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and of all British subjects who may be already in the occupation of land or other property lawfully acquired wihin the said territory, shall be respected”.
At the date of this treaty there were some thousands of Americrn citizens and Britih subjects settled in the Oregon territory south of the 49th paralle under and by virtue of the third article of the convention of October 20, 1818, commonly and properly called the treaty of "joint occupation,” which, in effect provided that the country should be free and open to the citizens and subjects" of the two governments until otherwise provided. (U. S. Pub. Treat. 299).
The occupation of the territory by these citizens and subjects was regulated by the provisional government-an authority created and sustained by bothduring this period. As a rule each male adult citizen and subject was allowed to occupy anal possess 640 acres of land so long as he improved and cultivated the same. The settler might abandon or dispose of his location and take up another ; but in case of his death his possession did not descend or pass to his children or relatives, bnt the "claim” together with the improvements thereon was disposed of by the administrator as personal property.
This was the possessory right” which the United States in the future appropriation or disposition of the soil undertook to respect. As a just nation, the obligation to do this was binding upon her independeut of the treaty stipu. lation. (Soulard vs. U. S. 4 Pet., 512 : Delassus vs. U. S., 9 Pet., 133; Mitchel vs. U. S. Id., 734 ; U. S. vs. Moreno, 1 Wall., 404.)
Under the provisional government the possessory right of Gervais would have terminated with his death, and his widow and children would not have succeeded him therein, for there was no transmission of possession or right from one occupant to another, but each settler "took up” his "claim," so to speak, de novo. If a settler came lawfully into the occupation of land once possessed by another he did not do so as the successor in interest of such other, but the one, for a consideration or any other cause abandoned the location, and the other took it up as thongh the foot of man had never been upon it.” Lownsdale vs. Portland, I Deady, 14.
And if this were otherwise the widow and children of Gervais could not have succeeded to his possession, for they, because of the sex of the one and the non-age of the others, were incapable of "holding a claim;" but the value of thc "claim" and improvements would have been distributed among them by the intervention of an administrator and sale of the same.
Did the third article of the treaty of 1846, enhance this possessory right, or increase the quantity of the occupants' interest or the duration or time of its enjoyment? Does it contain a grant of some interest in or right to the posses. ion of the soil, or is it merely a promise by the United States to respect an existing right, whatever that might be ?
On the one hand, it is hardly probable that Great Britain, while conceding 80 much as she did to the United States by that treaty, would also surrender her subjects, who had settled here upon the faith cf her claim to the country, without taking some snfficient security or stipulation as to their possessions, upon which many of them had spent years of labor and care to make permanent homes for themselves and families. The possessory rights of the Hudson's Bay Company provided for in the same article were of no higher character and hardly as meritorious as those of these British subjects. Yet the two governments, by the convention of July 1st 1863 (U. S. Pub. Treat., 346), declared that it was desirable that all questions concerning the possessory rights” of said 'company should be settled by the transfer of the same to the government of the United States for an adequate money consideration, and provided for an arbitration to ascertain the value thereof, upon which $450, 000 was awarded to the company.
Yet the language used in the trcaty-possessory rights shall be respecteddoes not of itself indicate that any new or additional right was intended to be conferred thereby, but only that the existing right of possession, as defined by the local law, should be. respected-regarded, not infringed or denied without due process of law. Upon its face the stipulation appears to be a mere promise, which of itself confers no right to or in the soil, and for the neglect or violation of which the British subject would only have a just claim against the United States for compensation in money or kind. The legal power of the government to dispose of the territory south of the 49th parallel as it saw proper was not limited by the treaty, and belonged to it thereafter as an incident of its sovereignty. The possessory right that it bound itself to respcct was probably only that which the British subject then enjoyed under the local law, which practically terminated with his life. In Cowenia vs. Hannah, supra, Mr. Justice Boise says: “The treaty of 1846 treated these lands as they then were; and had the parties intended to raise these possessory rights to a higher title, it would have been so provided. I think these possessory rights should cease on being abandoned, so that the possessor became disseized by his own voluntary failure to occupy; or, on his death, as such rights could not descend to heirs.”
