Page:Portland, Oregon, its History and Builders volume 1.djvu/316

 sumption of bad

faith and fraud, which should not be admitted. The fact that Lownsdale pro- ceeded voluntarily to get title and not under compulsion of his covenant, or that he received no valuable consideration for procuring this title, would not, therefore, make any difference with the binding nature of his covenant, which was legally fulfilled by the very fact of his obtaining title.

Still further, it was held that the clause requiring an affidavit of those en- tering lands under the donation act, that such land was for their own use and they had made no contract to sell it, should be decided or interpreted in the same liberal spirit. It was held that the law was enacted with a view to the existing state of things, contemplating the fact that many settlers had been living long on their claims, had already sold and bought; and that to confirm sales already made, in the course of business in the past, was no "future contract" such as was contemplated and prohibited by the law. At all events, the clause must be construed so as to work both ways; if it were held to prevent those who had bought land from Lownsdale from holding their lots, it must also be held to prevent Lownsdale from perfecting his title, since it was no more an infraction of the law for them to buy than for Lownsdale to sell. But Lownsdale had been permitted to obtain title, in spite of his former promise to grant titles to purchasers, and upon the validity of his patent must the whole validity of the claim of the plaintiffs be made to rest. But if his title was valid in face of his covenant, that covenant was not invalidated by the clause in the donation act prohibiting future contracts.

Judge Deady concurred in the following language: *T concur in the conclu- sion reached by the circuit judge. After careful consideration, and not without some doubt and hesitation, I have become satisfied that by force of the agree- ment of March lo, 1852, and the subsequent action of Lownsdale, Coffin and Chapman, under and in pursuance of it, each of them took and obtained from the United States a separate portion of the land claim in trust for the pur- chasers or vendees of any lots situated therein, and before that time sold by any or all of these parties.

"From the passage of the Donation Act, September 27, 1850, and prior thereto, Lownsdale, Coffin and Chapman had held this land claim in common, and made sales of lots throughout the extent and with intent to conform to the provisions of said act and obtain the benefit thereof, they partitioned the claim between themselves so that each was thereafter enabled to proceed for himself and notify upon and obtain a donation of a separate portion of the whole tract. "The donation act was a grant in praesenti. Each of these settlers — Lowns- dale, Coffin and Chapman — was upon the land at the date of its passage, and from that time is deemed to have an estate in fee simple in his donation, subject only to be defeated by a failure on his part to perform the subsequent condi- tions of residence, cultivation and a proof thereof. This being so, it follows that at the date of this agreement either of these parties could impress a trust upon his donation in favor of any one. And even if it be considered that the settlers acquired no interest in the land until the partition and notification be- fore the surveyor-general, still each one having acquired a separate portion of the common claim in pursuance and partly by means of this agreement, as soon as he did so acquire it, the trust provided for in it became as executed at once; and might be enforced by the beneficiary thereof, although a mere volunteer, from whom no meritorious consideration moved."

He summed up the case thus: "I think the agreement of March 10. 1852, a valid instrument, and not within the prohibition entered in section four of the Donation Act, against 'all future contracts for the sale of land' granted by the act. By its terms it appears to be a contract concerning the making of title to the parcels or lots of land already sold, and for aught that appears before the passage of the Donation Act. But if this were doubtful, good policy, it seems to me, requires that the instrument, as between the parties to it and in favor of those intended to be benefited by it, should be so construed and upheld."