Maynard v. Hill

'An act to provide for the dissolution of the bonds of matrimony heretofore existing between D. S. Maynard and Lydia A. Maynard, his wife.

'Section 1. Be it enacted by the legislative assembly of the territory of Oregon, that the bonds of matrimony heretofore existing between D. S. Maynard and Lydia A. Maynard be, and the same are hereby, dissolved.

'Passed the house of representatives, December 22, 1852.

'B. F. HARDING, Speaker of the House of Representatives.

'Passed the council, December 22, 1852.

'M. P. DEADY, President Council.' The complaint alleges that no cause existed at any time for this divorce; that no notice was given to the wife of any application by the husband for a divorce, or of the introduction or pendency of the bill for that act in the legislative assembly; that she had no knowledge of the passage of the act until July, 1853; that at the time she was not within the limits or an inhabitant of Oregon; that she never became a resident of either the territory of state of Oregon; and that she never in any manner acquiesced in or consented to the act; and the plaintiffs insisted that the legislative assembly had no authority to pass the act; that the same is absolutely void; and that the parties were never lawfully divorced. On or about the 15th of January, 1853, the husband, thus divorced, intermarried with one Catherine T. Brashears, and thereafter they lived together as husband and wife until his death. On the 7th of November, 1853, he filed with the surveyor general of Oregon the certificate required under the donation act of September 27, 1850, as amended by the act of h e 14th of February, 1853, accompanied with an affidavit of his residence in Oregon from the 16th of September, 1850, and on the land claimed from April 3, 1852, and that he was married to Lydia A. Maynard until the 24th of December, 1852, having been married to her in Vermont in August, 1828. The notification was also accompanied with corroborative affidavits of two other parties that he had, within their knowledge. resided upon and cultivated the land from the 3d of April, 1852.

On the 30th of April, 1856, he made proof before the register and receiver of the land-office of the territory of his residence upon and cultivation of his claim for four years, from April 3, 1852, to and including April 3, 1856. Those officers accordingly, in May following, issued to him, and to Catherine T. Maynard, his second wife, a certificate for the donation claim, apportioning the west half to him and the east half to her. The certificate was afterwards annulled by the commissioner of the general land-office, on the ground that as it then appeared, and was supposed to be the fact, Lydia A. Maynard, the first wife, was dead, and that her heirs were therefore entitled to half of the claim.

On a subsequent hearing before the register and receiver, the first wife appeared, and they awarded the east half of the claim to her and the west half to the husband, From this decision an appeal was taken to the commissioner of the general land-office, and from the decision of that officer to the secretary of the interior. The commissioner affirmed the decision of the register and receiver so far as it awarded the west half to the husband, but reversed the decision so far as it awarded the east half to the first wife, holding that neither wife was entitled to that half. He accordingly directed the certificate as to the east half to be canceled. The secretary affirmed the decision of the commissioner, holding that the husband had fully complied with all the requirements of the law relating to settlement and cultivation, and was therefore entitled to the west half awarded to him, for which a patent was accordingly issued. But the secretary also held that, at the time of the alleged divorce, the husband possessed only an inchoate interest in the lands, and whether it should ever become a vested interest depended upon his future compliance with the conditions prescribed by the statute; that his first wife accordingly possessed no vested interest in the property. He also held that the second wife was not entitled to any portion of the claim, because she was not his wife on the first day of December, 1850, or within one year from that date, which was necessary, to entitle her to one-half of the claim under the statute; and the plaintiffs insist that the decision of the commissioner and secretary in this particular is erroneous, and founded upon a misapprehension of the law.

Subsequently the east half of the claim was treated as public land, and was surveyed and platted as such under the direction of the commissioner of the general land-office. The defendants Hill and Lewis, with full knowledge, as the bill alleges, of the rights of the first wife, located certain land scrip known as Porterfield land scrip, upon certain portions of the land, and patents of the United States were issued to them accordingly, and they are applicants for the remaining portion. The complaint alleges that the other defendant, Flagg, claims some interest in the property, but the extent and nature thereof are not stated. Upon these facts the plaintiffs claim that they are the equitable owners of the lands patented to the defendants Hill and Lewis, and that the defendants are equitably trustees of the legal title for them. They therefore pray that the defendants may be adjudged to be such trustees, and directed to convey the lands to them by a good and sufficient deed; and for such other and further relief in the premises as to the court shall seem meet and equitable. To this complaint the defendants demure d on the ground that it did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and gave judgment thereon in favor of the defendants. On appeal the supreme court of the territory came to the same conclusion, that the complaint did not state a sufficient cause of action; that no grounds for relief in equity appeared upon it; and that the defendants' demurrer should be sustained. Judgment was accordingly entered that the complaint be dismissed. To review this judgment the case is brought to this court.

MATTHEWS and GRAY, JJ., dissenting.

Henry Beard and Cornelius Hanford, for appellants.

[Argument of Counsel from pages 195-203 intentionally omitted]

Walter H. Smith, for appellees.

Mr. Justice FIELD, after stating the facts as above, delivered the opinion of the court.