Yet, it is probable that justice required that the United States should have shown the same respect to the possessory rights of British subjects that it did to those of its own citizens in like circumstances. By 8 4 of the dona. tion actSeptember 27, 1850—the possessory rights of the American citizens then in the territory were confirmed to them in perpetuity. It is also true that all aliens having such possessory rights were entitled by the act to the benefit of this grant; but this was upon the condition that they should first become American citizens. Probably, by much the larger portion of the British subjects having possessory rights in the territory embraced this of. fer, and obtained title to the lands which they then occupied by becoming American citizens.
But this act, by means of which the United States first undertook to appropriate dispose of --the territory-lands—south of the 49th parallel, made, no provision for ascertaining and protecting the possessory rights of British subjects, as such. In this respect it seems to have been framed in studied disregard of the treaty stipulation; except so far as the following proviso to said & 4 may have the effect to preserve them— "that this shall not be so construed as to allow those claiming rights under the treaty with Great Brit ain, relative to Oregon territory, to claim both under this grant and the treaty, but merely to secure them the election, and confine them to a single grant of land;" and this proviso to § 11 of said act arbitrarily appropriating
confiscating the possessory right of Doctor John McLoughlin, a British subject, to the endowment of a university—“That nothing in this act contained, shall he so construed or executed, as in any way to destroy or affect any rights to land in said territory, holden or claimed under the provisions of the treaty or treaties existing between this country and Grcat Britain."
But admitting that the possessory 'right guaranteed to a British subject by the treaty of 1846 amounted at most to a freehold or a right to occupy the land during the life of the settler, the question arises whether this proviso to $ 4 does not have the effect to constitute it a grant of land, the same as that made to American citizens or aliens who should become such. The pro. viso declares that it was not the intention of congress to allow a settler to claim under the act and the treaty both, but only to secure him the election to take a grant of land under either.
But the act made no provision for a British subject asserting & right to land under the treaty or otherwise, and therefore any one who did not choose to become an American citizen and claim under the act, as such, had no opportunity to give notice to the surveyor general of his right or establish the facts constituting it. The result was that the right of the uccupant was practically extinguished by his death, and those of his widow and children, if any, were ignored. For instance, David Gervais, being born in Oregon, of British subjects, while the territory was in the joint occupation of the United States and Great Britain under the treaty of 1818, was a British subject, (McKay vs. Campbell, 2 Sawyer, 122). At the date of the treaty of 1846 he was in the lawful occupation of 640 acres of land in the Oregon territory. By this treaty the United States agreed that in the future disposition of this magnificent domain his right to this land should be respected. By the act making such disposition, persons in his condition were recognized as being entitled to a grant of land, but no provision was made therein by which he or any one claiming under him could assert or establish his claim in the land department of the country. The conseqnence was, that upon his death the land upon which he had lived for years, and upon which he may have ex.
pended the labor and savings of a lifetime to provide a permanent home for his wife and children, was taken by the defendants-- the DeHavens ---under the donation act, and acquired by them from the United States as a part of the public domain. That this result is far short of what might have been expected from the justice, not to say the magnanimity, of a great nation in dealing with the rights of humble and helpless individuals over whom it had acquired jurisdiction upon the faith of a solemn pledge that it would respect snch rights, will hardly be denied.
But whether in this state of the law, the widow and children of Gervais succeeded to any rights which can be enforced as against these defendants in a judicial proceeding is a matter of which I have serious doubt.
Upon the whole my mind inclines to the conclusion that the treaty stipu lation was not a grant, but a mere promise to respect an existing right of possession which strictly speaking amounted to no more than a freehold, or an estate for the life of the settler, and that the United Sates in disposing o
the territory by the donation act, construed and recognised the right of the · British subject to a grant for his possession the same as an American citizen, but provided no means nor prescribed no mode in which such right could be asserted or established in the land department.
But as this case can be satisfactorily disposed of upon another point made by the demurrer, it is not necssary to consider this question further.
