Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-07

/ pOssiulef real property 10 which Dri
or occupants have secured a pre
ferred right and in order to protec
that right judicial tribunals hav,
been obliged to so construe tn,
principles of the common law and II
expand its rules to meet the need,
and to satisfy the demands of mod
ern civilization, and as an outgrowtl
OF that doctrine II has been held BY
the courts of last resort in some o.
the Middle and in most of the Great
western states that an equitable es
tate in lands coupled with a right tr
the Immediate possession thereof
was sufficient to maintain an actor
of ejectment.
The doctrine referred to has moi
been carried in Oregon to the extent
noted, but it was early held that an
action of ejectment could be upheld
when based upon title evidenced nv
a nnal certificate issued by the regis
ter and receiver of the local land Of
nee and lawfully held by a plaintiff
tne court saying: And in any case
although the legal title is still in the
united States, We think the donee of
land claim, having obtained a GER
tihcate thereto, or his assignee NAV
maintain this action against one who
shows no color of title" Keith y
Cheeny Ore. 2S5, 2S7.
In RAIDER " Allen 27 Ore. S44. 94S
1t was determined that a receivers
certificate issued for mining lands.
anorded adequate evidence and was
suflcient to support an action of
eJectment, Mr.. Justice Wolverton re-
marking: THE rule is that when the
contract of purchase is completed nv
payment of the purchase money and
the Issuance of the patent certificate
by the authorized agent of the gov
ernment, the purchaser ACQUIRES a
vested right in the land, of which he
cannot be subsequently deprived If
ne has complied with the law prior
10 the entry. 1t then ceases to he n
part of the public domain and is no
longer subject to the laws governing
the disposition of public lands. = :
such an interest is a legal estate in
lands and can be recovered by an ac-
tion of ejectment."
In that case as "a legal estate in
real property" is made a condition
precedent to the enforcement of
right to the possession of the prem-
lses, it was consonant with the doc
Urine announced and necessary to so
construe the provisions of the statute
IL. o. L. Sec. 925) as to make a final
receipt evidence of the transfer of a
legal estate. though no patent to
the land had then been issued by the
ofncers of the United States.
The Interpretation thus given is
not forced for though it is generally
asserted that legal title to real
property can be transferred only by
the execution of sealed instrument
or by some other mode of convey
ance duly evidenced by writing, the
rule is settled in this state that an
adverse possession of land for the
period prescribed by the statute Gre
ates such a legal estate as will
support an action of ejectment. Joy
v. Stump IA Ore. 361; Barrell V. Title
Guarantee Co, 27 Ore. II; Pearson v.
Dryden 2S Ore $50; Neal V. Davis SO
Ore. 423.
In Pierce V. Frace 2 Wash 81. it
was ruled that the holder of a final
receipt for the entry of public lands.
which certificate was in force and un-
cancelled, could maintain an action
OF ejectment to protect his possess
sion, but that until the issuance of a
patent for the real property, the COM
missioner of the general land office
might suspend the entry and order a
re-eXamlnation at which if it ap-
peared that the claimant had not
complied with the requirements of
the law, the entry could be cancelled.
In Hays V. Parker 2 Wash. T. 1913,
in an action of ejectment where the
plaintiff alleged title to the demanded
premises by virtue of a certificate of
purchase issued to him by a receiver
OF public money of the United States.
1t was held that the defendant might
properly plead, by way of induce
ment, a certain state of facts by rea-
son whereof the commissioner of the
general land Office caused such certi-
tcate to be cancelled; that, striking
such matter from the answer, and re-
fusing to permit testimony tending to
prove the fact as explanatory of the
commissioner action, were errone-
GUS; and, that in such an action, If
in the course of the trial it was made
to appear to the court that at the
time of the commencement of the ac-
tion, the claims of the respective par
ties to the land in dispute were being
waged in the department of the inter-
ior of the United States, and were not
fully determined by the executive
branch of the government, it was not
proper for the court to aid either
party by way of affirmative relief but
that the action should have been dis