
    Thomas Carter, Appellant, v. W. W. Chapman and Wife, Respondents.
    
      Appeal from Multnomah County.
    
    1. The claimant of a donation land claim, under act of Congress of 27th September, 1850, must set the land apart for his own use, and designate it by boundaries with reasonable certainty; and any substantial change in the,location will be an abandonment of his claim, and the taking of a new one.
    2. A married woman cannot be deprived of her real Restate except by her deed.
    
      L. F. Grover, Esq., for appellant.
    
      Kelly & Chapman, for respondent.
   Boise, C. J.

In 1850, W. W. Chapman, the husband of Margaret F. Chapman, conveyed block “W” to D. H. Lownsdale. On the 10th day of February, 1852, D. H. Lownsdale and wife conveyed the same block to Carter, plaintiff. Since that time, a patent to the land claim, including block W, has been issued to the said Margaret F. Chapman, it being her portion of a donation right to her husband and herself, under act of Congress of 27th September, 1850, donating land to settlers in Oregon. The complainant claims that, at the time Lownsdale and wife conveyed to him, they were the owners in fee of the land, including block "W, as claimants under said act of Congress of 27th September, 1850 ; and that he got from them by déed an indefeasible title. He claims that, at that time, Lownsdale and wife had complied with all the requirements of said act of Congress so as to entitle them to the grant of land, including block W. Complainant asks that the court decree that, as said Margaret F. Chapman has obtained the patent wrongfully, she be declared a trustee of said block W for the use of complainant. As this is purely a matter of evidence, we have inquired into the facts. It seems that about 1848, or more than four years before the execution of the deed of Lownsdale and wife to Carter, Lownsdale settled on and held a land claim under said act of Congress, lying west of the Portland claim. That then, one Pettygrove was holding and. claiming the Portland claim. That the boundaries between these claims were in dispute between claimants Lownsdale and Pettygrove, and that Lownsdale was residing-on the disputed ground. In 1849, Lownsdale bought out Pettygrove, and went into actual possession of the Portland claim, as claimant, and abandoned his former claim all but the small portion that was in dispute between him and Pettygrove, and that Lownsdale then for the first time became the claimant of the Portland land claim, including block W. It is contended by the counsel for Carter, that, as Lownsdale actually resided on and cultivated the disputed tract, which had been claimed by himself and by Pettygrove, before he bought out Pettygrove,. and which was a small strip of land on the west edge of the Portland claim, as held by Lownsdale after his purchase from Pettygrove, such residence and cultivation is a substantial compliance with the act of September 21th, 1850; that. is, that, if a settler actually reside on and cultivate one corner of six hundred and forty acres of land, claiming it all as a land claim for a time, and then abandon six hundred acres of it, retaining forty, and take six hundred acres more on the other side of his residence, which he obtains by the abandonment of another settler, this latter is, in contemplation of law, the same claim. We think this view is erroneous; it would be taking substantially a new claim. Por instance, to take a donation land claim, a person must segregate his claim from the rest of the public domain, and fix its boundaries with reasonable certainty, so that others may know what land he claims, and be enabled to take claims adjoining his. The claimant must also be in actual legal possession of the land lie claims, and he cannot be said to be in possession of land be does not claim; be must exercise over it acts of ownership such as would make bis possession ad/oerse. It cannot be said that Lownsdale exercised acts of ownership over tbe Portland claim until after be bought it of Petty-grove, and went into possession under that purchase; for, prior to that time, Pettygrove was in possession, and Lownsdale acknowledged that possession and recognized Mm as rightful owner. It is clear from tbe evidence that Lownsdale’s right to tbe land, including block W, did not accrue until after tbe purchase' from Pettygrove in 1849; consequently, Lownsdale bad not, at tbe time be and wife gave tbe deed, resided on and cultivated tbe land for four years, as tbe law of 1850 required to perfect a right to tbe land. This disposes of this part of tbe case in favor of tbe defendants. We here remark that, as this question is settled by tbe evidence, tbe court does not intend to express an opinion as to what would be its bolding bad tbe facts been as claimed by tbe complainant, as that would involve questions of importance affecting our land system in this State. These questions are left until they are more fully presented.

There is another matter relied on by tbe plaintiff, which is, that tbe deed of Chapman to Lownsdale estops tbe title to Mrs. Chapman, she having bad notice of tbe deed before her title from tbe United States government became perfected. • On this point tbe evidence leaves tbe question of notice in doubt. We think it makes no difference whether she bad notice or not. This land having been lawfully granted to her, and she being a married woman, tbe title cannot be taken from her, except by her deed properly executed.

The decree is affirmed.  