, 1872-04-18
throughout the extent of it; but on
March 10th, 1852, by means of an agree

IlTOUgQOut t0e fcXtcHb VI w. OuU oA
March 10th. 1852. by means of an agree
ment, and with intent to conform to the
provisions of said Act, and obtain the
benefit thereof, they partitioned the
claim between them, so that each there
after was enabled to proceed for himself,
and notify upon apd obtain a donation
of separate parcel of the whole tract.
The Donation act was grant in present..
Each of the settlers. Lownsdale, Coffin
and Chapman, was upon the land at the
date of its passage, and from that time
is deemed to have an estate IN fee simple
in his donation. subject only to be de-
feated by failure on his part to per-
form the subsequent conditions of resi-
dence, cultivation and proof thereof.
An estate in fee simple is the largest
possible estate which man can have,
being an absolute estate in perpetuity.
Plo,oden 557; Shars,oood's Blackstone
Com. 1O6.
The same question arose in the Dis
trict Court of the Third Judicial District
of Washington Territory. Chief Justice
Jacobs presiding, in the case of s. L.
Mastic y. William Crass,reu. We quote
from the opinion as printed in the Port
Townsend Argus of Dec. 8, 1870.
"The right to sell after complying
with the conditions of the Act. would
have flowed almost as legal conse-
quence. but for the restrictive provisc
in section 4, of the original Donation
Law. A present estate, vested under the
language of the Act, subject to be divest
ed by the noncompliance with any of its
provisions.
The opinion of the Supreme Court Of
the State of Oregon in the case of Lee "
Summers, 2 Oregon Rep. 266, is to the
same effect:
Ion the passage of the Donation Law
Summers was settler OH and occupant
of the then public lands known as the
Summers Claim, and he was qualified
to take as donee under section 4 Of
that Act. The Act is in the words Ol
present grant, and actually conveyed tc
him the legal title to the premises
Fremont v. The U. S. II Howard 500.
When Congress grants lands in words OF
present grant, the legal title passes to
the grantee. Wilcox v. jackson, 23 Pc
ters 499; Fletcher v. Peck, 6 Cranch
1913; Green v. Liter. Cranch 244
Strother v. Lucas, IL Peters 454; Ruth
erford v. Green's Heirs, 2 Wheaton 1873.
The cases Just cited show that the title
vests Immediately in the donee, not the
less because the title vests in him con-
ditionally and subject to be defeated by
his failure to comply with the law, nor
because the boundaries are yet to be de-
termined by survey"
The conclusion therefore. from these
authorities, is irresistible, that on April
Sd, 1852. David S. and Lydia A. May
nard each became invested with an es,
estate in fee of an unapportioned hall
part of Donation Claim No. 440, subject
only to be divested by failure on the
part of David. to perform "the condi'
tions of residence, cultivation and
proof thereof" The conditions were
complied with, and the donees are en-
titled to patent.
The estate therefore on the Sd of April
was "legal estate" of as pronounced
dignity as any other estate in fee which
Lydia then possessed, or might have
possessed, derived either from inherit
ance, purchase, gift or grant.
Had she in fact died on Dec. 22d
1852, there is no question but her heirs
would have taken her estate in this
claim. Had there been no Legislative
divorce-no second marriage, no attempt
to substitute Catharine to her property
as well as marital rights, and had she
been left an abandoned, though not di-
vorced wife, for the entire twenty years.
there is no question that Lydia, living
would take one half part, and patent
issue.
II. The ACT OF THE ASSEMBLY OF THI
TERRITORY OF OREGON DID NOT, NOR coULI
NOT, DIvEsT THE ESTATE THUS GRANTED
The power of Territorial Legislature
to grant divorce is very questionable
one. The power of State Legislatures,
even, has been often denied, and late
Text Book Bishop on Marriage and Di.
vorce, sec. no says {" the authorities are
still in such irreconcilable conflict. that
any attempt to harmonize them would
be fiuitless." Congress, however, has
made it bigamy for either party to marry
second time, un' 'ess divorced by the de.
cree of competent Court-12 Stat. at
Large sol and this Act is made spe-
ciAlly applicable to the Territories and
other places over which the United
States have exclusive jurisdiction.
Should it become necessary, there
fore, at my time hereafter. to assert the
right of Lydia A. Maynard in the Courts
of the United States, it will be safe to
proceed upon the theory that no Terrific
rial Assembly can pass an Act severing
the relation of husband and wife.
In Kentucky, in Gaines .. Gaines, 9 B.
Monroe 295. the power of the State Le-
gislature to deprive the wife Of do,oer by
an Act of Divorce, came before the
Court, and Marshall. Chief Justice, in
delivering the opinion says: "Under
these views, and without deciding upon
the effect of Legislative divorces SO far as
they may operate upon the personal re-