Page:Federal Reporter, 1st Series, Volume 6.djvu/274

 263 FEDERAL REPORTER. �sale shall be deemed valid unless the vendor shall have re- sided four years upon the land." �In Barney v. Dolpk, 97 U. S. 652, Mr. Chief Justice Waiie, speaking for the supreme court, held that this repeal of the prohibition to sell."was, under the circumstances, equivalent to an express grant of power to sell" after "the right to a patent had been fuUy secured;" and that such repeal did, by a necessary implication, "in cases where sales were made," repeal the above provision in section 4, giving the inter- est of the settler in the donation, in case of his death before patent, to his devisee, or wife and children, or heirs, saying: "Any provision. in the act transferring the title of the settler, in case of his death before receiving the patent, to his child, heir, or devisee, is palpably inconsistent with an unlimited power to sell and convey the land. The two cannot stand together, and consequently the power of sale, which was the latest enactment, must prevail." �This construction of the act, however, leaves the interest of the settler who dies without a patent and without a sale to go or pass as originally provided — to his wife and children, or heirs, or devisee, as the case may be. �In Hall y. Russell, deoided at the present term of the supreme court, Mr. Chief Justice Waite, speaking for the court, held that a settler upon the public lands under the donation act, prior to the completion of the four years' resi- dence and cultivation required by the act, had only a possess- ory right thereto — that is, "a present right to occupy and maintain possession so as to acquire a complete right to the soil;" and that such settler was not qualified to take as a grantee under the act "until he had completed his four years of continued residence and cultivation," and performed "such other acts in the meantime as the statute required in order to protect his claim and keep it alive," such as giving "no- tice of the precise tract claimed," and proving "the com- mencement of the settlement and cultivation;" and that therefore a settler, dying before the completion of such resi- dence and cultivation, had no estate in the land to dispose of by will or otherwise, but that under section 8 of the act his ��� �