Bolton v. La Camas Water Power Co.

Dunbar, C. J.

(dissenting). — I am unable to agree with the majority opinion in this case. While it is true that the paper title to a homestead does not pass until proof is made, or for that matter, until patent issues, yet it is equally true that the courts have held, under laws for obtaining title to the public lands, that where the applicant has done all that the law requires him to do, the proof is only evidenciary matter which establishes or makes known the fact which already existed. This is the doctrine of common sense. It is the actual doing of the things required, and not the proof of the doing, which meets the requirements of the law. When all is done which can be done, the government simply holds the land in trust until the proof is made.

In Stark v. Starrs, 6 Wall. 402, the United States supreme court asserted the rule, that the right to a patent once vested is treated by the government when dealing with the public lands as equivalent to a patent issued ; and further, that when in fact the patent does issue it relates back to the inception of the right of the patentee, so far as may be necessary to cut off intervening claimants. And in discussing the principles involved in that case, the court said:

These are only applications of the well-established doctrine that where one party has acquired the legal title to property to which another has the better right, a court of equity will convert him into a trustee of the true owner, and compel him to convey the legal title.”

And so I say right here, that the right to a patent vested in Bolton when he had complied with the provisions of the homestead act, which required him to cultivate and reside upon the land in question for the five years immediately succeeding his entry upon the same ; and that, when the patent did issue, it related back to the inception of the right of the patentee, and that right was completed when he had met the requirements prescribed by the act, by a residence and cultivation for five years; and that, from the time that this right to a patent vested in him by reason of his compliance as aforesaid, up to the date that the patent issued, the government stood in the relation of a trustee to him, bound to issue the patent upon proof being made in compliance with the requirements of the statute.

This doctrine was followed in Barney v. Dolph, 97 U. S. 652, where the rule was repeated, that when the right to a patent once became vested in a settler under a law, it was equivalent, so far as the government was concerned, to a patent actually issued.

In Stoddard v. Chambers, 2 How. 284, it was held that the issuance of a patent is a mere ministerial act.

In the case of United States v. Freyberg, 32 Fed. 195, the homestead applicant had sold timber off of his homestead prior to his proving up and receiving a patent therefor. Subsequently, however, and subsequent to the commencement of the action against him by the United States for the value of the timber, he made his homestead proof, and the court held in that case that by virtue of the proof which was made, as I have before said, subsequent to the sale of the timber, and even subsequent to the commencement of the action, his rights dated back to the original entry, and consequently protected the occupant and purchaser from liability for acts done on the land while he was holding under his homestead entry ; and the court there stated the rule that where the right to a patent has once become vested in a purchaser of public lands, it is equivalent, so far as the government is concerned, to a patent actually issued; and that the execution and delivery of the patent, after the right to it had become complete, are the mere ministerial acts of the officer charged with that duty. This case, it seems to me, is squarely in point, for it was not from the time that the patent issued or that the proof was made that the court held the right to a patent had become vested, but from the time that the provisions of the homestead law had been complied with. In closing the opinion the court in that case said :

“The only ground urged by the attorney for the United States in opposition to these views was the fact that the patent has not yet been issued, and, therefore, that the legal title has not become vested in the purchaser. But this contention, as we have seen, is not tenable, in view of the legal proposition laid down in cases that have been cited, that the government now holds the legal title merely in trust for the purchaser, whose right to a patent has become vested, and is equivalent, so far as the government is concerned, to a patent actually issued.”

It is true that the cases of Barney v. Dolph and Stark v. Starrs, cited above, were cases under the donation law, and it is equally true that some of the provisions of the donation act are different from those of the homestead or preemption laws; but these principles, which were enunciated by the courts in the cases cited above, are equally applicable and as logically flow from the provisions of the homestead laws as they do from those of the donation law which was being considered at the time.

