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About Liberal Republican. (Dallas, Or.) 1872-1??? | View Entire Issue (Dec. 6, 1873)
lie- gubfxal Sfpbliran. pAJJiAy, aATLKDAY DEO. 6. r- 11 a UL11U-1AV13JNPCHT DECISION. Mr. Justice Miller delivered the Ipion of the Court. Tiie bill in this caae was filed in the Circuit Court for the district of Oregon by the present appellants, who claim an interest in the property as heirs of Paniel Lownsdale against , other heirs of liownedale, for a partition of lolg two, five, six, and seven, or hlbck thirteen, of the city of 'Portland, ff he appellee, Davenport, whp was in possesiSn of the lota, and claimed to own itiepe, was made a defendant on that account, In the progress of the suit, Davenport filed a crossbill, in nhici, while Admitting the legal title to the lots to he in the plaintis and the other peirg of Lpwnsdalo be tore tne K8 ,ar?.prteJ te waa rightful and equitable owner of them, kad prayed for si decree against the Wis of Lownsdale for a conveyance of jh titia. The, Court decreed as prJJ by avenport, and plain tills in the original bill bring this appeal. The tract of land which includes the Jots in controversy, was claimed by Lownsdale under the act of Congress called the Oregon Donation Act, passed September 27,- $ "U. 8. Statutes, 496; and a patent certificate issued to v him in his lifetime. But before the o&tent was isaueu, both he and his wire died, and under the general act of Congress, applicable to Buch cases, the title vested in the Lownsdale heirs when the patent was delivered. There is, therefore, no question that at the commencement of the suit the legal title to the lots was in the appellees, the heirs of jjownsdale. The equity which Davenport sets up in his cross. bill, arises from transactions antecedent to the issue of the patent certificate of Lownsdale, and indeed antecedent to the enactment of the donation law b y Congress, under which "Lots a scale's title originated. It Is not necessary to recite in this oplpion all of those transactions It ia su5cient here to say that several years before that act was 'passed, and before any act of Congress existed by which title to the land could be acquired, settlement on and cultivation of a large fcrat of lanjl which includes the lota in ccjrpversy, had been mado, and town laid off Into lots, and lots sold, and that these are a part of the present city of Portland. Of courst, no legal title Tested in any one by these proceedings, fcr that remained in the JJnftp States all of which was well known and undisputed. But it was equally well known that these possessory rights and improvements placed on the soil, were by the policy of the Government generally protected, , so far, at least, as to Rive priority cf the right to purchase whenever the land was offered for sale, and wher so speeia reason existed to the contrary. And though these rights or claims rested on no statute, or any positive promise, the general recogni tion of them in the end by the Government, and iU disposition to ' protect meritorious, and actual setters, who were the pioneers of emigration in the new territoriof, gave a decided and well-understood value to these claims They wero' tjio subject of bargain and csl, and, aa among the parties to suoh eeetraeta they were valid. The right cf fyf United Btate to dispose of hr own property is undisputed, ' and to make rules by which the lans of the Government may be sold or given away is acknowledged ; bu subjeot to these well known principles, parties in possession of the sojj might make valid contracts, even concerning the title, predicated upon the hypothesis that they might thereafter lawfully acquire te title, except in oases whore Oongrei had imposed restrictions on i nob contracts. ( Sparrow vs Strong' 8 Wll, 97 j Myerses Croft, 13 Wall, fc99Davenport vs Lamb, 18 Wall, '418;ThredgiU va Pintard, 12 How., 24.) ' Acting on these principles, the tract cf land in question, valuable as a town site, seems to have become the subject of controversies, and of contracts and agreements, whiub culminated in an amicable arrangemement between Lownsdale, Coffin and Chapman, by which the rights of caoh were recognized and adjusted among themsolves. The first of these agree ments, reduced to writing and found in the record, was mado . before the passage of