The Dollar Deed: How a Husband’s ‘Gift’ to His Wife Cost Him His Land Claim

Decision of Register and Receiver of Olympia Land Office.

1. A Donation claimant cannot abandon his claim to make a pre-emption. 2. A settler claimed as prior will not be regarded as commenced, during the time the party resides upon other land with his family. 3. A pre-emptor may absent himself upon necessary business, without forfeiture of his right.

W.S. Fish vs. Claim for Pre-emption J.M. Sates.

The parties claim the S.W. quarter of section 10, Township 11, N. Range 5, W., the former alleging settlement Jan 1, and the latter March 1, 1850. (Sates filed his declaratory statement March 16th; Fish on the 14th of March 1850.)

By the 10th section of the pre-emption act of 1841 it is provided, 'that no person who shall quit or abandon his residence on his own land to reside on the public land in the same State or Territory, shall acquire any right of pre-emption under this act.'

The oath of W.S. Fish, filed with his donation papers, in this office, on the 14th day of March, 1850, shows that he was, on the 29th day of March, 1850, personally residing upon and cultivating his donation claim, and the evidence adduced on both sides shows, that he has never ceased to reside on what was then his own residence, on his own land.

The deed by which he conveyed to Naomi Fish, his wife, for the sum of one dollar, his donation claim and improvements for the term of her natural life, was not dated until March 24, 1850.

Without entering into the validity of this deed, it seems evident that he cannot date his residence on the pre-emption claim further back than the 24th of March, and is not therefore the prior settler. It is our opinion that he was not, according to the evidence, at any time, entitled to the tract in dispute, as it is shown that he has been, and is now, residing with his wife, on what was or is his residence on his donation claim.

It has been shown to our satisfaction that the defendant, James M. Sates, was the prior settler, and has otherwise complied with the provisions of the law.

By temporary absence, he did not forfeit his pre-emption right.

There are few claims in this Territory which will furnish a support to the settler for the first year or two, and claimants must therefore depend upon working for means to carry on their improvements. Any other construction of the law would preclude all but men of capital from obtaining land under the provisions of the pre-emption law.

We therefore decide that the plaintiff W.S. Fish has failed to prove priority of settlement, or compliance with the provisions of the law, and that the right of pre-emption is therefore in the defendant Sates.