1. Unless forbidden by some positive law, contracts made by
actual settlers on the public lands concerning their possessory
rights and concerning the title to be acquired in future from the
United States are valid as between the parties to the contract,
though there be at the time no act of Congress by which the title
may be acquired and though the government is under no obligation to
either of the parties in regard to the title.
2. The proviso of the Oregon Donation Act of September 27, 1850,
which forbade the future sale of the settler's interest until a
patent should
Page 85 U. S. 308
issue, so far from invalidating contracts for sale made before
its passage, raises a strong implication in favor of their
validity.
3. Whether the husband or wife who takes as survivor the share
of the deceased under the said Donation Act takes as purchaser or
by inheritance,
held that contracts of the husband
concerning the equitable interest of the part allotted to him, made
before the act was passed, are binding on the title which comes to
his children by reason of a patent issued after the death of both
husband and wife.
Prior to March 30th, 1849, one Lownsdale was in control of what
was then known in Oregon Territory as "a land claim" -- that is to
say, he was in possession, claiming it as owner, of a tract of
land. The tract contained 640 acres. Thinking it a good site for a
town, he laid it out in blocks and lots, which he offered for sale.
Several lots were sold; a town grew upon them, and the City of
Portland now stands upon the "claim."
At the date named, the fee of the whole territory was in the
United States, and, of course, Lownsdale had no patent, nor indeed
any warrant, survey, or title of any kind from the government.
Nevertheless such "claims" were recognized by the immigrants to a
greater or less degree among themselves. The holders of claims sold
them in whole or divided, agreeing to get a patent, and the hope
and expectation of all parties was that the government in time
would acknowledge the validity of what had been done.
On the 30th of March, Lownsdale transferred his claim to one
Coffin, excepting from the transfer the blocks and lots which he
had already sold. Coffin agreed to endeavor to obtain title to the
whole 640 acres from the United States, and both parties agreed
that they would contribute equally to all expenses and divide
equally the proceeds of sales of lots &c. so long as the
agreement should remain in force, and that when it should be
dissolved by consent, Coffin should convey Lownsdale one-half the
land remaining unsold.
In November, 1849, Coffin sold to one Fowler two lots, which
were numbered Nos. 5 and 6, in block 13, and Fowler sold them in
January, 1854, to one Davenport.
Page 85 U. S. 309
On the 13th of December, 1849, Lownsdale and Coffin entered into
an agreement with one Chapman by which, describing themselves as
joint owners of the claim, they sold to him an undivided third part
of it, the town lots and improvements, it being agreed that the
three contracting parties should be equal partners in said property
except as to town lots already sold and should take steps to obtain
title from the United States. They were each to enter upon the
business of selling the lots and account to each other for the
proceeds.
On the 27th of September, 1850, Congress passed what is called
"The Oregon Donation Act." [
Footnote 1] By its fourth section, the act gave, on
certain terms, to every actual settler (if a single man) a certain
amount of land, 320 acres, and if a married one, twice the amount,
in this latter case "one-half to himself and the other half to his
wife, to be held by her in her own right." The act went on to
say:
"And in all cases where . . . either shall have died before
patent issues, the survivor and children or heirs of the deceased
shall be entitled to the share or interest of the deceased in equal
proportions, except where the deceased shall otherwise dispose of
it by testament."
It contained also a proviso, thus:
"
Provided that all future contracts by any person or
persons entitled to the benefit of this act, for the sale of the
land to which he or they may be entitled under this act before he
or they have received a patent therefor, shall be void."
In this state of things, on the 10th of March, 1852, and after
the passage of the act, the said three partners, by deed, reciting
therein that in order to obtain title from the United States, it
was necessary that each should designate the precise and particular
portion of said land claim which each, by agreement with the other,
claimed in order that he might obtain a patent, as a preliminary
measure, entered into certain covenants
with each other under
seal. It was recited
Page 85 U. S. 310
that they had sold lots to each other and to third persons,
obliging themselves to make to the grantees deeds of general
warranty, wherein the grantor should obtain a patent from the
United States, and the said three parties mutually covenanted that
each would fulfill all contracts he had made with each other or
with other persons and also that when a patent should be obtained,
he would make good deeds for all lots patented to him which had
been sold by the said parties jointly or any of them separately,
such deeds to be made to the original grantee or his assigns. They
also covenanted to endeavor to obtain title from the United States
and not to abandon their claim, &c.
On the next day, 11th of March, 1852, Lownsdale made before the
surveyor general, under the Donation Act, his designation of the
part of the land claimed by him.
