I concur in the conclusion reached in the opinion of the circuit judge. After careful consideration, and not without some doubt and hesitation, I have become satisfied that by force of the agreement of March 10, 1852, and the subsequent action of Lownsdale, Coffin and Chapman, under and in pursuance of it, that each of them took and obtained from the United States his separate portion of the land claim in trust for the purchasers or their ven-dees of any lots situated therein, and before that time sold by any or all of these parties.
Prom the passage of the donation act — September 27, 1850 — and prior thereto, Lowns-■dale, Coffin and Chapman had occupied and held this, land claim in common and made sales of lots throughout the extent of it; but on March 10, 1852, by means of this agreement, and with intent to conform to the provisions of said act and obtain the benefit thereof, they partitioned the claim between them, so that each was thereafter •enabled to proceed for himself and notify upon and obtain a donation of a separate parcel of the whole tract.
The donation act was a grant in praesenti. Bach of these settlers — Lownsdale, Coffin and Chapman, was upon the land at the date of its passage, and from that time is deemed to have an estate in fee simple in his donation, subject only to be defeated by a failure -on his part to perform the subsequent conditions of residence, cultivation and proof thereof.
This being so, it follows that at the date of this agreement either of these parties could impress a trust upon his donation in favor ■of any one. And even if it be considered that the settlers acquired no interest in the land until the partition and notification before the surveyor-general, still each one having acquired his separate portion of the common claim in pursuance and partly by means of this agreement, so soon as he did so acquire it, the trust provided for in it became an executed one, and might be enforced by the beneficiary thereof, although a mere volunteer from whom no meritorious consideration moved.
But I do not think that these lot holders are shown or can be presumed in any way to have contributed to the acquisition of the land claim from the United States by the settlers. In the first place, I have serious doubts whether any one could acquire title under the donation act to a less quantity of the public land than the smallest legal subdivision-forty acres. It is confidently believed that no attempt was ever made to do so. The act was framed and passed to meet the condition and wants of an agricultural community already upon the land and in occupancy of it, and made no provision concerning town sites or lots as such. The only town in the territory then of sufficient importance to be known to congress, was Oregon City, and this site was reserved for the benefit of a university, subject to the right of the purchasers of lots from the former occupant of the claim, to have the same confirmed and patented to them direct. Donation Act, § 11. But admitting that one of tírese lots or blocks might have been claimed under the act as a donation, there is no evidence that any of the persons claiming the lots in question, in March, 1852, was personally residing upon and cultivating it, as required by the act, and from the general and well known history of the country at this period, it is safe to assume that none could be produced. To acquire a title under the donation act, required, as a consideration, a servitude of four years personal residence upon and cultivation of the land claimed. In March, 1852, the future value of lots in Portland was very problematical. The class of people-who settle and build up new towns were on the wing. The rich gold, mines lately discovered in the southern part of the state were attracting much attention and measurably depopulating Portland and the region round about. Indeed, it is doubtful if one person in ten of the lot holders of that day would have taken any lot or block in Portland as a gift, upon the conditions of continued and personal residence and cultivation required by the donation act.
Again, it is judicially known to the court that, prior to the passage of the donation act, the title to all the lands in Oregon was in the United States, that in March, 1852, no one could have had any title to any portion of this land except under that act Lownsdale v. Parrish, 21 How. [62 U. S.] 290; Sparrow v. Strong, 3 Wall. [70 U. S.) 103. Therefore there can be no presumption that these lot holders had any interest in the lots except the bare possession, or were in any condition to claim them adversely or in opposition to the paramount occupation and title of the settlers. The lot holder occupied and claimed under and in subordination to the settler, and could only acquire title through him. *1008In the great majority of instances the settler was under written obligation of some kind to make title to the lot holder when he should acquire it
[NOTE. The .plaintiffs took an appeal in this case to the supreme court, which affirmed the decree of the circuit court. Mr. Justice Miller, who delivered the opinion, held that contracts made between actual settlers on the public land, concerning their mere possessing rights, were, as between the parties, valid and binding, and that this is true, though there was at the time no act of congress by which they might secure any title to the land. The provision of the Oregon donation act making void all future sales by settlers until patent issues, has no application to sales made before the passage of the act. In speaking of the use of the word “future” in the act, says 'the learned justice: “The act was, on its face, intended to cover settlements already made, and the careful limitation of this proviso to future contracts of sale; that is, sales made after the passage of the act, — raises a strong implication of the validity of such contracts made before the passage of the statute.” 18 Wall. (So U. S.) 307. For other suits by the same plaintiffs against other claimants of interest in the Portland land claim, see Oases Nos. 8,012, 8,017, 8,023, 8,024. For suits brought against these plaintiffs in the same matters, see Id. 4.709. 4,-775, 4,770. For suits brought by the plaintiffs for their interest under Nancy Lownsdale, see Id. 8,013, 8,021, 8,022.]From the view taken of the matter, I do not deem it material to consider whether the deed to Marshall is the deed of Lownsdale or Coffin. Upon this point I express no opinion. For whether it be the deed of either or both, the transaction was a sale of their interest in block 13 by one of the parties to the agreement of March 10, 1852, and therefore within the terms of the trust declared and provided for in the fourth covenant of that instrument.
Neither do I consider or decide the question whether Coffin became reinvested with the right of Marshall in or to block 13 by the redelivery to him of the Marshall deed in San Francisco. Upon the hearing counsel for the respondents in the cross-bill, expressly declared that they made no question as to the sufficiency of the mesne conveyances from Marshall to Davenport, and admitted, so far as they were concerned, that the latter might be considered as having acquired all the right that Marshall ever had in the premises.
I think the agreement of March 10. 1852, a valid instrument, and not within the prohibition contained in section 4 of the donation act against “all future contracts” “for the sale of the land” granted by the act. By its terms it appears to be a contract concerning the making of title to the parcels or lots of land already sold, and for aught that appears before the passage of the donation act. But if this were doubtful, good policy, it seems to me, requires that the instrument, as between the parties to it and in favor of those intended to be benefited by it, should be so construed and upheld.