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 ?