The (3) and (4) causes of the demurrer are in effect that the alleged cause of suit is barred by the lapse of time because suit thereon was not commenced within the time limited by 8 378 of the Or. Civ. Code, which, among other things, prescribes that no suit in equity shall be maintained to set aside, cancel or annul, or otherwise affect a patent to lands issued by the United States * • or to compel any person holding under such patent to convey the lands described therein, or any portion of them, to the plaintiff in such suit, or to hold the same in trust for or to the use and benefit of such plaintiff, for or on account of any matter, thing or transaction which was had, done, suffered or transpired prior to the date of such patent or within one year from the passage of this act."
The act referred to in this section was passed October 20, 1870, and the patent to the defendant was issued on September 6, 1866. This suit was commenced on October 1, 1877, nearly 6 years after the time limited by this act, and more than eleven years after the date of the patent. The case falls whithin the purview of the statute. It is a suit to compel the defendants, holding under a patent from the United States to convey the lands described therein to the plaintiff on account of certain matters, to-wit, the possession and occupation of Gervais, which transpired prior to the date of such patent.
While this $ 378 is not binding upon this court, it has been held to furnish a convenient and safe rule for its action in a similar case. Hall vs. Russell, 3 Saw., 514. In that case the court said:
An action at law to recover possession of this property would not be barred by the laws of this state under twenty years. Whether the court shall fol. low that statute or the limitation of five years contained in 8 375, supra, is the question. It is conceded that, in a case of equitable cognizance like this, the court is not bound by the statute of limitations, but may, for good reason, apply a longer or shorter time in bar of a suit. There is nothing in the circumstances of this case or the period fixed by the statute which requires the court to lengthen the term, but the contrary. * * * * * The patent was issued nearly ten years ago. * * * * * * No reason is given for the delay; nor does it appear that the plaintiffs have been deceived or misled in any way by the defendants, or in anywise induced to forbear the assertion of their alleged rights. There never was any actual relation of trust or confidence between these parties. They claim under titles adverse in their origin, and have alwa ys occupied the attitude of adverse claimants.
Under these circumstances, we think that the court ought to apply the shorter limitation of the two. Statutes of limitation are measures of public policy and expediency, and it is desirable that the rule should be the same in the national and state courts. We think in this case the court may safely adopt the limitation prescribed by the laws of the state in its courts in like Whatever may be thonght of the manner in which the United States has kept its engagement, to respect the right of Gervais to this land, there is no apparent reason why those who claim under him should not have sought redress in the courts before this. This has become a stale claim. There has been an unresonable delay in asserting the right claimed. The case falls within the rule applied in Hall vs. Russell, rupra, and the bill must be dismissed.
Addison C. Gibbs, for the complaint.
Supreme Court of the United States.
CLÍFTON H. MOORE ET AL, Plaintiff in Error,
RUFUS W. ROBBINS. In Error to the Supreme Court of the State of Illinois. 1. A patent for any part of the public lands, when issued by the land depart.
ment acting within the scope of its authority, carries with it, when delivered and accepted by the grantee, the legal title to the land, and with it passes all control of the executive department of the government
over the title. 2. If any lawful reason exists why the patent should be cancelled or rescind.
ed, the appropriate and only remedy is by a bill in chancery, in a court of competent jurisdiction, brought by the government, and there exists, no power in the Secretary of the Interior or any other officer of the government to reconsider the facts on which the patent issued, and to
recall or rescind it, or to issue another for the same land. 3. But when fraud or mistake or misconstruction of the law of the case exists
the United States, or any contesting claimant for the land, may have
appropriate relief in a court of equity. 4 Under the 14th section of the act of 1841, 5 Stat., 457, and the act of
March 3, 1853, 10 Stat., 744, no pre-emption was of any avail against a purchaser of the land at the public land sales, unless the pre-emptor had proved up his settlement and paid for the land before the commencement of the public sales as ordered by the President's proclama
tion. 5. The decision of the Secretary of the Interior in favor of a pre-emption
claimant under such circumstances against a purchaser at the public sales, held to be erroneous as a misconception of the law, and the
equitable title decreed belong to the latter. Mr. Justice Miller delivered the opinion of the Court.
This case is brought before us by a writ of error to the Supreme Court of the State of Illinois.
in its inception it was a bill in the Circuit Court for DeWitt County, to foreclose a mortgage given by Thomas I. Bunn to his brother Lewis Bunn, on the south half of the southeast quarter and the south half of the southwest quarter of section