The Vancouver independent. (Vancouver, W.T. [Wash.]) 1875-1910, 1883-09-20

July term 1883, in the case of j ohm W. Bra
zee vs. Nicholas Schofeld and Mary Scho-
field.
The first step towards deciding this cause
is to determine clearly the nature Of what
takes place between the United States and its
donee, when proceedings are had under the
Oregon Donation Act to establ sh title in the
latter. By the act, there "is granted" to every
man of certain description-or, if he has a
wife. then to him and her, in equal parts, as
shall be set off to them severally by the sur
veyor general-a tract OF land not to exceed
a certain area, on condition that the same
shall be selected in certain way, and in con-
slderatlon that it shall be resided upon and
cultivated a certain length of time. This
grant is subject, however, to the qualification,
that if hus sband and wife have complied with
the provisions of the act, so as to entitle them
to the grant, AMI either Of them, before pat
ent has issued, shall have died, intcstate as to
his or her share, the survivor and children or
heirs of the deceased shall be entitled to the
share or interest of the decendent, in equal
proportions. Throughout the transaction,
the United States holds the position Of seller
and the donee that of purchaser. As soon as
the necessary selection has been made, and
the prescribed residence and cultivation COM
pleted, the transaction is closed, as far as
bargain and sale is concerned. Nothing re-
mains but to assure the vendor or the ven
doris agents, the officers of the Land Office,
that as a matter of fact the grant has become
effective, by meeting hi grantee who has
rendered the proposed consideration, so that
they may furnish the grantee with good and
sufficient evidence of his title. Final proof,
so called, is no part of the consideration
which the grantee gives, but is merely evil
dentiary matter, provided for the purpose of
satisfying the Land Office that the right of
the grantee is perfect and entities him to
patent.
The act, and not the patent, is the instru-
ment which works the transfer of title. Its
language is unmistakably "thcre shall be
and hereby is granted One conveys. the
other evidences title The patent is but Il
formal and solemn piece OF evidence, that all
things essential to be done under the Dona-
| tion Act before passage Of title have been
done, and that therefore, under the act title
has actually passed out from the United
| States into the donee. Act and patent to-
! geher fulfill all the functions OF an ordinary
deed OF conveyance. The two together both
convey and evidence title. The patent merely
evidences and does no uors; bot the act evil
dences to certain extent only, and then, over
and beyond that, do~sA Alone and perfectly
convey. When patent issues IL relates back
| to and combines with the act, as Of the date
when Il; grantee rendering full consdera-
| tion appeared, and SO as 10 form with the act
a perfect imuniment of title Title under the
before patent issues, and the patent issues
by virtue ol title completed, and not other
wise.
In the case at bar, the widow and heirs If
they have acquired any title at all, have got it
under the Donation Act. Their patent so re-
cites, and neither they nor any grantee Of
theirs can, while claiming under that patent,
deny it. They are estopped from saying, to
the prejudice of any grantee of theirs but
that the husband and ancestor, Amos Short,
deceased, duly resided upon and cultivated,
for the prescribed period, the Donation Land
Claim known as his or that by virtue of full
compliance with the essential requirements
of the Donation Act, his widow and children
were at the date of his death, in January, l,5S,
entitled under the act to that Land Claim.
Such being their situation, the great question
of this case Isl Has that title, as to the par
eel of land herein dispute passed, by reason
Of their acts, from them to the appellees?
All provisions OF the Donation Act neces-
sary and precedent to the passage of title,
had been complied with prior to 1855, and
the widow aud children then held among
them, undivided, all disposabe interest in
the land
In that year or the next, as appears from
the evidence, they agreed to. and did as far
AS they could, divide the claim into halves,
an east half and west half, assigning to the
widow the east and to the children the west.
This. of course, was subject TO whatever de.
cision the surveyor general might make in
determining where the division line might
be drawn.
Assuming that the surveyor general would
affirm, or fall in with this division, and that
the west half would by him be set off to
them, the children afterwards. ia 1850, under
took TO procure further division among
themselves Of that half. 10 effect this. those
of them who were OF age applied personally,
and those not OF age by guardian, to the pro
hat far
| connected with that application, partition,
ut least in form, was made or sought to be
made by the court. Considered as n judicial
proceeding IL was doubtless void, except in
SO far AS IL engaged the court in supervising
| and sanctioning the acts Of the participating
guardians. But the formal partition all the
heirs willingly made actual and substantial,
by each, personally or by guardian, spontan-
eously taking possession and dominion In
severalty Of his or her portion, and by mutu-
ally paying and accepting owelty sufficient
fully to equalize all the alotments. Was ii
in fact, then. valid or yoidy
1t is argued by appellant that il wss void
for three reasons: LIST, Because the guardi.
ans acted without authority, and have never
had their action affirmed by their wards since
the latter became of age, 2nd. Because II was
by parole and not by deed, 3rd, Because that
half of the Donation Claim which The heirs
undertook To sub divide had not vet been as
signed to them by the surveyor general.
As to the first objection. the assumption
that the guardians acted without authority is
not borne out by the records They were In
presence of that court which had peculiar
aud general jurisdiction over them; they
were parties 10 the petition for partition
among The children they proceeded, Ia the
petition among the children, on the basis of
the previous partition between the widow
and children; they acted throughout under
the eve Of their supervising court; aud their