the donation law. The last seems to have been mado ia conse quence of that enactment, and was evidently designed to give effect to their previous compromise agreements, to enable each to acquire under that act the title to the property, according to those agreements, and to protect each other and their vendees when the title should have been so acquired. We are satisfied that by the true intent and meaning of these agreements the equitable right to all the lots in conroversy had been transferred by Lownsdale to Coffin before the; jpassage of the donation aot, and that, as between Lownsdale, Coffin and Chapman, the equitable interest, suoh as we have described it, of the lots in controversy, was in Coffin or his vendees. The record shows that this interest or claim, whatever it was, at the commencement of this suit was vested in Davenport, while the legal title was in the heirs of Lowstjale. According to well settled principles of equity often asserted by this Court( Davenport is entitled to the conveyance of this title froxn those heirs, unless some exceptional' reason is found to the contrary. Counsel for appellants urge two propqsiiions as inconsistent with this claim of right on behalf of Davenport. 1. It is said that the proviso to the fourth section of the donation act renders void the agreements between Lswnsdale, Coffin and Chapman. The proviso referred to declares that all futuro contracts by any person or persons entitled to the benefit o! thb act for the sale of the land to which he may be entitled under the act before he or they have received a patent therefor, shall be void. Tbe aot was on it faco intended to cover settlements already made, and the careful limitation of the proviso to future contracts of sale, that is, sales made after the passage ot the act, raises a strong implication of the va lidity of such contracts made before the passage of tho statute. It was well jtqewn that many actual settlers held under sueh contracts, and while Congress intended to protect the donee from future improvident sales, it left contracts already made undisturbed. But counsel, resting solely on the latest written agreement between Lownsdale, Coffin and Chapman, in sists that it was void because made after the donation act was passed, That agreement was only designed to give effect to the previous contracts hod the same subject, and is in accord with the spirit of the proviso. And if this latter agreement is rejected as altogether void, it is still apparent that by the contracts made prior to the donation aot, the equitable right of Coffin to these lots is sufficiently cs tablished. ; The same error is found in the argument that two of the lots in controversy were sold by Coffin afjgr the passage of that act, and the sale is therefore, void. The answer la thai Coffin is not the donee who takes title under the act of 0ongress, but Lowns dale, and Lownsdale had mado a valid agreement by whioh his interest in them was transferred to OoSu, before tsi statute waa parsed. 2. The donation act provide that where the settler has a wife, the quantity of land granted is double that to a single man, and that One hajf of it shall' bo set apart to the wife by he Surveyorelieral, and the title to it vests in her, and if either of them shall ave died before the patent issues, the survivor and children, or heirs of the deceased, shall be entitled to the share or, interest of the deceased. Xxmnsdale's wife died rst,and both before the patent issued. But prior to the death ot either, Mrs. Lowns? djiles half had been set apart to her, and did not include the' lots now ia controversy. It is said that the title vested in the heirs of Lownsdale onder the peculiar provision of this statute, is one pf purchase and not of Inhcri. tanoe, and that it coaejlo them direct ' 7 , . . .. t ' ', ly from tho Govern u en divested of any claim of third parties under Lowns dale. -. !'" This proposition was muoh discuss ed in tho case of Davenport vs Lamb, 13 Wallace, 418, already cited, but the court did not then find it necessary to decide it, as the only parties who were entitled to raise the question had not appealed from the decree ot the Circuit Court. Nor do we propose to decide now whether the title in the hand of the ohildren and heirs of Daniel Lownsdale would be liable for his debts, or to what extent that title might be affect ed by the contracts of Lownsdale, concerning tho land itself, mado aflpr the passage of the donation aot, or after his assertion of claim under it. Nor do we decide whether the interest in the wife's share of the land whioh came to him by survivorship, would affected by any contract of.his or hers, made before her death at any time. But wo hold that aa to the portion of the land which was alioted to him by tho SurveyorGeneral, and the title of which vests in his heirs by the act of 1836, 5 U. S. Statutes. 