Page:Federal Reporter, 1st Series, Volume 6.djvu/272

 260 FEDERAL REPORTER. �S. Patbkt to thb Heihs OB' a Decbased Settleb. �A. patent to the heirs of a deceased settler, under said section 4, pre- supposes that it was found in the land department that such settlers left no children, and the contrary cannot be shown to aflect the pat- ent in an action at law. �Action to Eecover Real Property. �J. H, Reed and Hugh T. Bingham, for plaintiff. �W. Cary Johnson, for defendants. �Dbady, D. J. This action is brought by the plaintiff, a citizen of California, against the defendants, David Cutting, Orin Cutting, and G. J. Trullinger, citizens of Oregon, to re- cover the possession of an undivided one-fifth of the north half of the donation of Charles Cutting and Abigail, his wife, the same being claims numbered 47 and 52, and parts of sec- tions 5 and 6 in township 4 S., range 2 E., and sections 1 and 2 in township 5 S., of the same range, and situated in the county of Clackamas. �The defendants David and Orin Cutting deny the allega- tions of the complaint, and allege that they are the owners in fee of the premises, except 116 acres thereof, The defendant Trullinger makes the like deniais, and aUeges that he is such owner of the said 116 acres. �By the stipulation of the parties the case is submitted to the court upon an agreed state of facts, which is to stand and be taken for the special verdict of a jury. Prom this it ap- pears that Charles Cutting settled upon the claims aforesaid on April 11, 184O, and on May 3, 1864, duly proved his res- idence and cultivation thereon, as provided in the donation act of September 27, 1850, (9 St. 497,) from June 20, 1850, until July 10, 1854; but did not then, nor thereafter, pay the fee required by law for the patent certificate, and died thereon, intestate, in the year 1S68 ; that on February 38, 1870, upon the application of the administrator of said Charles Cutting, and upon the payment by him of the neces- sary fee therefor, a patent certificate for said donation was issued to said Abigail, the widow of said Charles Cutting, and to the "heirs at law" of the latter — the south half to said Abigail and the north half to said heirs; and that after- ��� �