After the passage of the Act of July 17, 1854, 10 Stat. 308,
amendatory of the Act of Sept. 27, 1850, 9
id. 496,
commonly known as the Donation Act, a husband and wife who, by
reason of their residence and cultivation, were under the latter
act entitled to a patent from the United States for land in Oregon
could, before receiving such patent, sell and convey the land, so
as to cut off the rights of his or of her children or heirs in case
of his or her death before the patent was actually issued.
Ejectment by Dolph against Barney for certain land in Polk
County, Oregon, on which John Waymire, a married man, settled,
under sec. 4 of the Donation Act of Sept. 27, 1850, 9 Stat. 496,
and which he and Clarissa, his wife, after they had made and filed
in the proper office the requisite final proof of settlement,
continued residence and cultivation, conveyed in fee by a quitclaim
deed, bearing date Dec. 9, 1867, to one Riggs, under whom Dolph
proved title.
Said Clarissa died before the issue of the patent. After its
issue, said John executed a deed for the land to Barney, to whom,
on the same day, Mary, a daughter of said John and Clarissa, also
conveyed her interest in the land.
After Dolph had closed his case, Barney offered in evidence the
deeds so executed to him, but upon Dolph's objection, the court
excluded them, upon the ground that, by the deed to Riggs, said
John and wife, then having full power of alienation, transferred
the whole title to the land, and that no interest therein passed on
her death to said John or said Mary. To this ruling Barney
excepted. There was a verdict for Dolph, and the judgment rendered
thereon by the circuit court for that county having been affirmed
by the supreme court, Barney removed the case here, and assigns for
error that the latter court erred in sustaining the ruling of the
circuit court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
The only question within our jurisdiction presented by this
Page 97 U. S. 653
record is whether, after a husband and wife had perfected their
right to a patent for lands in Oregon under the Donation Act of
Sept. 27, 1850, 9 Stat. 496, and after the amendment of July 17,
1854, 10
id. 306, they could, before receiving the patent,
sell and convey the lands so as to cut off the rights of the
children or heirs of the husband or wife in case of his or her
death before the patent was actually issued.
This depends upon the effect to be given the original act when
construed in connection with the amendment. The original act, after
providing for a grant to the husband and wife of six hundred and
forty acres of land, one-half to the husband and one-half to the
wife in her own right, declared that,
"In all cases where such married persons have complied with the
provisions of this [the] act, so as to entitle them to the grant as
above provided, whether under the late provisional government of
Oregon or since, and 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, duly and properly executed according to the laws
of Oregon,"
and then
"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 shall have
received patent therefor, shall be void."
The amendment of 1854 repealed this prohibition of sales.
The point to be decided is not whether, before the amendment,
such a conveyance could have been made, or whether, if the
conveyance had not been made, the children or heirs of a deceased
husband or wife would take by descent or purchase, or whether the
grant from the United States was one which took effect from the
time of the passage of the act or a subsequent entry and
settlement, but whether, after the amendment, the husband and wife
held by such a title that, before patent but after their right to
one had become absolute, they could sell and convey so as to vest
in the purchaser either a legal or an equitable estate in fee
simple -- legal if the title had already passed out of the United
States by virtue of the act of Congress, and a full compliance with
its provisions;
Page 97 U. S. 654
equitable if the patent was needed to perfect the grant. The
question is one of legislative intent, to be ascertained by
examining the language which Congress has used and applying it to
the subject matter of the legislation.
The reason of the exceptional policy of the United States in
respect to the public lands in Oregon is to be found in the
anomalous condition of the inhabitants of that territory when the
government of the United States exerted positively its jurisdiction
over them. For more than thirty years, under the operation of
treaty stipulations between the two countries, 8 Stat. 249 and 360,
the citizens of the United States and the subjects of Great Britain
had been permitted to occupy jointly the territory afterwards
included in that state. They had no government except such as they
had organized "for the purposes of mutual protection and to secure
peace and prosperity among" themselves. The actual condition of
affairs is graphically described in
Lownsdale v. City of
Portland, Deady 11, by the able and experienced judge of the
District of Oregon, who has been connected with the administration
of justice there for more than a quarter of a century and was
considered by this Court in
Stark v.