31, without which the patent wcnld be void, his contract of sale made before the donation act was passed, and while he was the owner of the possessory interest before desoribed, was a valid contract, intentionally protected by the donation act itself, and binding on the title which comes to his heirs by rea son of his death. These considerations dispose of the case before us, and the decree of the Circuit Court is accordingly affirmed. LEGAL ADVERTISEMENT. f V SBgRlFF'S SAfjE. BBY VIRTUE OF THE WARRANT appended to the delinquent ux roll of the Ccua'jr of Polk and SUU of Orron for the jtM 1372 to m direct! od commanding ia that of tlto effcfU of the delinquent tax payer tbereoo namd to collect tha taxes duo said C-mntj and 8tat for aid year of 1971 and !872 and mate due retvrn thereof I have this day levied upon and will on MONDAY T1IK BTII DAY OK DECGMfiCH jnT3. keteawn the boor of 10 oloek 4. n, and 4 o'ekxk p. y on eald day. In Irnt of the Court Uoaaa door in Dalla, iJ County and Bute to tbe llghett aod beat bidder for cah in band aelt at public auction the following part and parrel of real estate to aauafy the taxea theron aa hereafter appear, and far tsotl of and upon thia esecutlon to wit. The following to taUtfy the ' tatea tberlon for eighteen hundred and eerenty two the iam being returned aa the property of lien otupeon. All of the donation land claim of Thoi )l Hunsakor and Jane Hunaaker hia wifo binr claim Number (7t)cTeoty one Notification fire thousand and sixty one and being itutd to Township 6 South. Ran go ft and 7 Wet Willamette Merridian Polk County Oregon and containing afx hundred and fvrtjr acres of al of the North East quarter of section twenty fire Township six South, lUngn sercn West and fifty one acres of the Went end of the North West quarter of Section thirty in Township six south, Range West of Willamette merridian Polk County Oregon. Also all of the following described premise to wit beginning at a post on tie Western boundary of Jacob Dorao land claim running thence West (80) eighty Chains thence North (40) forty chain thence East 80 eighty chains thence South f401 fort chains to the place of Beginning containing throe hundred and twonty acres lying infec tion twenty six Township six South, Range eyea West of tbe Willamette Merridian Polk County, Oregon. Amount of tax 166 56 with costs. And the following described lands tbe same being returned by assessor as the property of Harlow Barney. Beginning at a post (7.70) seTen and serentyjone hundredths chains East and (15.60) fifteen and fifty cno hundredth chains South of the North East quarter of section sixteen in Township seven South Range five west of the Willamette ' alerridiao Thence North .60 nai and aixty one hundredths chains. Those West S7.50 eigty sereo and fifty one hundredths chains Thence South 49.15 forty nine and fifteen one hundredths chains j Thence East f 47 forty seven chains Thence South S9.85 thirty nine and eighty five one hundredths chains Thonce East (8QJ eighty chains Thence North 80 elgbty ohaini Thenoo West 88.031 thirty eighty and sixty three one hundredths chains to the plaee of beginning eontalning (913.94) nine hundred and twnlve and , nine four one hundredths acres of land Also the following Premises to wit ; The West half the Dona, tlon Land Estate ot John 11. Nlehlon and wife the same baring been purchased by said Barne ffom E, A. Graham and wife as appear upon' reeord. of said Polk County the same tobe more particularly described tn certificate of sale Amoant of Ux $95 2o with oosta. . Ait the above land to be sold subject to redemption aa the law directs. Dated at Dalle this 6th day of November A i) 1873, ' S.T, Burcii, . BbarUTof Polk County Orgorv Nov8 4w 73. s ' EKItAV HOTipE. TAKEN UP BY THE UNDERSIGNED, living throe miles west of Jependenee, one Bay Maro with small etar In forehei-d with several saddle marks, left hind foot white, iomewniteoarlgfaj forefoot, right hip crooked down, supposed io h, about eight yeare old, Is very breachy. The owner it rKlueted to eall Immdiately, prove property; pay all charges, knd take the proporty. ' " A NELSON, September 20. 