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LAMB V. DAVENPORT, 85 U. S. 307 (1873)

U.S. Supreme Court

Lamb v. Davenport, 85 U.S. 18 Wall. 307 307 (1873)

8 Wall. 308

Lamb v. Davenport

85 U.S. (18 Wall.) 307


1. Unless forbidden by some positive law, contracts made by actual settlers on the public lands concerning their possessory rights and concerning the title to be acquired in future from the United States are valid as between the parties to the contract, though there be at the time no act of Congress by which the title may be acquired and though the government is under no obligation to either of the parties in regard to the title.

2. The proviso of the Oregon Donation Act of September 27, 1850, which forbade the future sale of the settler's interest until a patent should

Page 85 U. S. 308

issue, so far from invalidating contracts for sale made before its passage, raises a strong implication in favor of their validity.

3. Whether the husband or wife who takes as survivor the share of the deceased under the said Donation Act takes as purchaser or by inheritance, held that contracts of the husband concerning the equitable interest of the part allotted to him, made before the act was passed, are binding on the title which comes to his children by reason of a patent issued after the death of both husband and wife.

Prior to March 30th, 1849, one Lownsdale was in control of what was then known in Oregon Territory as "a land claim" -- that is to say, he was in possession, claiming it as owner, of a tract of land. The tract contained 640 acres. Thinking it a good site for a town, he laid it out in blocks and lots, which he offered for sale. Several lots were sold; a town grew upon them, and the City of Portland now stands upon the "claim."

At the date named, the fee of the whole territory was in the United States, and, of course, Lownsdale had no patent, nor indeed any warrant, survey, or title of any kind from the government. Nevertheless such "claims" were recognized by the immigrants to a greater or less degree among themselves. The holders of claims sold them in whole or divided, agreeing to get a patent, and the hope and expectation of all parties was that the government in time would acknowledge the validity of what had been done.

On the 30th of March, Lownsdale transferred his claim to one Coffin, excepting from the transfer the blocks and lots which he had already sold. Coffin agreed to endeavor to obtain title to the whole 640 acres from the United States, and both parties agreed that they would contribute equally to all expenses and divide equally the proceeds of sales of lots &c. so long as the agreement should remain in force, and that when it should be dissolved by consent, Coffin should convey Lownsdale one-half the land remaining unsold.

In November, 1849, Coffin sold to one Fowler two lots, which were numbered Nos. 5 and 6, in block 13, and Fowler sold them in January, 1854, to one Davenport.

Page 85 U. S. 309

On the 13th of December, 1849, Lownsdale and Coffin entered into an agreement with one Chapman by which, describing themselves as joint owners of the claim, they sold to him an undivided third part of it, the town lots and improvements, it being agreed that the three contracting parties should be equal partners in said property except as to town lots already sold and should take steps to obtain title from the United States. They were each to enter upon the business of selling the lots and account to each other for the proceeds.

On the 27th of September, 1850, Congress passed what is called "The Oregon Donation Act." [Footnote 1] By its fourth section, the act gave, on certain terms, to every actual settler (if a single man) a certain amount of land, 320 acres, and if a married one, twice the amount, in this latter case "one-half to himself and the other half to his wife, to be held by her in her own right." The act went on to say:

"And in all cases where . . . either shall have died before patent issues, the survivor and children or heirs of the deceased shall be entitled to the share or interest of the deceased in equal proportions, except where the deceased shall otherwise dispose of it by testament."

It contained also a proviso, thus:

"Provided that all future contracts by any person or persons entitled to the benefit of this act, for the sale of the land to which he or they may be entitled under this act before he or they have received a patent therefor, shall be void."

In this state of things, on the 10th of March, 1852, and after the passage of the act, the said three partners, by deed, reciting therein that in order to obtain title from the United States, it was necessary that each should designate the precise and particular portion of said land claim which each, by agreement with the other, claimed in order that he might obtain a patent, as a preliminary measure, entered into certain covenants with each other under seal. It was recited

Page 85 U. S. 310

that they had sold lots to each other and to third persons, obliging themselves to make to the grantees deeds of general warranty, wherein the grantor should obtain a patent from the United States, and the said three parties mutually covenanted that each would fulfill all contracts he had made with each other or with other persons and also that when a patent should be obtained, he would make good deeds for all lots patented to him which had been sold by the said parties jointly or any of them separately, such deeds to be made to the original grantee or his assigns. They also covenanted to endeavor to obtain title from the United States and not to abandon their claim, &c.

On the next day, 11th of March, 1852, Lownsdale made before the surveyor general, under the Donation Act, his designation of the part of the land claimed by him.

In January, 1857, Coffin (already mentioned as the person to whom Lownsdale, in March, 1849, transferred his claim) sold two other lots, in block 13, Nos. 2 and 7, to a purchaser, who soon afterwards sold them to Davenport, who had bought, as we have said, Nos. 5 and 6 in the same block.

Lownsdale was a married man. Accordingly, under the Donation Act, Mrs. Lownsdale was entitled to 320 acres and Lownsdale himself to a like amount. Mrs. Lownsdale's half was set aside. It did not include the four lots sold by Coffin, but Lownsdale's half did.

On the 17th of October, 1860, a patent certificate issued to Lownsdale. He died May 4th, 1862, his wife having died not long before him, leaving him and four children surviving. By the laws of Oregon in such a case, the wife's estate is directed to be divided between the husband and children "in equal proportions," though whether this meant in this case that the husband should have one-half or one-fifth was not so clear.

On the 6th of January, 1865 -- that is to say after Lownsdale's death -- a patent issued conveying to Lownsdale his half of the tract, this part including, as already said, the lots 5, 6, 2, and 7 in block 13.

By the common law, of course, such a patent would have

Page 85 U. S. 311

been void. An Act of Congress of May 20, 1836, [Footnote 2] gave it validity by enacting,

"That in all cases where patents for public lands have been . . . issued to a person who had died . . . before the date of such patent, the title to the land designated therein shall enure to and be vested in the heirs, devisees, or assignees of such deceased patentee as if the patent had issued to the deceased person during life."

Whatever Lownsdale's interest was vested, therefore, in his heirs.

In this state of things, Lamb and others, who were a portion of his heirs, filed a bill against the residue of them, to have a partition of these lots, and made Davenport a party as a person in possession and claiming the whole of them.

In the progress of the suit, Davenport filed a cross-bill in which, while admitting the legal title to the lots to be in the plaintiffs and the other heirs of Lownsdale before the court, he asserted that he was the rightful and equitable owner of them and prayed for a decree against the heirs of Lownsdale for a conveyance of the title.

The court decreed as prayed by Davenport, and the complainants in the original bill brought this appeal.

Page 85 U. S. 313

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