Starrs, 6 Wall. 402,
Lamb v.
Davenport, 18 Wall. 307, and
Stark v.
Starr, 94 U. S. 477. As
part of their plan of government, they established a "land law" by
which free males over the age of eighteen years were permitted to
occupy and hold six hundred and forty acres of land, and
regulations were adopted for designating claims and protecting the
occupants in their possession. While not denying to the United
states the ownership of the soil, the occupants to all intents and
purposes used and dealt with the lands they severally claimed as
their own.
Finding this to be the condition of affairs and recognizing the
equitable claims of the inhabitants, Congress, within two years
from the time of the organization of the territorial government,
passed the Donation Act, which was framed so as to conform in a
large degree to the regulations of the old system and to grant to
the original settlers holding under that system the whole or a
considerable portion of the lands they had been occupying and
cultivating. Sec. 4 was evidently intended for the special benefit
of this class, and, stripped of details, in
Page 97 U. S. 655
effect granted to the white settlers then residing in the
territory, over eighteen years of age and citizens of the United
states or intending to become such, a half-section of land if
single or a whole section if married -- one-half to the husband and
one-half to the wife -- provided they had resided upon and
cultivated the land or should do so for four consecutive years and
otherwise conformed to the provisions of the act. Then follows in
this section the provision which has already been cited in respect
to the disposition of the property in case of the death of one of
two married persons after they had complied with the provisions of
the act and become entitled to a patent, but before the patent was
actually received by them. The language used evidently confines
this limitation in its effect to the married persons mentioned in
this section.
Sec. 5 made provision for those coming into the territory and
settling after Dec. 1, 1850, and above the age of twenty-one years.
It granted them, if single, one hundred and sixty acres, and if
married, three hundred and twenty -- one-half to the husband and
one-half to the wife -- upon the same conditions of residence,
cultivation, and conformity to the act specified in sec. 4. Other
sections required the settler, within three months after the survey
of the lands had been made, or, if the survey had been made when
the settlement commenced, within three months after the
commencement of the settlement, to notify the surveyor general of
the precise tract he claimed, and within twelve months to prove to
the satisfaction of the same officer that the settlement and
cultivation required by the act had been commenced, specifying the
time of the commencement. At any time after the expiration of four
years from the date of the settlement, whether made under the laws
of the late provisional government or not, the settler might prove
to the surveyor general the fact of the continued residence and
cultivation required, and that being done, it became the duty of
the surveyor general to issue certificates setting forth the facts
of the case and specifying the land to which the parties were
entitled, and to return the proofs taken to the Commissioner of the
General Land Office, when, if no valid objections were found,
patents were to issue according to the certificate upon the
surrender thereof.
Page 97 U. S. 656
Sec. 8 provided that upon the death of any settler before the
expiration of the required four years' continued possession, all
his rights should descend to his heirs, including the widow, where
one was left, in equal parts, and that proof of compliance with the
conditions of the act up to the time of the death should be
sufficient to entitle them to a patent.
The prohibition of sales, although contained in sec. 4, applied
to all persons entitled to the benefit of the act, and its repeal
was, under the circumstances, equivalent to an express grant of
power to sell. The prohibition was of the sale, before patent, of
the land to which the settler was entitled under the act. The
repeal therefore operated under the circumstances the same as a
grant of power to sell the land even though a patent had not
issued. This, in the absence of any thing to the contrary, implied
the power to convey all the government had parted with.
When the right to a patent once became vested in a settler under
the law, it was equivalent, so far as the government was concerned,
to a patent actually issued. We so decided in
Stark v.
Starrs, 6 Wall. 402. The execution and delivery of
the patent after the right to it is complete are the mere
ministerial acts of the officer charged with that duty. An
authorized sale by a settler, therefore, after his right to a
patent had been fully secured, was, as to the government, a
transfer of the ownership of the land.
We are thus brought to the consideration of the question whether
such a sale by married persons, entitled to the benefit of the
fourth section of the act, would transfer to the purchaser the
interest of the children, heirs, or devisees of a husband or wife
who died after the sale but before the patent was actually
received. This depends upon whether the repeal of the prohibition
of sales was in effect the repeal of the provision in respect to
the child, heir, or devisee in cases where sales were made.