1873. ' r . ' Appraised by J. A.' Pempsey Justice of the SALEM ADVERTISEMENTS. M OMlERaSS TBEBIVER. Read and bo Wise ! The UNDEKSrUNBD.ara now and always ready to wait on their Customers, and sell at he LOWEST CASH PRICK TUelrXnrtfe and Well selected ttoclrof QSTfBRAL XOJ3R CUABD1SX3 O o rq.x i s i n Gt DliV GOODS & OLOTIIINU, B30T9 S0ES HATS t GAPS c;ilOi;LRIES& Crockery AND 0TII8R MtTICLKStTQO NU tn'truu to Mention. We neither ad vertise nor (live lUit, but intend U do the S'tuara thing with ' ". jlII & e vexvboclv . rroilucc taken for Good. COME ANDSEE; VOU: YOURSELF, H E B MIA S HUSH Salem, Oregon. M 73, 22 If. T II E S U N. WEEKLY, SKMI-WEEKLY, AND DAILY. THE WEEKLY 8UN is too widely known to require any extended commendation ; but the reasons which bae already gn 1 thousand suhscrlbert, and which will, we hope, give it many thousand moro, are briefly aJ follows; It is a flrstrate newspaper. AU ne ws of the day will be found in it, condensed when un important, at full length when of moment, and always presented in ft clear, intelligible and interesting manner. It is a first-rate family newspaper, full of en tertaining and Instructive reading of every knd, but coutalniog nothing that can offend Ihe most delicate and scrupulous taste. Tt la a first-rate storv nancr. The beet tales and romances of current literature ate earefully elected and legibly printed in lis pages. It ts a first-rate agricultural rrer. Tbe most fresh and instructive articles on agricultural top&s regularly appe ar in this department. It Is an independe nt poll peal paper, belong ing to no party and wearing no collar. It firhts for principle, and. for ike election of the best , mens for office. It especially devotes its energies to the expos ore of the great cor ruptions that now disgrace and weaken our eountrv.and threaten tA undermine republican institutions altogether. It a no fear of knaves, and asks no rat or? irom tneir supporter. It reports the fashions for the ladles and the markets for the men, especially the cattle markets, to which It pays particular attention. Finally, It Is the cheapest paper published. One dollar a year will secure It for wny sub scriber. , It is not necessary to got up a club In order to have THE WEEKLY SUN at thia rate. Any one who sends a single dollar wl get the paper for a year. We have no traveling agents. rniS WEKKsY"lsfJN. Eight pagos, Sfty-slx eolumni. Only fl-OO a year. No iscoanta from this rate. THE SEMI-WKEKLY SUN. Same site aa the dally ton. 92.00 a ycaT. A dis count of SO per cent to Clubs of 10 or over, THE DAIXY SUN. A large four-page newspaper of twenty-eight oolpmns. Daily circulation ovor 120,000. All the news for 2 eenta. Subscription prloe ftOconts a month. or fQ.OO a year. To olubs of IO or over, a Addrew,' "TUia 8U!y Now York City SALEM ADVEUTISEMEOTS. GOOD TSTEW, 6,-. ' ' TOT1II3 PEOfLGOV POLK COUNTY BREYMAN BROS. i SALEM OUEGON; Are Dow epeemga Fine and Selected etock of Goods comprising PR? GOODS OF ALL DESCIPIION3 LADIErf 30ICE DRESS GOODS LADIES. FANC7; GOODS AND ;ladie's, misses, child NEN S HTS. a ALSO QENTS and B0Y3 CLQTUINO OF ALL. DESCRIPTIONS and CRISES to SUIT THE TIMES, also a IiAHQE and well ASSORTED 8T0CK OF CAtti'ETS, BJATTJNG8 OILCLOTH, WINDOW BLINDS and CURTAINS. ALSO GRCERIES. QUEKNWARE ir Jfact any thing pertaining to House Furni fling goods. Having bought our Stock in Han Francisco and New York ia person we can hold 'out Superior inducements to purchasers, CALL aod SEE for yourselves." llrcymaii flro. Mar 8 T3 Zta i SALEM j - JO. BEUNAUD, PllOl HIETOIt Has just received a large invoice of WINE- LIQUOR AHD CIGRS His brands embrace the choicest varietioa. tT Be ort and GIVE HiH A CALL CO.fl .tl E HC IX t HOTEL, OPCRA HOUSE BLOCK, 8 AIjEM ......... .........OR BOON. MRS. A.J. RIELY- PROP fllHIS HOU 8E WILL BE KEPT IN JL First class ordor, and with at ten tiro and i;in servai,U NO CHINESE COOKS EMPLOYED I am prepared furnish good coo m mo" dations to the traveling public, and will