Brazee v. Schofield

Citations

• 124 U.S. 495
• 8 S. Ct. 604
• 31 L. Ed. 484
• 1888 U.S. LEXIS 1886

Syllabus

<p>In March, 1848, A S and E S, his .wife, settled upon a tract of public land in what was then the Territory of Oregon, and is now Washington Territory, and from thenceforward continued to reside upon it, and cultivated it for four years as required by the act of September 27, 1850, 9 Stat. 496, c. 76. After completing the required term of cultivation, A S died intestate in January, 1853. In October, 1853, E S, assuming to ■ act under the amendatory act of February 14, 1853, filed with the Sur- ' veyor General of the Territory, proof of the required residence and cultivation by her deceased husband. In 1855 or 1856 the heirs and the widow agreed upon a partition, she taking the east half and they the west half. In 1856 the'Probate Court made partition of the west half among the heirs, and, one of them being a minor, appointed a guardian to represent him, and directed the guardian to sell, by public auction, the tract allotted to his ward in the partition. In accordance therewith the guardian made such sale, and executed and delivered a deed of the property to 3ST S, the purchaser, who entered into possession of the tract, and made valuable improvements on it, and from that time on paid the - taxes upon it. In May, 1860, the map of the public survey, showing this donation claim, was approved, and in June, 1860, final proof of the settlement and cultivation by A.S was made. In June, 1862, E S died. In July, 1S74, the donation certificate was issued, assigning the west half to A S, and the east half to E S,- and in 1877, under the provisions of Kev. Stat. § 2448 a patent was issued accordingly, notwithstanding the deaths of the parties. Some years afterwards the heirs of A S and E S sold and conveyed to J B their interest in the land so sold to N S. J B thereupon brought this action against N S for possession of it. Held :</p> <p>(1) That before the act of February 14, 1853, the settler not being required to give notice in advance of the public survey, A S was not in