Argument for Appellees.

199 U. S.

282; Shepley v. Cowan, 91 U. S. 330, 337; Sturr v. Beck, 133 U. S. 541, 550; Nor. Pac. Ry. Co. v. McCormick, 89 Fed. Rep. 659; Witherspoon v. Duncan, 4 Wall. 210, 218; Bardon v. No. Pac. R. Co., 145 U. S. 535; Hastings & Dak. R. R. Co. v. Whitney, 132 U. S. 357; United States v. Turner, 54 Fed. Rep. 228; Burlington &c. P. Co. v. Johnson, 16 Pac. Rep. 125.

The laws, the construction of which appellees claim are involved in this case, simply provide the manner in which a patent may be obtained. In Bernier v. Bernier, 147 U. S. 242, and Hutchinson Co. v. Caldwell, 152 U. S. 65, there was no question of state statutes.

Under the doctrine of relation, a patent for a preemption takes effect from the time of settlement. Section 3 of the act of May 14, 1880, 21 Stat. 140, provides that patent for homesteads shall relate back to the settlement the same as in preemption. Cases supra and Gibson v. Choteau, 13 Wall. 92.

If the decision of the Circuit Court of Appeals is correct there can be no such thing as community property in land acquired by patent and the patentee can convey without the wife, or husband, as the case may be, joining in the conveyance as required by the laws of the State of Washington.

If this court has jurisdiction it will be bound by the rule laid down in the state court, as determinative of the rule in the State, that when title is initiated during the community and perfected after dissolution the property is community. Lowndes v. Huntington, 153 U. S. 1; United States v. Fox, 94 U. S. 315; Arndt v. Griggs, 134 U. S. 321; Investment Co. v. Caldwell, 152 U. S. 65. Hall v. Russell, 101 U. S. 503 does not apply to this case.

Mr. George Turner, Mr. F. H. Graves and Mr. W. G. Graves for appellees:

Prior to patent, or, at least, prior to a full compliance with the conditions which entitle him to a patent, the settler has no more than a right of possession and a right to be preferred in

199 U. S.

Argument for Appellees.

the purchase of the lands. As against the United States, the owner of the lands, he acquires no vested right until he has fully complied with the requirements of the act, and Congress may at any time vest title in another. Shiver v. United States, 159 U. S. 491; Campbell v. Wade, 132 U. S. 34; Wagstaff v. Collins, 97 Fed. Rep. 3; Frisbie v. Whitney, 9 Wall. 187; Shepley v. Cowan, 91 U. S. 330; Gonzales v. French, 164 U. S. 338, 345.

No doubt this right is, in a sense, a property right. But it is held at the will of Congress; it may be forfeited for noncompliance with existing laws, or taken away by changes in those laws. It therefore becomes subject to state regulation only in so far as Congress permits. Anderson v. Carkins, 135 U. S. 483; Hall v. Russell, 101 U. S. 503, 513, 514.

Section 2291, Rev. Stat. is not a statute providing for the descent of property. Where a settler upon the public lands dies prior to completing the necessary period of residence, those who succeed to his right acquire it not by descent from him, but as direct donees from the United States. Hall v. Russell, 101 U. S. 503; Maynard v. Hill, 125 U. S. 190, 215; Cutting v. Cutting, 6 Fed. Rep. 259; Stubblefield v. Manzies, 11 Fed. Rep. 270; United States v. Tichenor, 12 Fed. Rep. 421; Hershberger v. Blewett, 55 Fed. Rep. 177; Cooper v. Wilder, 111 California, 195; Wittenbrock v. Wheaton, 60 Pac. Rep. 664.

The right of a settler is a personal one and those designated by Congress to succeed to the right take as original grantees and not through him, and therefore the right is not amenable to the laws of the State where the land is situated when the settler dies. Cases cited supra; Towner v. Rodegeb, 33 Washington, 153; Rogers v. Clemans, 26 Kansas, 552; Dawson v. Mayall, 45 Minnesota, 408; Cooper v. Wilder, 111 California, 195; Gjerstadegen v. Van Duzen, 7 N. Dak. 612; Chapman v. Price, 32 Kansas, 446.

The doctrine of relation has no application in this case. McCune v. Essig, 118 Fed. Rep. 273, following Gibson v. Chouteau, supra, which held that doctrine to be merely a fiction to

VOL. CXCIX-25

prevent injustice to persons standing in privity and having equitable interests which do not exist in this case. As to the state law, see Bolton v. Water Power Co., 10 Washington, 246. This court has no jurisdiction. Anderson v. Carkins, 135 U. S. 483; Bernier v. Bernier, 147 U. S. 242; Investment Co. v. Caldwell, 152 U. S. 65.

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,

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

4491 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 Ballinger's Codes. Relying on these provisions the argument of appellant is, and we give it in the words of her counsel:

"When William McCune entered this land he had not the legal title, but he had an immediate equitable interest and the exclusive right of possession until forfeited by failure to carry out the terms of his entry. United States v. Turner, 54 Fed. Rep. 228.

"The terms of his entry were carried out. The patent issued by reason of his entry. The state legislature had the right to direct to whom that equitable right and interest should pass. If the rights and interests under that entry had been forfeited, the state law would have no effect upon the title to the land. That equitable interest ripened, and was confirmed by the patent.'

But this is begging the question. What interest arose in McCune by his entry, who could upon his death fulfil the conditions of settlement and proof, and to whom and for whom title would pass, depended upon the laws of the United States. Bernier v. Bernier, 147 U. S. 242. The motion to remand was rightly overruled. On the merits we think the ruling of the lower courts was also right. Hutchinson Investment Co. v. Caldwell, 152 U. S. 65. Hoadley v. San Francisco, 94 U. S. 4, and other cases relied on by appellant, are not in point.

Chapter five, Title XXXII, of the Revised Statutes provides who may enter public lands as a homestead and the conditions to be observed as to entry and settlement. By sections 2291 and 2292 it is provided as follows:

"SEC. 2291. No certificate, however, shall be given, or patent