Brazee v. Schofield

Opinion by

Greene, Chief Justice.

The first step toward deciding this cause is, to determine clearly the nature of what takes place between the United States and its donee, when proceedings are had under the Oregon Donation Act to establish title to the latter. By the act there “ is granted ” to every man of a certain description, or, if he has a wife, then to him and her in equal parts, as shall he set off to them severally by the Surveyor General, a tract of land not to exceed a certain area, on condition that the same-shall be selected in a certain way, and in consideration that it shall be resided ujion and cultivated a certain length of time, This grant is subject, however, to the qualification that if the husband and wife have complied with the provisions of the act so as to entitle them to the grant, and either of them' before patent has issued shall have, died intestate, as to his or her-share, the survivor and children or heirs of the deceased shall be entitled to the share or interest of the decedent in equal' proportions. Throughout the transaction the United States-holds the position of seller, and the donee that of purchaser. As soon as the necessary selection has been made, and the prescribed residence and cultivation completed, the transaction is closed, as far as bargain and sale is concerned. Nothing remains but to assure the vendor, or the vendor’s agents, the officers of the land office, that as matter of fact the grant has become effective, by meeting a fit grantee who has rendered the proposed consideration, so that they may furnish the grantee with good and sufficient evidence of his title. Final proof, so-called, is no part of the consideration which the grantee gives, but is merely evidentiary matter, provided for the purpose of satisfying the land office that the right of the grantee is perfect,, and entitles him to a patent.

The act, and not the patent, is the instrument which works-the transfer of title. Its language is unmistakable — “ there shall be and hereby is granted.” One conveys, the other evidences, title. The patent is but a formal and solemn piece of evidence, that all things essential to be done under the Donation-Act before passage of title have been done ; and that therefore, under the act, title has actually passed out from the United'. States into the donee. Act and patent together fulfill all the functions of an ordinary deed of conveyance. The two together both convey and evidence title. The patent merely evidences, and does no more; but the act evidences to a certain extent-only, and then, over and beyond that, does alone and perfectly convey. When patent issues, it relates back to and combines-with the act, as of the date -when a fit guarantee rendering full consideration appeared, and so as to form with the act a perfect muniment of title. Title under the Donation Act, therefore, i» always complete before patent issues, and the patent issues by virtue of title completed, and not otherwise. In the case at bar the widow and heirs, if they have acquired any title at all, have-got it under the Donation Act. Their patent so recites, and neither they nor any grantee of theirs can, while claiming under that patent, deny it. They are estopped from saying, to the prejudice of any grantee of theirs, but that the husband and ancestor* Amos Short, deceased, duly resided upon and cultivated for the-prescribed period the Donation Land Claim known as his, or that by virtue of a full compliance with the essential requirements of the Donation Act his widow and children were, at the-date of his death, in January, 1853, entitled under the act to-that land claim. Such being their situation, the great question of this case is, Has that title, as to the parcel of land here in dispute, passed, by reason of their acts, from them to the appellees?

All provisions of the Donation Act necessary and precedent to the passage of title had been complied with prior to 1855,. and the widow and children then held among them, undivided* all disposable interest in the land. In that year or the next, as appears from the evidence, they agreed to and did, as far as they could, divide the claim into halves — an east half and a west half — assigning to the widow the east, and to the children the-west. This, of course, was subject to whatever decision the Surveyor General might make, in determining where the division line should be drawn.

Assuming that the Surveyor General would affirm, or fall in. with, this division, and that the west half would by him be set off to them, the children afterwards, m 1856, undertook to procure a further division among themselves of that half. To effect this, those of them who were of age applied personally, and those not of age by guardian, to the Probate Court for a partition. Pursuant to or connected with that application, a partition — at least in form — was made or sought to be made by the Court. Considered as a judicial proceeding, it was doubtless void, except in so far as it engaged the Court in supervising and sanctioning the acts of the participating guardians. But the formal partition all the heirs willingly made actual and substantial, by each personally or by guardian spontaneously taking possession and dominion in severalty of liis or her portion, and by mutually paying and accepting owelty sufficient fully to equalize all the allotments. Was it in fact, then, valid or void ?

It is argued by appellant that it was void, for three reasons : 1st, because the guardians acted without authority, and have never had their action affirmed by their wards since the latter became of age ; 2d, because it was by parol and not by deed ; 3d, because that half of the Donation Claim which the heirs undertook to subdivide had not yet been assigned to them by the Surveyor General.

As to the first objection, the assumption that the guardians acted without authority is not borne out by the record. They were in presence of that Court which had peculiar and general jurisdiction over them; they were parties to the petition for partition among the children; they proceeded, in the partition among the children, on the basis of the previous partition between the widow and children ; they acted throughout under the eye of their supervising Court; and their action, after all w-is done, and with everything in full view and fully understood, was solemnly ratified and confirmed by that Court. If a partition may be compelled, it may also be voluntary. In a voluntary partition, proposing to set apart the shares of minors, those who have charge of the estates of the minors have power to act for their wards, under supervision of the Court which has the estates in charge. Whether they act with due authority to bind their wards, can be seen by inspecting the record of the Court. If they act with judicial authority, thej bind their wards ; otherwise not. Where the record shows that the matter which the Court considered was within its jurisdiction, and all necessary parties were before it, there the action of the Court, however irregular, is proof against collateral attack.

