
    A. M. and L. M. Starr, Respondents, v. Benjamin Stark, Appellant.
    
      Appeal from Multnomah County.
    
    1. A patent for land from the United States may be attacked and set aside for fraud.
    2. What color of title sufficient to give one a sufficient standing to impeach. patent.
    3. Residence and cultivation, under the donation law of 1850, what?
    4 Effect of a patent issued to the city of Portland.
    Benjamin Stark claimed a part of the town site of the city of Portland, as a donee under the act of Congress of 21th September, 1850, donating lands to actual settlers in Oregon. * The fourth section of that act provides that, in order to obtain a patent from the United States, the settler shall first reside on and cultivate the tract claimed for four years continuously. The act further provides that a notification of the tract claimed, describing the land and stating the time of settlement, shall be filed with the surveyor-general, and the fact of a continual residence and cultivation for four years be proven to the satisfaction of that officer; and when such continual residence and cultivation is proved, a donation certificate from the surveyor-general shall be furnished the settler. Stark obtained a donation certificate from the said surveyor-general, dated September 1st, 1853, in which is the following recital of the proof: After describing the land, the Certificate says that said Stark, “ having proven to the satisfaction of the surveyor-general of Oregon the fact that such settlement was commenced on the 1st day of September, 1819, four years prior to the date hereof, and having, in pursuance of the requirements of the seventh section of the act aforesaid, established by two disinterested witnesses the fact of continual residence and cultivation, required by the fourth section of said act,” &c. In accordance with this certificate, a patent was issued to Stark on the 8tk day of December, 1860, in wbicb patent reservations are made in favor of sucb tracts as are occupied by persons for commercial purposes within tbe limits covered by tbe patent. Tbe day before tbe patent to Stark was issued, to wit: on tbe 'Tth day of December, 1860, a patent was issued to tbe authorities of tbe city of Portland, in trust, for tbe several use and benefit of tbe occupants thereof, according to their respective interests, under tbe town site act of Congress of tbe 23d of May, 1844, entitled “ An act for tbe relief of citizens of towns upon tbe lands of tbe TTnited States, under certain circumstances.” Tbe complainants, tbe Starrs, say that Stark threatens to eject them from tbe lots in question, to wit: Lots numbers one, two and four, in block number eigbty-one; that they have been in tbe constant occupation of said lots since 1849, using them as places of business for tbe purposes of trade and commerce, and claim that they have a right to have their title perfected under tbe city patent; and further say, that tbe reason they have not bad sucb title perfected, is that tbe legislature of tbe State of Oregon has passed no law to enable tbe city authorities of Portland to fulfill said trust.
    Stark claims that said patent to tbe city is without authority in law, and can give claimants no standing in court to claim under it.
    From the decree of the Circuit Court Stark appeals.
    
      Strong & Wait, of counsel for appellant.
    
      W. W. Chapman, Esq., of counsel for respondents.
   Boise, J.

Without undertaking to discuss tbe question as to tbe validity of tbe patent to tbe city, as against that to Stark, bad it been obtained without fraud against tbe government, I think tbe claimants, being actual occupants of these lots in good faith, and occupying them, for puiposes of trade and commerce, have a sufficient color of title under tbe patent of tbe city to give them a standing in a coiu’t of equity to impeach if they can, the patent to Stark, on the ground that the same was obtained from the government by fraud.

The fraud alleged in the complaint is, that the written evidence of four years, actual residence and cultivation produced by Stark to the surveyor-general, on which the donation certificate was issued, was false and'fraudulent; and that in fact Stark had not, on the 10th of September, 1853, remained on, and cultivated said tract for four years.

