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BARNEY V. DOLPH, 97 U. S. 652 (1878)

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U.S. Supreme Court

Barney v. Dolph, 97 U.S. 652 (1878)

Barney v. Dolph

97 U.S. 652


After the passage of the Act of July 17, 1854, 10 Stat. 308, amendatory of the Act of Sept. 27, 1850, 9 id. 496, commonly known as the Donation Act, a husband and wife who, by reason of their residence and cultivation, were under the latter act entitled to a patent from the United States for land in Oregon could, before receiving such patent, sell and convey the land, so as to cut off the rights of his or of her children or heirs in case of his or her death before the patent was actually issued.

Ejectment by Dolph against Barney for certain land in Polk County, Oregon, on which John Waymire, a married man, settled, under sec. 4 of the Donation Act of Sept. 27, 1850, 9 Stat. 496, and which he and Clarissa, his wife, after they had made and filed in the proper office the requisite final proof of settlement, continued residence and cultivation, conveyed in fee by a quitclaim deed, bearing date Dec. 9, 1867, to one Riggs, under whom Dolph proved title.

Said Clarissa died before the issue of the patent. After its issue, said John executed a deed for the land to Barney, to whom, on the same day, Mary, a daughter of said John and Clarissa, also conveyed her interest in the land.

After Dolph had closed his case, Barney offered in evidence the deeds so executed to him, but upon Dolph's objection, the court excluded them, upon the ground that, by the deed to Riggs, said John and wife, then having full power of alienation, transferred the whole title to the land, and that no interest therein passed on her death to said John or said Mary. To this ruling Barney excepted. There was a verdict for Dolph, and the judgment rendered thereon by the circuit court for that county having been affirmed by the supreme court, Barney removed the case here, and assigns for error that the latter court erred in sustaining the ruling of the circuit court.

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