Galliher v. Cadwell

STATEMENT BY MR. JUSTICE BREWER.

On March 1, 1886, appellee, claiming to be the owner of what is known as 'Votaw's Addition to the City of Tacoma,' in the then territory of Washington, filed her bill in the district court to quiet her title to such property, making, with several others, as a defendant, the present appellant. Such appellant answered, alleging a right prior and supperior to that of appellee. Appellee's title was derived by regular conveyances from Francis B. H. Wing, who, on December 20, 1881, entered this land, and on April 20, 1882, received a patent therefor from the United States. Her legal title was, therefore, perfect, and the single question presented was whether appellant had an equity superior to that legal title. In appellant's behalf these general facts appeared: On August 10, 1872, Silas Galliher, her husband, made a homestead entry of the tract. He died April 18, 1873, and his entry was canceled December 4, 1879, for want of final proof within the statutory period of seven years. On June 15, 1880, an act was passed by congress of which the following is the second section:

'Sec. 2. That persons who have hereto-fore, under any of the homestead laws, entered lands properly subject to such entry, or persons to whom the right of those having so entered for homesteads may have been attempted to be transferred by bona fide instrument in writing, may entitle themselves to said lands by paying the government price therefor, and in no case less than one dollar and twenty-five cents per acre; and the amount heretofore paid the government upon said lands shall be taken as part payment of said price; provided, this shall in no wise interfere with the rights or claims of others who may have subsequently entered such lands under the homestead laws.' 21 St. p. 237.

On November 23, 1880, Mrs. Galliher made application for the land under this act. On June 1, 1881, her application was rejected by the secretary of the interior. On June 6, 1884, she petitioned for a rehearing, which, on June 20, 1884, was denied. No other action was taken by her to establish or assert any rights until, in response to the bill in this case, she filed her answer. Upon the proofs the trial court rendered a decree in favor of the appellee, which was sustained by the supreme court of the territory. From such decision appellant brought her appeal to this court.

J. W. Robinson and John B. Allen, for appellant.

J. H. Mitchell, for appellee.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.