Our community property law provides that all property and pecuniary rights owned by the husband before marriage, and that acquired by him afterwards by gift, bequest, devise or descent, with the rents, issues and profits thereof, shall be his separate property, which he can manage, alienate, etc., in any manner he may see fit, without the wife joining in such management, or alienation, etc.; and the same character of property when acquired by the wife is her separate property, subject to her exclusive management, alienation, etc.; and it expressly provides in the most sweeping manner that property not acquired or owned as prescribed above, but which is acquired after marriage by either husband or wife, or by both, is community property.

If the conclusion reached by the majority is correct, then community property which is merged in the improvements that are placed upon a homestead is lost to the wife, or the wife’s heirs rather, in case of the death of the wife. For it is not alone the land which constitutes the value of the homestead at the time proof is made or the patent issues ; but it is the land and the improvements. The latter may far exceed, and, in fact, generally do exceed in value, the price of the land before it receives the improvements. A husband and wife may put all their labors, or the fruits of their labor, for five years into a homestead. They may, in fact, put all the accumulations of a lifetime into improvements upon a homestead, and such, improvements may represent all their community property, be it more or less ; yet, if the wife were to die, her heirs would receive nothing, but the heirs of a wife whom the husband might marry the day before the final proof was made would supplant her. And the irresistible logic of the position goes further than this, for if the husband were to divorce his wife, the result would be the same, for there would be no equitable interest of the wife in the homestead which the court could protect or dispose of, according to this contention. And if the husband had a statutory ground for divorce, the wife would be left penniless, even though there might be thousands of dollars invested of her community property in the improvements on the homestead.

It is conceded by respondents that under the law as construed by this court in Philbrick v. Andrews, 8 Wash. 7 (35 Pac. 358), the homestead is community property after the final proof. Of course, if it is community property, under the statute the deed from the husband would not con-vey title unless the wife joined in the same. Can it be possible that the wife’s interest in community property depends upon so frail a tenure as the mere proof of facts already admitted to exist? Is the principal virtue in the proof •of residence, cultivation and improvement instead of the actual residence, cultivation and improvement ? The proof is necessary, of course, but its only office is to satisfy'the .government that there has been a prior compliance (with the requirements prescribed. Consequently, all the rights which the applicant had attached when he had in good faith met these requirements, and must necessarily date back to that •time.

And that this was the intention of congress is to my mind plainly indicated by the provisions of the act itself. Sec. 2291 of the Revised Statutes provides that this proof may be made at the expiration of five years, and it may be made at any time between the expiration of five years from the date of entry and the expiration of seven years, allowing two years .after the requirements have all been complied with on the part of the applicant to go through the formality of making proof of what had been done during the first five years. Indeed, the requirements are at an end at the expiration of five years. The residence and cultivation may cease during these two additional years. The five years are given for the .actual and substantial compliance with the provisions of the law, which are presumed to show good faith on the part of the homestead applicant; and the two succeeding years are allowed, if desired, to present the proof of what was done during the first five. It must be observed that there are no requirements concerning the last two 5 years. It is not even necessary that the applicant should reside on the land, but the proof must be that he has resided upon and cultivated the same for five years immediately preceding the filing.

Again, as showing that the plain intent of congress was to vest the right of the applicant upon the actual compliance for five years, § 2297 provides that if at any time after the filing of the affidavit, as required in § 2290, and before the expiration of the five years mentioned in § 2291, it is proved after due notice to the settler, to the satisfaction of the register of the land office that the person having filed such affidavit has actually changed his residence or abandoned the land for more than six months at any time, then, in that event, the land so entered shall revert to the government. But it must be observed that there is no provision for any reversion to the government upon change of residence, or for any other reason, between the expiration of the five years and the expiration of the seven years allowed for the proof; showing conclusively that if the requirements of the law have been complied with up to the expiration of the five years allowed for that purpose, the right to the land has actually vested; that all has been done by the applicant which the law requires, and that by applying the rule laid down by the supreme court of the United States in Barney v. Dolph, supra, the government simply becomes the trustee of the applicant to convey the legal title when the proof is formally given. ’ To hold that it is the proof of the compliance rather than the actual compliance with the requirements of the law, which constitutes the rights of the applicant, is little less unreasonable than to hold that where a party takes a mortgage for security, the security itself does not attach until the execution of the mortgage is proven in a foreclosure suit, under a statute which requires the proof of such execution.

