dissented upon the point as to the bar of the former proceedings; also, upon the point as to the effect of a conveyance of his interest without covenants, made by the donee under the donation act, after the initiation of his possession upon which the patent issues, and prior to- ' the passage of that act.
[On appeal to the supreme court, the decree of this court was affirmed. 94 U. S. 477.]
[NOTE. The case of Failing v. Stark, involving the same general facts as the principal case, was decided May 8, 1874, and is here reprinted by permission from 2 Sawy. 642. The opinion of the court was as follows:]
SAWYER, Circuit Judge. This is a bill in equity to restrain the defendant from prosecuting an action to recover the north half of lot three, in block twenty-seven in the city of Portland, and to procure a conveyance of the legal title. The general facts are the same as those fully set out in Starr v. Stark [Case No. 13,317], except that the first conveyance by which the possessory title passed out of the general claimants of the Portland land claim was by Coffin, Lownsdale, Chapman. Hastings and Baker to-J. T. Hobbs & Co.. Hastings and Baker claiming some interest subordinate to Chapman. This deed bears date March 14. 1850, and is, therefore, one of the lots sold in Lownsdale’s absence, and is embraced in the modified contract considered in Starr v. Stark. As to the question discussed in Starr v. Stark the equities in this case are, in all particulars, as strong as in that case, if not stronger. The testimony of Stark himself, given in another matter, -was introduced in this case, and he nowhere in this testimony denies that he acquiesced in the modifications to the agreement of March 1. between himself and Lownsdale, made by Chapman and Coffin. He states that Coffin and Chapman ratified the agreement with the modifications; and that he went into the undisputed IKissession in accordance with that agreement. The plain inference from his own testimony is, that he acquiesced in it. He nowhere in his-deposition denies Couch’s authority. It is perfectly clear,.from all the testimony, that he did accept the modifications made by Coffin and Chapman, and acted upon them as valid. If he expected any money consideration after this modification as to lots sold subsequent to January 1, 1850, he evidently looked to Lowns-dale individually for it, and not to Coffin and Chapman. If he did not obtain it, it was a matter between him and Lownsdale personally. • There is no defense of res adjudieata set up in this case.
The only other questions arise on defects in the mesne conveyances. Without discussing them in detail, suffice it to say, that a valuable consideration was always paid, and the actual possession passed and continued in the several purchasers with the acquiescence, and without any subsequent claim on the part of the vendors. and enough appears to show that the equitable title of the various, intermediate holders from Lownsdale, Coffin, Chapman, etc., became fully vested in complainant.
Let a decree be entered in favor of the complainant in pursuance of the prayer of the bill with costs.
DEADY, District Judge, dissented on the second point indicated in his dissent in the case of Starr v. Stark [supra].
E. D. Shattuck, for complainant.
W. W. Page, for defendant.
[The case of Bacon v. Stark also involving the same facts as the principal case, and also decided May 8, 1874, is here reprinted by permission from 2 Sawy. 644. The opinion of the court was as follows:]
SAWYER, Circuit Judge. This action embraces the south half of lot four, in block eighty-one, and is, in all essential respects, similar to the cases of Starr v. Stark [Case No. 13,-317], and was submitted on the same testimony, so far as the litigated points are concerned, ex*1131cept that in this case it is not pretended that the former action is a bar to complainant Bacon’s action. On .the authority of Starr y. Stark [supra] a decree must be entered for complainant, with costs, and it is so ordered.
DEADY. District Judge, dissented on the •second point indicated in his dissent in Starr y. Stark [supra].
J. N. Dolph and William H. Effinger, for complainant.
Wm. Strong and Bronaugh & Catlin, for defendant.