Chambers v. Chambers , 4 Or. 153 ( 1871 )

By the Court,

McArthur, J.:

The only question pressed upon the attention of this Court was that in relation to the descent of the north half of the donation land claim described in the pleadings. The other question in relation to the partition and assignment of dower raised by the demurrer to the answer was not argued. It was admitted that John W. Manning was the only lineal descendant of Waity Ann Chambers, and that she was the owner of the land described in the grant, and that she obtained it under and by virtue of § 5 of the Donation Act, as the ‘ ‘ Act of Congress, relating to public lands in Oregon,” approved September 27,1850, is commonly designated. Appellant’s counsel urge that the restrictions placed upon the descent of lands acquired under ,and by virtue of § 4, which provides, among other things, that “when 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,” apply with equal force to lands acquired under and by virtue of § 5 of said Act.

It will be noticed that the grants made in §§ 4 and 5 of the Act are separate and distinct grants of different quantities of land to different classes and descriptions of persons. Also that the provision in § 4 changes the rule of descents from that of the common law and that of our statute, and that the conditions attached to a grant under § 5 are in many respects different from those to a grant under § 4. Though embraced in the same Act the , two sections are entirely independent of each other so far as the restrictions upon descent are concerned. The provision in § 4 in relation to descents being in derogation of the common law should be strictly construed. It should not be extended in its operation over any property not expressly included in its terms. The words “ and in all cases when such married persons have complied with the provisions of this Act so as to entitle them to the grant as above provided,” which almost immediately precede the words “when 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,” clearly limit the restrictions upon the descent to the lands granted to settlers who have complied with the requirements as above provided, and they do not extend to the lands granted to settlers who comply with the requirements specified in subsequent sections. The language of that part of § 4 restricting the descent is clear, and in our opinion applies exclusively to lands granted under that section. Waity Ann Chambers held the north half of the Donation Claim under § 5, and as there are no restrictions placed upon the descent of lands acquired by virtue of said section, it follows that the provisions of the statute of descents and of the common law apply. In accordance therewith it descended upon her death to John "W. Manning, her only lineal descendant, charged with the curtesy of Aaron Chambers, her husband, since deceased. Manning for a valuable consideration sold and conveyed it to Mary Ann Chambers, in whom the title now rests.

It follows from the above that in overruling the demurrer and dismissing the suit the Court below did not err.

Decree affirmed.