Linnville v. Smith

By the Court, Boise, J.:

The main question in the case, is as to whether the donation land claim named in the complaint was the separate property of the plaintiff. This claim was held under the fifth section of the act of twenty-seventh of September, 1850, and it is claimed by the appellant that as the common law was in force in Oregon at the time of settlement and notification, the husband, by virtue of his marital rights, became on settlement on the claim vested in a life estate in the land, and became the absolute owner of the use of the land for his life, and that the wife had only a reversionary interest, to accrue to her on the death of her husband. "Whatever construction may be given to the act of September 27, 1850, it will not, as we think, affect the rights of the parties to this suit. For on the twentieth day of January, 1852, the legislature of Oregon passed an act providing “that all right and interest of the wife in land donated by said act of twenty-seventh September, 1850, should be secured to the sole and separate use and control of the wife, and that she should have to her own use the rents and profits thereof, and that such land should in no manner be made liable to the debts of the husband.” This act was in force at the time of the settlement and notification on said *204 aucl claim, and operated to make the plaintiff’s half of said claim separate property.

It is claimed by the appellants that the repeal of this act in 1853 divested the plaintiff of her separate rights to this property. It is a general rule that the repeal of a laAv does not affect rights acquired under it, if the same are executed and not inchoate. Puffendorff says the laAv itself may be disannulled by the author, but rights acquired by virtue of that laAv while in force must still remain. (Smith on Statutory and Constitutional Construction, 895, sec. 775; also 881, secs. 760, 761.)

The plaintiff in this case became invested with the title to this land from the date of the notification, Starr v. Starr, 6 Wallace, 402, and by the operation of the statute she took the property to her sejiarate use, if not under the donation law, at any rate under the act of the legislature. For there Avas nothing in the act of congress that limited her rights in this respect, and she took it under the law as absolutely as she could under a deed declaring it to be to her separate use, and the land was vested in her and the grant executed, and not executory or inchoate.

This vieAv disposes of the only important question in the case. That the land in controversy in this case was deeded to the husband without her consent does not affect her right to it, as it was paid for with her money, and with the understanding by her that she was to have the deed made to herself. Under such circumstances, her husband would become her trustee, and she would be the owner of the land in equity. (21 Ohio, 547; 15 Barb. 276 ; 13 Cal. 494 .)

In the argument of this case considerable discussion was had by counsel relative to the rights of a wife in her portion of a donation claim as to the matter of it being her separate property, and it was claimed by counsel for plaintiff that by the operation of the donation law the wife’s half of a donation claim is separate property, and also that it is made such by the constitution of the state. These questions are of great interest to the people of the state, as they affect a large portion of the real estate of the country, and many important interests rest on the determination of these *205 questions. The general understanding of the people has been that the wife’s portion of a donation claim is separate property, and it has been generally treated as such. But the matter has not as yet been adjudicated by this court, and we do not feel called upon to determine it in this case, the discussion of which is placed in this court, as in the court below, on the statute of 1852 above referred to.

The decree of the circuit court will be sustained.