It is contended by the respondent that title does not pass from the United States by a conditional grant of public land so long as any requirement of the grantee, under a condition of the grant, remains uncompleted. I find no fault with this proposition, but my contention is that there was no further act required of Bolton which was necessary to give him the right to the land; that the right attached upon complying with the requirements of the act as to cultivation and residence; but that the proof was only necessary to compel the publication and formal acknowledgment of this right in the shape of a patent; or, in other words, to compel the granting of a paper title by the government.

I have examined the cases cited by respondents under this head, and do not consider them at all in point. Railway Co. v. McShane, 22 Wall. 444, was a case where grant of lands had been made to a railroad company, and the state undertook to tax them, and the court held that the state had no power to tax the lands, and that the title had not passed because one of the conditions of the grant had not been complied with, inasmuch as the act had specially provided that the costs of survey must be paid before lands would pass to the company. There the court held that the payment of costs of survey of the land is a condition precedent to a right to receive the title from the government, and that until such payment was made the equitable title of the company was incomplete. “There remains,” says the court, “ a payment to be made to perfect it. There is something to be done without which the company is not entitled to a patent.” But it will be seen that this was a substantial something. The thing itself and not the proof of the thing, was to be done. A consideration was supposed to move towards the government for its grant. A part of the consideration agreed upon was the payment of these costs of survey. This part of the consideration had not been paid, and it seems to me that the court could not have come to any other conclusion than that the equitable title had not attached because the conditions had not been complied with altogether ; a different proposition from the one under consideration.

The same doctrine was announced in Shepley v. Cowan, 91 U. S. 330, in which it was held that where a settler seeks, to acquire a right of preemption to the lands that had been granted to a state under the eighth section of the act of congress of September 14, 1841, and which the state had sought to select as a part of said grant, the party taking the first initiatory step, if the same was followed up to a patent, acquired the better right to the premises ; and this case, when looked at carefully, sustains the position that I assume here, and announces the fact that the patent relates to the date of the initiatory act, and cuts off all intervening claimants ; going further really than is necessary to sustain the position of appellants here, that the patent relates back only to the period when all the conditions prescribed by the act had been complied with.

In Frisbie v. Whitney, 9 Wall. 187, it is decided that a vested right under the preemption laws is only obtained when the purchase money has been paid, and the receipt of the proper land officer given to the purchaser ; that until this is done it is within the legal and constitutional competency of congress to withdraw the land from entry or sale, though this may defeat the imperfect right of the settler. I think this case cannot be construed as bearing on the case in question, as the payment for the land under the preemption act is the principal consideration, and most certainly there is something substantial for the preemptor yet to do when he has not paid the purchase price of the land.

The case of Central Colorado Imp. Co. v. Commissioners, 95 U. S. 259, does not seem to me to touch the case under consideration.

Respondent puts a suppositional case and asks, in case appellant had been to the land office and relinquished his claim to some other party after five years from the date of entry had expired, what would have become of the wife’s vested right. We are not called upon here to answer that question, as appellant did not relinquish his right to the homestead, and the United States government is not a party in any respect, and is not demanding any rights by reason of any relinquishment, or at all. But it is purely a question between citizens of this state, under the community property laws which the state saw fit to enact. The objection by respondent that the community property law was not in effect at the time of the proof furnished by Bolton, is answered by saying that the law providing for common property was in effect, and under its provisions the rights of these litigants would be affected in the same manner as they are under the community property laws.

It seems to me that if any intelligent effect or force is to be given to the community property laws of this state, not considering any questions which involve the rights of the government, but considering those only which involve the rights of these litigants as citizens of the state, it must necessarily follow that the heirs of Mrs. Julia Catherine Bolton are entitled to the interest which they demand in the property which was conveyed by Bolton; and that there is no question of estoppel in this case, the claimants here being minors at the time the land was conveyed.

The judgment, in my opinion, should be reversed.