But, even admitting that the guardians acted without authority, the wards, on coming of age, were not absolutely obliged to reject what their guardians did. They had an election. Within a reasonable time they coqld affirm or disaffirm. If, within a reasonable time after reaching majority, they did not disaffirm, they thereby affirmed. In the case before us, their acquiescence, since becoming of age, has continued for periods varying from eight to twenty years. Having assented, for so many years of their majority, to both partitions, they are now forever bound by both.

To the second objection, we answer that a parol partition, which has been actually consummated by possession and dominion in severalty,-and which has been confirmed by long continued jicquiescence and by many changes of title, ought not to be and will not be disturbed in equity. There are cases holding that it affords a legal title in severalty, even in face of a statute requiring transfer of realty to be in writing or by deed. But we do not need to go that far.

Possession and dominion, initiated by consent, have been held adversely under these partitions for a quarter of a century. Guardians, under supposed authority of a proper supervising Court, have undertaken to bind their wards’ interests. Wards, on becoming of age, have affirmed by long acquiescence, and many of them by express acts, the doings of their guardians. Estates have passed for full values into the hands of purchasers. Costly improvements have been made in full faith of the stability of what has been done. The strongest possible interlacing ■equities now bind the parties to remain henceforth forever fixed in their relative positions.

To the third objection, the familiar principle applies; that where one has, by bargain and sale, for valuable consideration which he has actually received and enjoyed, undertaken to dispose of a proprietary interest which he had not at the time, but afterwards acquires, his acquisition of it enures to the use of hia quondam vendee. If the action of the Surveyor General had been such that these heirs could never have, each of them, an undivided tenth of the west half to dispose of, then their petition would have turned out to be, indeed, an empty affair. But so it happened, that the award of the Surveyor General to the heirs in 1874 exactly coincided with their appropriation for themselves and partition among themselves of 1856. Their titles have fallen just along the lines and into the spaces which, for mutual and valuable considerations, long ago paid and spent, they had intelligently and advisedly marked out and provided. To the meeting of their own minds, it was only necessary to add the mind of the Surveyor General. In 1874, before their minds had drawn apart, his was added; and then therefore, by relation of his award back to 1856, no one yet dissenting, the partition, so far as this aspect of it is concerned, became perfected.

Under these partitions, Grant II. Short, one of the minor children, became invested with and possessed of a share of the west half, known as Lot No. 7, which is the land in controversy. He held and dealt with this lot as his, until 1865. In that year, while he was still a minor, his guardian, who was one of his brothers, acting under direction of the Probate Court, sold it to the appellee, Nicholas Schofield, for seven hundred and eighty-five dollars, a fair price for it. This sum was applied,, by direction of the Probate Court, in payment of a mortgage-debt upon the premises, and of other debts proved and allowed against the minor’s estate. Next year, Grant H. Short attained his majority. After twelve years of silence, he in 1878 gives-to appellant’s grantor a quit-claim deed of all his right, title and interest in the Donation Claim. About the same date, the rest of the children give to appellant’s grantor similar deeds as to-their respective interests. Meantime, appellees have put upon the premises permanent improvements of great value. Now the appellant contends that this last guardian’s sale was void, for reasons reducible to two: First, because there was no certain description of the property to be sold in the petition for sale ; and second, because no notice was given, such as the order of Court and the statute required. True, the proceedings'before sale show irregularities, but they were not, in our opinion, such as open the decree confirming the sale to collateral attack. Enough is in the petition to show that the Probate Court was asked to act upon a definite matter within its proper jurisdiction. In all that it did, from the petition to the decree of confirmation, it was a Court of record, acting within its proper sphere ; and however erroneous in action, and however liable to be reversed on error, it is entitled to have its adjudication stand impregnable until so impugned.

But if we regard the judicial proceeding as invalid, our attention is arrested by the fact that the ward and all others interested have let at least twelve years go by without offering to question it, during eight of which years every one of them has been of full age. Entire, though tacit, acquiesence for such a length of time is equivalent to most solemn express affirmance. From twenty-one to thirty-three years of age, in full possession ■of his faculties, well aware of all the circumstances, Grant H. Short has lived along without allowing to escape him a single intimation disapproving the act of his guardian. The other children during the same space, but for differing periods of majority, have done likewise. They have thus, every one of them, thoroughly and foi’ever estopped themselves from disavowing that act.

In conclusion, we will say that, in our opinion, the decision of this whole case may be satisfactorily planted on the doctrine of ■estoppel. If there be such a thing as estoppel, by failure to make objection within a reasonable time to doings done color-.ably in one’s own name, and whereof he has had the benefit, and which are susceptible of being ratified, because bearing fruits ■capable of being legitimately enjoyed, then this is the case, or seems so to us, where that estoppel occurs.

Appellant could, at the most, recover only the interests of the heirs not estopped. His case is strongest where he represents the minors, and among them it varies in strength, in proportion to their length of nonage respectively after their father’s death. But the youngest child was eight years of full age before he ventured by quit-claim deed, or in any other way, spontaneously or on solicitation, to object to what had been done for him by ■guardian, at periods varying from thirteen to twenty-one years previously. The very youngest of these children has slept on Jiis alleged rights too long to be heard now to press them in a Court of equity.

Let the jxxdgment of the District Court be affirmed.