In January, 1857, Coffin (already mentioned as the person to
whom Lownsdale, in March, 1849, transferred his claim) sold two
other lots, in block 13, Nos. 2 and 7, to a purchaser, who soon
afterwards sold them to Davenport, who had bought, as we have said,
Nos. 5 and 6 in the same block.
Lownsdale was a married man. Accordingly, under the Donation
Act, Mrs. Lownsdale was entitled to 320 acres and Lownsdale himself
to a like amount. Mrs. Lownsdale's half was set aside. It did not
include the four lots sold by Coffin, but Lownsdale's half did.
On the 17th of October, 1860, a patent certificate issued to
Lownsdale. He died May 4th, 1862, his wife having died not long
before him, leaving him and four children surviving. By the laws of
Oregon in such a case, the wife's estate is directed to be divided
between the husband and children "in equal proportions," though
whether this meant in this case that the husband should have
one-half or one-fifth was not so clear.
On the 6th of January, 1865 -- that is to say after Lownsdale's
death -- a patent issued conveying to Lownsdale his half of the
tract, this part including, as already said, the lots 5, 6, 2, and
7 in block 13.
By the common law, of course, such a patent would have
Page 85 U. S. 311
been void. An Act of Congress of May 20, 1836, [
Footnote 2] gave it validity by enacting,
"That in all cases where patents for public lands have been . .
. issued to a person who had died . . . before the date of such
patent, the title to the land designated therein shall enure to and
be vested in the heirs, devisees, or assignees of such deceased
patentee as if the patent had issued to the deceased person during
life."
Whatever Lownsdale's interest was vested, therefore, in his
heirs.
In this state of things, Lamb and others, who were a portion of
his heirs, filed a bill against the residue of them, to have a
partition of these lots, and made Davenport a party as a person in
possession and claiming the whole of them.
In the progress of the suit, Davenport filed a cross-bill in
which, while admitting the legal title to the lots to be in the
plaintiffs and the other heirs of Lownsdale before the court, he
asserted that he was the rightful and equitable owner of them and
prayed for a decree against the heirs of Lownsdale for a conveyance
of the title.
The court decreed as prayed by Davenport, and the complainants
in the original bill brought this appeal.
Page 85 U. S. 313
MR. JUSTICE MILLER delivered the opinion of the Court.
There is no question that at the commencement of the suit the
legal title to the lots was in the heirs of Lownsdale.
The equity which Davenport sets up in his cross-bill arises from
transactions antecedent to the issue of the patent certificate of
Lownsdale, and indeed antecedent to the enactment of the Donation
law by Congress under which Lownsdale's title originated.
It is not necessary to recite in this opinion all of those
transactions. It is sufficient here to say that several years
before that act was passed and before any act of Congress existed
by which title to the land could be acquired, settlement on and
cultivation of a large tract of land, which includes the lots in
controversy, had been made, and a town
Page 85 U. S. 314
laid off into lots, and lots sold, and that these are a part of
the present City of Portland. Of course no legal title vested in
anyone by these proceedings, for that remained in the United States
-- all of which was well known and undisputed. But it was equally
well known that these possessory rights, and improvements placed on
the soil, were by the policy of the government generally protected,
so far at least as to give priority of the right to purchase
whenever the land was offered for sale, and where no special reason
existed to the contrary. And though these rights or claims rested
on no statute or any positive promise, the general recognition of
them in the end by the government and its disposition to protect
the meritorious actual settlers, who were the pioneers of
emigration in the new territories, gave a decided and well
understood value to these claims. They were the subjects of bargain
and sale, and, as among the parties to such contracts, they were
valid. The right of the United States to dispose of her own
property is undisputed, and to make rules by which the lands of the
government may be sold or given away is acknowledged; but, subject
to these well known principles, parties in possession of the soil
might make valid contracts, even concerning the title, predicated
upon the hypothesis that they might thereafter lawfully acquire the
title, except in cases where Congress had imposed restrictions on
such contracts. [
Footnote
3]
Acting on these principles, the tract of land in question,
valuable for a town site, seems to have become the subject of
controversies and of contracts and agreements which culminated in
an amicable arrangement between Lownsdale, Coffin, and Chapman by
which the rights of each were recognized and adjusted among
themselves. The first of these agreements, reduced to writing, was
made before the passage of the Donation law. The last seems to have
been made in consequence of that enactment, and was evidently
designed to give effect to their previous compromise
agreements,
Page 85 U. S. 315
to enable each to acquire under that act the title to the
property according to those agreements and to protect each other
and their vendees when the title should have been so acquired. We
are satisfied that by the true intent and meaning of these
agreements, the equitable right to all the lots in controversy had
been transferred by Lownsdale to Coffin before the passage of the
Donation Act, and that as between Lownsdale, Coffin, and Chapman,
the equitable interest, such as we have described it, of the lots
in controversy was in Coffin or his vendees.