us every eadeavor to merit the patronage of the public FREE COACH to the House Regular ardigat ao(ery low rtes: CH UJV I'AlHTllG AS I AM NOW THhOUOH WITH THE most of my work this fall, I propose to paint IUCK3, WAGONS, and BUQ GIES at $10 60 apiece. Now Is the time to bring on your old Hacks and wagons as you will never get them painted cheaper. Shop on the corner, over R, Clarks store. UPSHRIVER. I I L HELM rK I ED T OF F IPractieal "Watch maer. Tims pleoes of every description repaired and guaranteed for one year. Jewelry neatly repaired, work , by mail promptly anded to. Guaranteed clocks and watches for sale. ' DAlitAS ORECO LL KIND S OP WORK, SEWIN Washing a nd Ironing, done by M Burnet on short notion and on reasonable art All order, left attt. se, south weU n;fjf Dallas will ho Imuiedlateiy atteaaod to SALEM ADYEIITISEMEJS. EE lElSM&r, APPLY TO TXXJ3 OLD PH(EMX OF HART FORD 73ecau.se First, It has complied xully with tho Oregq ,tate Law Second. Its contracts in Oregon are backed, .under a re-insuranoe contract, by Jts own and the united assets of tbe Home Ins. vo. of JNew York and the North British and Mercantile Iw. Company of London, aggregating 122,6487 97 , offarng tbe best security of any Fire Insurance Company or Association in the world. . r - Third, It can carry large risks, as its poll-" ciec are re-insured by the above mentioned Comparies, so that the PIKEN1X alone can carry tbe same line that all three companfep would take separately. Fourth, It requires but one set pf proofs In case of loss ; thus giving - the security of three Companies without tbe trouble of dealing with seperate Corporations. r Ou these solid merits, vj$ : Capacity to carry the largest' riks, The amplest possible security, rare simplest adjustment In ease of lat, and he prompt and equitable payment of all jus claims, Jhe Phceulx luaurance Company solicits your patronage. C. A. IXUED, Agent, SALEM, OREGON. Fob 15:73 ly ! c. tiarovaof A. IV. OIL BERT & CO. Dealers In BOOTS and SIIOE3, nov; I ffex to the publio NE W GOODS at NEW ' PRICES. THEIR, STOCK CONSISTS OF 4 full Unp f , , , T k TUPO MISSES' and CHILDKEN'S POY'S and YOUTHS WE AI AU'selected with great'eare fromthe Jbeft 'San Fran eioco and Eastern Manufactures andwi due refferencetothe Oregon Trda. W E ALSO KEEP ON HAND A PULL, supply of Leather eompnsmg toe best French ftrvnii which we offer to th trade 1 reasonable figures. 1 We manufacture HOOT8 and 8tlOEJ to order, of all Styles Material au Woriwtmhtp tinarrHesd. --' 4 gents for the Celebrated StMgsa Sswrjia x. machimk, of which 20,000 more were aol4 in 1872. than any other machine taanfeet red.. Sold at San Francisc prices without ' freight, and on monthly installments to made , paymecteasy. Every machine warranted for fire years . A. IV. GILBERT cV CO, CoiiiRiprclal Street, Salem, Oregon Mar.fi. ly REAL ESTATE. or.o. u: joy J. M. PATTER Self Notaiy Publia Real Eatato D or &, PATTBSSOIV P. ESTATE Mil z .esotiatc Loans. Make Collections AGENTS FOR UNION FIRE INSURANCE CO. of San Francisco; and MUTUAL LIFE INSURANGECQ ef New fork. OPERA HOSUE BLOCK SAL EM ... OHCGOS, OUR RULES: We hay or sell only on commiasion charging a per centage for the amount which the prop erty is sold or traded, for our aervioea, djie when the contract of sale or trade is made. I We will Introduce purchasers to the owners o the property, and leave thm free to make ihe best bargan they can, without any Interference on our part , We pay all advertising expenses, depending, on our commission, when a sale or trade ia made ' We show all property, where within reach- or . give letters of introduction to reliable pajiiea living near who will show it h All letters of kqujfy promptly and fully, an swered .. fj We have many applications fromgood, prompt paying men,who will pay 12 per cent for money, and give dirt class personal or real estate securi ty, and pay allthe'eipenses attending maklutout the papers, Ao. Partioe having money o loA will do well to apply to us btfore placing it else where We charge the lenders nothing f or ou$ serviced ; the borrowers pay na Entire Satfao tion given regarding the securities, i Attention isealled to description of property onaleintbeWanKLT Sta.temaw. Febl5731 It - -' ' ' : ; ' " '; i v . :j JLOUI8 BjifnWBr.r' PA ULYCROUZRICS, mV - i pKlCr ManUfaCtU 1 . . ; . -T $ i ..1 ?