, 1860-11-16

J. ii. Bush rs d.. +. Bradford. The evidence
in this case shows clearly that the defendant,
Bradford. settled upon the land now claimed by
him. in July, 1850, while the plaintiff Bush,
claims residence from February, 1851.
We do not consider it necessary to examine
into the intentions Of the defendant in making
the settlement, or the purpose Of the subsequent
residence. The 18th section Of the act Of Sept
29, 1850, requires settlers claiming donations by
virtue Of settlement and cultivation commenced
subsequently to Dec. LIST, 1850, TO make oath
that they are not acting directly or indirectly
as agents for or in the employment Of others in
making such claims, and that they have made
no sale or transfer, or any arrangement or agree
ment for any sale or transfer or alienation Of the
same, or by which the land shall enure to the
benefit Of any other person" This oath is not
required Of parties claiming by virtue Of settle
ment prior to Dec. LIST, 1850, nor do we consider
that It was the intent O the law to interfere vi
any valid sales or contracts prior to that time.
Granting that Bradford bound himself by agree
ment in June, 1850, to hold the claim in question
for g. y. johnson, II is evident that under the
donation he could not have acquired any title for
himself or principal unless by four years resi-
dence and cultivation. II is claimed by the
plaintiff that the defendant could not hold rs o
married man, as his wife did not arrive in the
Territory until 1885, The 4th section Of the
donation act grants to settlers complying with
the provisions Of the law, 800 acres, IL a single
man, and $40 acres if married before the lst OF
December, 1851. The residence and cultivation
may have been completed before marriage, but
the wife acquires the title to 800 acres of land
without residence, because her husband has
complied with the provisions Of the law. Under
the 9th section Of the donation act, the grant is
expressly confirmed to white male settlers, and
awite cannot acquire any title TO donation unless
her husband was married within one year after
arriving in the Territory. The acquisition Of the
title is not in any manner made dependent on
her own acts II is clear that in the cases cited
above, the wife neither acquires title BY residence
or torteits il by non-residence. II the wife must
prove residence, why should she not be compelled
also toprove four years residence and cultivation,
her age, the time Of her arrival in the Territory,
and compliance with all the provisions Of the
iawf In no case which has come to our knOwl.
edge, was the wife ever required to prove up, or
make the oaths required Of the male settler.
Proof OF marriage on the part OF the husband
within the time specified, has been all that has
been required. The instructions Of the commits
Sioner OF the land Office on this point referred to
by the counsel for the plaintiff are contained in
a letter dated April Sd, 1855. The commissioner
states that the decision is given in hypothetical
case, and with great reluctance and that il II
the duty Of the Register and Receiver, under
the 18th section Of the act Of Sept 30, 1850, in
all cases which may actually arise, to make dc.
csion. for themselves, subject to revision by the
commissioner Of the land office. We do not
consider decision in hypothetical case, mnde
under protest. is susceptible of general applica-
ton. %. -, 49,. = ss
The points above mentioned are an which we
consider 1t necessary to notice. aa arl
IL Is our oDinion that u r prnde,rd kho a.