Prior discovery and an actual or constructive appropriation is the origin of title
even in governments themselves. For communities situated like that in the early
settlement of Oregon, no rule could be adopted which would better subserve the
public interest than to treat prior occupancy as giving a provisional title to lands
in reasonable quantities and under proper restrictions, and thereafter, until the
real title can be obtained from the government, deal with it as between individuals
in all respects as if the prior occupancy originated and vested a title in fee. This
is the natural order of things, and affords a rule of conduct consonant with the
ordinary course of dealings, and the common experience of mankind in organized
communities."
Proceeding upon this broad basis, the judge cited the circumstances of the case in hand ; the Portland land claims were taken up, lots sold, improved and lived upon. The party thus occupying acquired possession as against all but the true owner — the United States. This right could be transferred by sale like any other.
"Lownsdale was, on March 30, 1849, i^ possession of the six hundred and forty acres, except certain lots already sold. On that day two instruments were executed, each evidently a part of one and the same transaction, between Lowns- dale and Coffin, forming a partnership, by which the legal title was to be vested in Coffin, but to be held in trust for the joint benefit of the two. All profits of sale were to be divided, every exertion made to acquire title, each paying half of expenses, and upon dissolution Coffin is to convey one-half to Lownsdale of whatever he may have under title. In this agreement Lownsdale and Coffin were to own each a half interest in all the six hundred and forty acres, except certain lots already sold to various parties as town property ; but every exertion was to be made to gain a title to the whole six hundred and forty acres, not excepting those lots — showing that they claim no further interest in those lots, but were to get title to them for the benefit of those to whom the lots had been sold.
"When, in 1849, Chapman was admitted, the three partners were to have an equal interest in the property, excepting town lots already sold previous to this date as town property ; and, in 1852, when the section had to be divided up in severalty, so that the proprietors might obtain a title on their own individual account, as provided by the Donation Act, they make an agreement in which they set forth the fact that they have already obligated themselves to make to their grantees a general warranty deed whenever they, as grantors, shall obtain title from the United States, and bind themselves again to make such deeds to the original grantees, their heirs, assigns, etc., whenever they should get the patents for which they were then taking steps to obtain.
"Whenever a new partner was admitted it was expressly provided that the lots already sold should be excluded from the use of the partners, but that the title must be got for all. Whence it follows that acquisition of title was for the benefit of the purchasers, and not of the vendors — partners — only."
It was also further held by Judge Sawyer that although Lownsdale only promised to give the deed when he got a title, and was under no compulsion by that promise to get a title, yet nevertheless that when he did proceed to obtain a patent, although voluntarily, he was not thereby relieved of the trust which rested in his promise or covenant, but that the trust, having passed from the covenant, now vested in the title, which he procured ; and the title thus acquired was in pursuance of the covenant, and therefore for the benefit of the parties designated in the covenant. Moreover, it could not be allowed that Lownsdale was receiving any new valuable consideration from the vendees when he agreed to acquire for them a deed for lots previously purchased and paid for, since the only possible value derivable to him from such deed, or promise of it, would be to prevent purchasers going forward to make a claim to their lots in their own name, under the donation act, and thus allow him an opportunity to file on the whole claim and get legal title to the whole of it, to the exclusion of the owners or purchasers of the lots. But that would be a pre
