Lamb v. Davenport
APPEAL from the Circuit Court for the District of Oregon; the case being this:
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.
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.'  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 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 fulfil 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 been void. An act of Congress of May 20th, 1836,  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.
Messrs. G. H. Williams and W. L. Hill, for the appellants:
Prior to the 27th of September, 1850, the date of the passage of the Donation law, neither party to this controversy, nor those under whom they claim, except the United States, had any title to, or interest whatever in, the premises in dispute, or in said land claim. This, in effect, was so declared by the Supreme Court of the United States in the case of Lownsdale v. Parrish.  The Supreme Court of Oregon, in Leland v. City of Portland,  says:
'Any acts (of parties) before the 27th of September, 1850, affecting the disposal of lands in Oregon were simply void.'
It follows that no form of conveyance made prior to the passage of the Donation Act could operate to transfer any interest, either legal or equitable, in the land, and that a conveyance, without covenants for further assurance, would be ineffectual for any purpose, except perhaps to transfer the bare occupancy. A purchaser could not have been deceived. He must have known that he could obtain nothing but naked possession, no matter what the deed said.
Again, the fourth section of the Donation Act invalidated all future sales of lands which the act gave, if made before the party got a patent.
The result was that prior to the 27th of September, 1850, parties had no interest whatever in land in Oregon, and that while after that time they could acquire the title thereto, their contracts for the sale thereof, before their title became complete under the provisions of the act, were void. We submit, therefore, that Davenport could derive no benefit from any so-called sale of the four lots in question made subsequent to the aforesaid date, nor claim them on account of any deed made prior to that time; and that all such contracts and deeds must be construed in view of this condition of circumstances.
This invalidates the whole of the tripartite agreement of March 10th, 1852 (the latest written agreement between Lownsdale, Coffin, and Chapman); for it was all made after the passage of the act.
The Donation law was not retrospective in its operation, nor did it vest rights of an equitable character which related back to the date of the settlement. There is nothing in the act that justifies the position that it did.
Descending more to particulars, and as to Davenport. To no one of the four lots did Davenport acquire any title till after the date of the Donation Act, while as to two of them, Nos. 2 and 7, even Coffin's conveyance of them was posterior to the act. The sale to him in the case of each one of the four lots was the sale of lands by a party who was claiming the benefits of the Donation Act, and, to say the least, came within the mischief which the prohibitory clause in question was intended to prevent.
Further. The agreement of March 10th, 1852, is a deed, inter partes; Lownsdale, Coffin, and Chapman. We know of no principle of law which would allow Davenport, a person not a party to the instrument (an instrument under seal, and executed as that evidently was, to settle and adjust the personal individual rights of the parties to it as between themselves), to claim the benefit of its provisions as a matter of legal right. 
Finally. Under the Donation Act, the heirs of Lownsdale, he being dead before the patent issued, took not by descent but by purchase.  They took not through him, but under the act. The land which Congress thus gave them would not have been subject to his debts, nor is it to his contracts. It never vested in him. In Davenport v. Lamb,  the Circuit Court held that under the act the husband did not take as heir to his wife, but as statutory donee, and this view was not denied in this court.
Messrs. J. M. Carlisle and J. D. McPherson, contra.
Mr. Justice MILLER delivered the opinion of the court.
^1 9 Stat. at Large, 496.
^2 5 Stat. at Large, 31.
^3 21 Howard, 293.
^4 2 Oregon, 48; and see Lownsdale v. City of Portland, Deady, 1.
^5 See Ellison v. Ellison, 1 Leading Cases in Equity, 232*.
^6 Fields v. Squires, 1 Deady, 382; Delay v. Chapman, 3 Oregon, 459.
^7 13 Wallace, 431.