The record shows that this interest or claim, whatever it was,
at the commencement of this suit was vested in Davenport, while the
legal title was in the heirs of Lownsdale.
According to well settled principles of equity often asserted by
this Court, Davenport is entitled to the conveyance of this title
from those heirs unless some exceptional reason is found to the
contrary.
Counsel for appellants urge two propositions as inconsistent
with this claim of right on behalf of Davenport:
1. It is said that the proviso to the fourth section of the
Donation Act renders void the agreements between Lownsdale, Coffin,
and Chapman. The proviso referred to declares that all future
contracts by any person or persons entitled to the benefit of this
act for the sale of the land to which he may be entitled under the
act, before he or they have received a patent therefor, shall be
void. The act was on its face intended to cover settlements already
made, and the careful limitation of this proviso to future
contracts of sale -- that is, sales made after the passage of the
act -- raises a strong implication of the validity of such
contracts made before the passage of the statute. It was well known
that many actual settlers held under such contracts, and while
Congress intended to protect the donee from future improvident
sales, it left contracts already made undisturbed.
But counsel, resting solely on the latest written agreement
between Lownsdale, Coffin, and Chapman, insist that it was void
because made after the Donation Act was passed.
That agreement was only designed to give effect to the
Page 85 U. S. 316
previous contracts on the same subject, and is in accord with
the spirit of the proviso. And if this latter agreement is rejected
as altogether void, it is still apparent that by the contracts made
prior to the Donation Act, the equitable right of Coffin to these
lots is sufficiently established.
The same error is found in the argument that two of the lots in
controversy were sold by Coffin after the passage of that act, and
the sale is therefore void. The answer is that Coffin is not the
donee who takes title under the Act of Congress, but Lownsdale, and
Lownsdale had made a valid agreement by which his interest in them
was transferred to Coffin before that statute was passed.
2. The Donation Act provides that where the settler has a wife,
the quantity of land granted is double that to a single man, and
that one-half of it shall be set apart to the wife by the surveyor
general, and the title to it vests in her, and that if either of
them shall have died before the patent issues, the survivor and
children, or heirs of the deceased, shall be entitled to the share
or interest of the deceased.
Lownsdale's wife died first, and both before the patent issued.
But prior to the death of either, Mrs. Lownsdale's half had been
set apart to her, and did not include the lots now in controversy.
It is said that the title vested in the heirs of Lownsdale under
the peculiar provision of this statute is one of purchase, and not
of inheritance, and that it comes to them directly from the
government, divested of any claim of third parties under
Lownsdale.
This proposition was much discussed in the case of
Davenport
v. Lamb, [
Footnote 4] but
the court did not then find it necessary to decide it, as the only
parties who were entitled to raise the question had not appealed
from the decree of the circuit court.
Nor do we propose to decide now whether the title in the hands
of the children and heirs of Lownsdale would be liable for his
debts, or to what extent that title might be affected by the
contracts of Lownsdale, concerning the land
Page 85 U. S. 317
itself, made
after the passage of the Donation Act or
after his assertion of claim under it. Nor do we decide whether the
interest in the wife's share of the land which came to him by
survivorship would be affected by any contracts of his or hers made
before her death at any time.
But we hold that as to the portion of the land which was
allotted to him by the surveyor general, and the title of which
vests in his heirs by the Act of 1836, without which the patent
would be void, his contract of sale made before the Donation Act
was passed, and while he was the owner of the possessory interest
before described, was a valid contract, intentionally protected by
the Donation Act itself and binding on the title which comes to his
heirs by reason of his death.
These considerations dispose of the case before us, and the
decree of the circuit court is accordingly
Affirmed.
[
Footnote 1]
9 Stat. at Large 496.
[
Footnote 2]
5 Stat. at Large 31.
[
Footnote 3]
Sparrow v.
Strong, 3 Wall. 97;
Myers v.
Croft, 13 Wall. 291;
Davenport
v. Lamb, 13 Wall. 418;
Thredgill
v. Pintard, 12 How. 24.
[
Footnote 4]
80 U. S. 13 Wall.
418, already cited.
