The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1893-04-04


eve. It was, terminated with his lifs, and that
sne land was not thereafter liable for his debts
or suojscs % sale By his administrat0r, but
ertp of his vile and children, a the direct DO
nses ana grantees Of the United States. In
6snes words they took By purchase and not
The reported decision OF the supreme court Of
snis state In the case OF Roodae Va fouts, 81 Pac
Dep. 4s2 hes syiiabus. indicating that the
b. an administsator Of the deceassd settler. But
tne Iacte recited in the opinion are different In
the opinion there 10 an argument which in some
the complainant IN thls case. the most Of which
70 quotation from che opinion Of chief Justice
1reeae In the caso OF scho6eld VI Braxee,
mssn. Ter Rep. 3o9. And the pith OF il II that
tne act Is grant as well - . Law, and passes
Ute oy its own force upon compliance BY the
settlers with. its provisions; that four years
continued residences ana cultivation IL full
compiisnce: that anal proof il only essential
!oI tae purpose OF obtaining patent and that Q
patent y not conveyance, but mere evidence
o. 2 transfer OF title. The point which the case
decides IL that q warranty deed made By set
Ter Alter four years residence upon the land,
ana before proving up. was valid and effective
TO convey the land The court also fortified il
decision BY finding that the party making the
attack WAS barred from Claiming the land oy an
eetoppel and laches In the case of Schofeld "
brsSse, i24 Q. s. 495, the Judgment of the su-
preme court OF " Washington territory in the same
case WAS af1r1ed. But the opinion OF that
court, By Mr.. Justics Field, gives . construction
20 .ns Donation law quite disssn. from the
30 lar a. the latter seems to support the dictum
in Roeder VI Fouts that the conditions neces-
nary 10 qualify grantee 70 receive title under
the act. ARE residence aud cultivation for the
prescribed time" Mr.. Justice Field shows the
sssontiai quality OF other requirements of the
act ny saying: sit 10 undoubtedly true that the
donation act requires Tor the Completion of
settlers right to patent not only that ne should
reside upon the land and cultivate IL for four
years. bat that he should notify the surveyor
srf - Land rAA l~Sr TtSon tio
OF the Law YVES to give title 20 the parties who mad
resided upon and cultivated the land, and who
were. therefore, in equity and justice better enti
ued 10 the propofty shan others who had Nell
sher resided upon nor cultivated it But it was
also Ot Importance to the government to know
tho precise extent and location Of the land thus
resided upon and cultivated. II was necessary
sosnable the government to ascertain what lands
were Tree from claims of settlers aud subject to
sale or other disposition" The reasons given
In this extract for holding tae requirement ~ TO
notice to be imperative. apply with equal force
to the provision requiring final proof Notice
Of claim can no: be Of greater importance
than deh1ite information OF tue ripenfng of q
mere inchoats right into . perfect and vented
right
mud nothing in Hall w. Russell to give col
orabie support 70 the argument OF complain
ants council except Queare in tho syllabus.
suggested BY the following passage in the 0pin-
ion: whether the fee passed out OF the United
states before the claim was proved up, il 10
not necessary now TO copsider: for the purposes
OF the present suit IL 10 enough to show that the
occupant got no title himself, beyond n mere
right Of possession, until he had completed his
four years of continued residence ana cultiva-
tion think that an answer TO this Queare,
in harmony with all the decisions of the ma
tional courts, Il found in the general principle
that title does not pass from the United States
by conditional grant Of public land so long ~
the patent 10 withheld and any act required OF
the grantee ~ q condition of the grant remains
uncompieted. Railroad Company W. McShane,
q Wall. IA; Shcpiey VA Cowan, 81 U. =, $50;
improvement Company vs. Board OF County
GnvV,v vaD R.nvp In -
Jackson, l6 Pat, ass. the supreme court stated
the rule even broader than l have stated it. In
the opinion OF the court by Mr.. Justice Barbour
it is said: .fhat. with the exception OF . few
cases, nothing but patent passes u perfect and
consummate title. One class Of cases to be ex-
cepted 10 where an act of congress grants land,
r. 10 sometimes done in words OF present grant.
The general rule II what We have stated,
and II apples - wei! 70 exemptions - TO other
purchases OF public lands"
under which. after the death of the settler, his
rights descend to his heirs, 30 that they become
entitled to take a. grantees in his place. Sec.
zion OF the original act provides that in case OF
q settlers death before expiration OF four years
continued possession his heirs may become 80
entitled, upon proof OF comp.isnce with the con-
diti0nS Of the act by the settler up to the time
of his death. And the first section of the amen
datory act of February H. 1858, contains a sim
liar provision. In both sections the right OF
heirs to make proof aud become entitled to .
patent 10 made TO depend upon the death of the
settler before the expiration OF the prescribed
period OF continued possession relteIate,
therefore. that from the fact OF the issuance of
the patent 70 Strickler's heirs, Q presumption
arises that, the officers of the land department
must have found facts TO bring the case within
the provisions of one or the other Of said Sec
tons, and that the heirs of Stricken were con.
sidered BY the land department to b tine quail
fed grantees and entitled to receive said patent.
This presumption has not been overcome by the
facts appearing IN the case nor by the authorl-
ties which have been required 70 review 1t
remains the controlling feature of the case,
and the land which is the subject Of this suit
did not become strickier's property, therefor
NEEDLE with it.
dismissal of this suit without prejudice will
make q record which will b equivalents to .
public declaration that the property 10 men
anced by the claims of the cOmplainants, and
liable to be again brought into litigation wEen-
ever II may be their pleasure to do 20. con-
slider that such disposition OF it would be un.
Just Motion denied.