The court, after having examined the evidence in this case, finds that the findings of the facts in the case by Judge Shat-tuck, who tried the case in the court below, are correct, and for convenience I shall adopt them here, as follows: Facts— That the defendant had, during the time between September, 1849, and September, 1853, a mercantile house on the claim of John H. Couch, adjoining the tract claimed by defendant, a mercantile house in San Francisco, California, and one in New York, in co-partnership with another person; was himself a merchant, and in actual charge, and managing partner of the house in San Francisco. It is not found that defendant had any house, residence or place of business upon the tract covered by his patent prior to the fall of 1850. That up to 1851 the defendant was engaged in mercantile business and commerce between Portland, San Francisco and New York, but spent the greater portion of his time at San Francisco, between September, 1849, and September, 1850. That the defendant was in Portland, Oregon, in June, 1850 and in August, 1850, one Sherman, an agent of the defendant, commenced the construction of a building upon the tract described in defendant’s patent, which was afterwards used as an office, and was occupied by defendant’s agent; but it is not found that defendant himself ever occupied this building, if at all, prior to October, 1850. That defendant left Oregon in October, 1850, and was absent in the Atlantic States, and in California until somewhere in 1857, but with the intention of returning to Oregon, and of making a home on the tract named in his patent. That prior to his departure in October, 3 850, the defendant caused a dwelling house to be erected on the tract, which was leased to a tenant, and occupied by a tenant till defendant’s return in 1857, and occupied by defendant himself as a boarding place or residence, from his return till 1861. “That portions of the tract were, prior to March, 1850, divided into lots and were occupied at that time, and have been up to the commencement of this suit occupied for purposes of trade and commerce.” “That a part of .the premises in controversy, to wit: Lot number two, was occupied by the plaintiffs in October, 1850, and has continued to he occupied by them till tbe commencement of this suit for tbe purpose of manufacturing tinware.

“ That tbe other portions of tbe premises in dispute have been occupied by and in actual possession of tbe plaintiffs and their grantees, clabning adversely to tbe defendant,, since some time in tbe early part of 1850,

“ That tbe plaintiffs were in possession of all they claim in tbe complaint on tbe 7th of December, 1860,” tbe date of tbe patent to tbe city of Portland.

Prom this finding of tbe facts, it is obvious that Stark bad not resided on and cultivated tbe land described in bis patent, for four years, on tbe 10th of September, 1853, tbe date of bis donation certificate, for be bad no bouse or place of residence on tbe land before tbe fall of 1850, so that tbe testimony by wbicb be was enabled to obtain bis donation certificate from tbe surveyor-general of Oregon was not true in fact; and whether tbe witnesses who testified. to these facts-were mistaken, or willfully false, makes no difference. It was-a fraud on tbe government and on tbe plaintiffs.

As to tbe question of residence and cultivation, they must' be actual on some portion of tbe land, and tbe possession of tbe whole tract must be an advex’Se possession; that is to< say, a possession that gives tbe claimant control of tbe whole premises as occupier or landlord. As tbe patent refers to and is issued on tbe donation certificate, we cannot inquire into tbe question of tbe x-igbt of Stark to complete bis x’esidenceafter tbe date of bis certificate; and as tbe patent of Stark is void for tbe reason that bis residence was not completed at tbe time of tbe granting of tbe donation certificate. The-act of Congress, relative to citizens occupying town sites for the purposes of trade and commerce, applies to tbis land, and tbe patent to tbe city, being unimpeacbed by a better title, will be beld valid in tbis case, so far as to protect tbe title of tbe plaintiffs.

Decree affirmed.

Note. — This case was reversed in the Supreme Court of the United States at the December term, 1867. That court, among other points, held thus: “ The mere naked possession of the plaintiff is not sufficient to authorize him to institute the suit, and require an exhibition of the estate of the adverse claimant, though the language of the statute is, that any person in possession, by himself or his tenant, may maintain’ the suit. His possession must be accompanied by a claim of right that is founded upon title, legal or equitable, &c.

“ If the town site act was not in force in Oregon before the right of Stark to a patent of his donation claim became perfected, the reservation of the patent was inoperative and void. The right became perfected when the certificate of the surveyor-general and accompanying proofs were received by the commissioner of the general land office, and he found no valid objection to them. That is to say, if the donation act of 1850 was applicable to the lands, his right to a patent became perfect when the certificate of the surveyor and accompanying proof showed, in the judgment of the commissioner, a compliance with its requirements.

“ The town site act of 1844 was not extended to Oregon until.the 17th day of July, 1854, and even then it only operated to exclude lands occupied as town .sites or settled upon for the purposes of business or trade, from a donation claim which had not been previously surveyed. Before the passage of this act, the claim of defendant, Stark, had been surveyed, and the required proof of his settlement and continued occupation and residence made, and such steps had been taken as to perfect his right to a patent. 'The lands embraced by his claim had then ceased to be the subject of purchase from the United States by any person, natural or artificial. The right to a patent once vested is treated by the government, when dealing with the public lands, as equivalent to a patent issued. When in fact the patent does issue, it relates back to the inception of the right of the patentee, so far as it may be necessary, to out off int&imning claimants.''’

“ It follows, from the views expressed, that the plaintiff derived no title or estate in the premises in dispute, by force of the patent to the corporate authorities of the city of Portland.” (S. C. Rep., 1869.)  