.
2. It is only in prescribing the quantity of land to be taken
that the restrictive words are used, and even then the words used
are capable of being construed generically, so as to include both
sexes. In the case of a married man, it is clear that it does
include his wife.
3. The evident intention to give to women as well as men is
shown by the provision that of the six hundred and forty acres
granted to married men, one-half shall go to their wives, and be
set apart to them by the surveyor general, and shall be held in
their own right. Can there be any reason why a married woman, who
has the care and protection
Page 74 U. S. 227
of a husband, and who is incapable of making a separate
settlement and cultivation, shall have land given to her own use,
while the unprotected female above the age of eighteen years who
makes her own settlement and cultivation shall be excluded?
4. But a comparison of the manifest purpose of Congress and the
language used by it, in section four of this statute, with those of
section five, will afford grounds for rejecting the interpretation
claimed by defendants, which are almost conclusive.
The first of these sections applies, as we have already said, to
that meritorious class who were then residing in the territory, or
should become residents by the first of December thereafter. It
extends to persons not citizens of the United States, to persons
only eighteen years old, and it gives to each a half-section of
land. The fifth section makes a donation of half this amount, and
is restricted to citizens of the United States, or those who have
declared their intention to become citizens, and to persons over
twenty-one years of age. But what is most expressive in regard to
the matter under discussion is, that the very first line of that
section, in which the class of donees is described, uses the words
"white
male citizens of the United States."
Now when we reflect on the class of persons intended to be
rewarded in the fourth section, and see that words were used which
included half-breeds, foreigners, infants over eighteen, and which
provided expressly for both sexes when married, and used words
capable of that construction in cases of unmarried persons, and
observe that in the next section, where they intend to be more
restrictive, in reference to quantity of land, to age of donee,
citizenship &c., they use apt words to express this
restriction, and then use the word "white males" in reference to
sex, we are forced to the conclusion that they did not intend, in
section four, the same limitation in regard to sex, which they so
clearly expressed in section five. The contrast in the language
used in regard to the sex of the donees in the two sections, is
sustained throughout by the other contrasts in
Page 74 U. S. 228
age and character of the donees, and in quantity of land
granted.
The certificate of Mrs. Thomas was therefore properly issued by
the register and receiver and conferred upon her the equitable
right to the land in controversy, and the decree of the Supreme
Court of Oregon must be reversed.
But the language of the prayer of this bill for relief, and some
remarks in the brief of counsel, call for comment on the proper
decree to be rendered on the return of the case to that court.
The relief given in this class of cases does not proceed upon
the ground of annulling or setting aside the patent wrongfully
issued. That would leave the title in the United States, and the
plaintiff might be as far from obtaining justice as before. And it
may be well doubted whether the patent can be set aside without the
United States being a party to the suit. The relief granted is
founded on the theory that the title which has passed from the
United States to the defendant, enured in equity to the benefit of
plaintiff; and a court of chancery gives effect to this equity,
according to its forms, in several ways. [
Footnote 4] The most usual mode under the chancery
practice, unaffected by statute, is to compel the defendant, in
person, to convey to plaintiff, or to have such conveyance made in
his name, by a commissioner appointed by the court for that
purpose. In some of the states it is provided by statute that a
decree of the court shall operate as a conveyance where it is so
expressed in the decree, and additional relief may be granted by
giving possession of the land to plaintiff, quieting his title as
against defendants, and enjoining them from asserting theirs.
The prayer for general relief in the bill in this case is
sufficient to justify any or all these modes of relief, and the
case is
Remanded to the Supreme Court of Oregon for that
purpose.
[
Footnote 1]
Lindsey v.
Hawes, 2 Black 554;
Garland v.
Wynn, 20 How. 8;
Minnesota
v. Bachelder, 1 Wall. 109.
[
Footnote 2]
67 U. S. 2 Black
554.
[
Footnote 3]
73 U. S. 6 Wall.
402.
[
Footnote 4]
Jackson v. Lawton, 10 Johnson 24;
Boggs v. Mining
Company, 14 Cal. 363-364.
