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MCCUNE v. ESSIG

November 29, 1905

MCCUNE
v.
ESSIG



APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT

Fuller, Harlan, Brewer, Brown, White, Peckham, McKenna, Holmes, Day

Author: Mckenna

[ 199 U.S. Page 386]

 MR. JUSTICE McKENNA delivered the opinion of the court.

Suit in equity to establish title in appellant to an undivided one-half of northwest quarter of section 6, township 25 north, range 30 east, Washington meridian 2, and for accounting of rents and profits and for partition between appellant and appellees.

It was originally brought in the Superior Court in and for Lincoln County in the State of Washington. A demurrer was filed to the amended complaint and a petition to remove the suit to the Circuit Court for the District of Washington, Eastern Division, on the ground that the suit involved the construction of sections 2291 and 2292 of the Revised Statutes of the United States, and of all statutes of the United States relating to homesteads. The suit was removed. In the Circuit Court a motion was made to remand, which was denied. The demurrer was sustained, and appellant, electing to stand upon her bill, it was decreed that she had no right, title or interest in the land. 118 Fed. Rep. 273. The decree was affirmed by the Circuit Court of Appeals. 122 Fed. Rep. 588.

The facts as exhibited by the bill of complaint are that appellant is the daughter of William McCune, deceased, and his wife, Sarah McCune, now Sarah Donahue, and the stepdaughter of Daniel Donahue, who appears as her guardian ad litem. William McCune and his wife Sarah settled on the land in controversy, it being a part of the public domain and subject to settlement under the homestead laws. On the fourth of April, 1884, McCune filed a claim to the land as a homestead in the proper land district. In the same year he died intestate,

[ 199 U.S. Page 387]

     leaving surviving as his only heirs appellant and his wife Sarah. They continued to reside on the land until December 17, 1889, upon which day the mother of appellant made the required proof of full compliance with the homestead laws, and on the sixth of March, 1891, a patent was issued to her. In the year 1892 she, having become Mrs. Donahue, sold and conveyed the land to appellees, who went into possession of it and have been in possession of it ever since. The value of the land is sixty-four hundred dollars. The patent recites:

"Whereas there has been deposited in the General Land Office of the United States a certificate of the register of the land office at Spokane Falls, Washington, it appears that, pursuant to the act of Congress approved May 20, 1862, 'to secure homesteads to actual settlers on the public domain,' and the acts supplemental thereto, the claim of Sarah Donahue, formerly the widow of William McCune, deceased, has been established and duly consummated, in conformity to law, for the south half of the northeast quarter and the lots numbered one and two of section six, in township twenty-five north of range thirty-eight of Willamette meridian in Washington, containing one hundred and sixty-three and eighty-four hundredths of an acre, according to the official plat of the survey of the said land returned to the General Land Office by the surveyor general:

"Now know ye, that there is, therefore, granted by the United States unto the said Sarah Donahue the tract of land above described, to have and to hold the said tract of land, with the appurtenances thereof, unto the said Sarah Donahue and to her heirs and assigns forever."

The action of the lower courts on the motion to remand and on the merits are attacked by appellant to a certain extent on the same ground, to wit, that the laws of Washington determine the title of the parties, not the laws of the United States. The interest in McCune, acquired by his entry, it is contended, was community property, and passed to appellant under the laws of the State. Sections 4488, 4489, 4490 and

[ 199 U.S. Page 3884491]

     of the statutes of Washington provide that property and pecuniary rights owned by either husband or wife before marriage, or that acquired afterwards by gifts, bequests, devise or descent, shall be separate property. Property not so acquired or owned shall be community property, and, in the absence of testamentary disposition by a deceased husband or wife, shall descend equally to the legitimate issue of his or their bodies. 1 ...


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