Repeals by implication are not favored, but if there is a
positive and irreconcilable repugnancy between the old law and the
new, the new must stand and the old fall, even though the result is
reached by implication alone. After all, the question is one of
legislative intent, to be ascertained
Page 97 U. S. 657
by an examination of both statutes, the rule being that the two
are to stand, unless the contrary is manifested beyond a doubt.
As has been seen, the limitation is confined to such married
persons as took under the fourth section of the act, where
provision is made for those who, in the language of Judge Deady
(Deady 11), "had built towns, opened and improved farms,
established churches and schools, and laid out highways," and who,
when the United states assumed exclusive governmental control of
the territory, were found "engaged in agriculture, trade, commerce,
and the mechanical arts." These, it may fairly be presumed, were
special objects of the bounty of the government. The prohibition of
sales was undoubtedly intended to protect the United states to some
extent against fraudulent claims and at the same time to place an
obstacle in the way of an improvident disposition of their property
by the settlers under the influence of the new order of things, but
at all times the husband or wife taking under sec. 4 could cut off
a child or heir by will. The prohibition was in respect to sales,
and the power to devise was expressly given this class of
beneficiaries. It is clear, therefore, that the limitation was not
intended altogether for the benefit of children or heirs.
The delay which necessarily attended the delivery of the patents
after settlers had become entitled to them under the law oftentimes
operated with great hardship upon those whom Congress intended to
assist. In view of this, after the expiration of nearly four years
from its enactment, when the government needed no more time for the
detection of frauds and the people had become accustomed to their
change of circumstances, the prohibition of sales was removed,
evidently in the interest of the settlers. After this, confessedly,
all who had perfected their right to a patent for the lands they
had occupied and cultivated for the requisite length of time, other
than the married beneficiaries under sec. 4, could sell and convey
to the purchaser an indefeasible estate, and there certainly does
not seem to be any good reason why these special objects of regard
should be made an exception to this general rule. It was a part of
the original donation system to keep all the donated
Page 97 U. S. 658
lands from sale until the patents issued, but as soon as the
patents were delivered, all conditions were withdrawn and all
restraints removed. When the settler, whether married or single,
became an actual patentee, he could sell and convey in fee. The
land was his own, to dispose of as he chose. All that prevented his
doing so before, after his right to the patent had been perfected,
was the prohibition of sale.
After this prohibition was taken away, the system was radically
changed, and a perfected right to a patent was made as good as the
patent itself for all purposes except the mere convenience of
proving title. A grant by Congress, under these circumstances, of
the right to sell the land must have been intended to authorize
those entitled to patents to convey in the same manner they could
if the patent had been actually delivered. Any provision in the act
transferring the title of the settler, in case of his death before
receiving the patent, to his child, heir, or devisee, is palpably
inconsistent with an unlimited power to sell and convey the land.
The two cannot stand together, and consequently the power of sale,
which was the latest enactment, must prevail. In this connection it
is worthy of remark that the devisee of the settler dying before
patent is as much entitled to take under the law as a child or
heir. Certainly it could never have been the intention of Congress
to allow a settler to defeat a conveyance by a subsequent will. But
if the child or heir could take, so must the devisee.
But there is still another argument in favor of the repeal which
is equally cogent. There cannot be a doubt that the great object of
the law was to invest the early settlers of that territory with
complete ownership of the land they had resided upon and cultivated
while the ownership of the soil was in controversy between the two
sovereign claimants. The authority to sell before patent was an
additional boon granted by the government. The retention of the
original limitation in favor of the children, heirs, and devisees
must necessarily affect materially the value of the title which
could be conveyed. It operated against no one except married
settlers residing in the country on or before Dec. 1, 1850. This
would necessarily include those making their claims by reason of
possession
Page 97 U. S. 659
taken under the provisional government, and it will not for a
moment be presumed that this specially deserving class of settlers
were alone to be encumbered by such a restriction on their
title.
In conclusion, we hold that the conveyance by Waymire and wife
after they had secured the right to a patent but before the patent
had issued passed the fee, or an equitable right to the fee, to
their grantee, and consequently that there was no error in the
court below.
Judgment affirmed.