ERROR TO THE SUPREME COURT OF THE STATE OF OREGON.
MR. JUSTICE HARLAN delivered the opinion of the court.
This case involves the title to a tract of land in Douglas County, Oregon, containing forty acres, part of what is known
as the donation land claim of Jesse Applegate, number thirty-eight, in township twenty-two south, of range five west of the Willamette meridian.
The defendant in error, Daniel W. Applegate, holds under a deed executed to him by William H. H. Applegate and wife, dated October 8, 1874, and recorded October 31, 1874. He brought this suit in the Circuit Court of Douglas County, Oregon, to obtain a decree removing the cloud upon his alleged title created by a deed made to the defendant Dowell by a master in chancery, pursuant to an order of the Circuit Court of the United States for the District of Oregon, in a suit determined by that court in which Dowell was plaintiff and Daniel W. Applegate was one of the defendants. At a sale held in conformity with the final decree in that suit, Dowell became the purchaser of the land in question. That sale was duly confirmed, and a deed executed to him. From that decree of sale no appeal was taken.
Dowell bases his claim to the land upon the decree and orders in the above suit in the Circuit Court of the United States; and the controlling question before this court is as to the effect of that suit.
The state court did not give to the decree and orders in the Federal court the effect claimed for them; and it is necessary to a clear understanding of the grounds upon which it refused to do so, that we ascertain the precise nature of the proceedings in the latter court.
From the recitals in a supplemental bill filed by Dowell in the suit in the Federal court, it appears that that suit was commenced on the 11th day of October, 1879, in the Circuit Court of Douglas County, Oregon, and was subsequently removed into the Circuit Court of the United States for the District of Oregon. Upon whose application, or upon what grounds, it was so removed, the record before us does not clearly show. But it does appear that Dowell, on the 6th day of April, 1881, in order to conform his pleadings to the practice in the courts of the United States, sitting in equity, filed a bill in the Federal court disclosing the grounds of his suit. The defendants were Jesse Applegate, and his wife.
Cynthia Ann Applegate, William H. H. Applegate, Daniel W. Applegate, Peter Applegate, Sallie Long, John C. Drain, Jonas Ellensberg, and Charles Putnam.
The bill filed by Dowell made the following case: In a suit brought on the official bond of one May, Secretary of State of Oregon, executed September 6, 1862, -- his sureties being Jesse Applegate, O. Jacobs, and James Kilgore, -- judgment was entered, June 24, 1874, in favor of the State for the sum of $1622.50, and the costs, expenses, and disbursements of the action. That judgment was unsatisfied in whole or in part when Dowell brought his suit.
On the 4th day of August, 1874, in a suit instituted in the Circuit Court of Marion County, Oregon, against Dowell and Jesse Applegate, who were sureties on the official bond of May, dated August 4, 1866, for another term of the office of Secretary of State, the State recovered judgment for the sum of $8929.85, together with the costs, expenses, and disbursements of the action. That judgment was duly entered August 11, 1877, on the judgment-lien docket of Douglas County. Prior to June 27, 1878, Dowell paid on it the sum of $10,837.75; and, on that day, he recovered a judgment in the Circuit Court of Douglas County against Jesse Applegate, as his co-surety, for the sum of $4882.19, with costs, expenses, and disbursements. That judgment was also, and on the day of its rendition, entered on the judgment-lien docket of Douglas County.
A balance of $1385.61 due the State on its judgment was paid by Dowell, November 16, 1878. He gave notice, November 28, 1878, in conformity with the statutes of Oregon, that he claimed the benefit of the judgment of the State against Jesse Applegate for contribution for said sum, with costs and expenses, and that notice was duly entered of record. An execution was issued April 4, 1879, on the State's judgment, with costs, etc., and under it the lands levied on were sold, May 31, 1879, to Jesse Applegate for upwards of $1200. This left due to Dowell on that execution $284.61, with interest from May 31, 1879.
The amount due Dowell, January 1, 1881, from Jesse Applegate,
on both of the above judgments, with interest and costs, was $6584.09. Execution was issued, September 17, 1879, in his favor for $4882.31, and was duly returned "no property found." A second execution issued October 7, 1879, with a like result.
Jesse Applegate was, at one time, the owner in fee of the north half of a donation land claim, with a life estate in the south half that had been set apart to his wife -- such claim having been taken up in 1849 under the laws of the provisional government of Oregon, and afterwards under the act of Congress, approved September 27, 1850, entitled "An act to create the office of surveyor-general of the public lands in Oregon and to provide for the survey, and to make donations to settlers, of the said public lands." The tract of land so taken up contained 642 acres, and was known on the surveys and maps of the United States as Jesse Applegate's donation land claim No. 38, in township 22. He was, also, the owner of other lands in Douglas County, Oregon.
Dowell's bill referred to deeds purporting to have been executed in 1867 and 1869 by Jesse Applegate and wife to W. H. H. Applegate, Daniel W. Applegate, Peter Applegate, Sallie Applegate, and Charles Putnam -- children and grandchildren of the grantors -- for lands aggregating more than a thousand acres, a large part of which was within the above donation claim. It also referred to a deed executed June 24, 1871, by W. H. H. Applegate, conveying to Charles and John C. Drain, for $2000 in cash paid, 200 acres in the south half of that claim.
In respect of all of the above deeds the charge was that they were fraudulent and void as against the State of Oregon and Dowell; that the respective deeds to William H. H. Applegate and Daniel W. Applegate, dated in 1867, were antedated for the purpose of deceiving, cheating, delaying, and defrauding the State and Dowell, and were, in fact, not made and delivered until 1869. In respect to the deed of June 24, 1871, the charge was that the price paid by the grantee was $2000, "yet the deed, to conceal the value of the land and to cheat and defraud the creditors of Jesse Applegate
and to make the price correspond with the said deed of Jesse Applegate and his wife to the said William H. H. Applegate, on its face only expresses the consideration of $500, and it, in place of having a revenue stamp of $2, as was required by the act of Congress at the date of said deed, only has a revenue stamp of 50 cents on it." Dowell's bill also averred that all of said deeds were "illegal and a fraud under the statute of the United States entitled 'An act to provide internal revenue to support the government and to pay interest on the public debt,' approved 30th day of June 1864, and the amendments thereunto; that an inadequate consideration was expressed in each of said deeds by the grantors and grantees with the intent of evading the provisions of said statute; that the grantors and grantees well knew the land conveyed by each deed was at the date thereof worth in cash more than $1000, and each of them have a revenue stamp on them of 50 cents and no more, not one-half the amount required by said act of Congress, and the recording of each of them was in violation of the spirit-meaning of sections 152, 156, and 158 of said statute; that none of said stamps have been cancelled by writing the date when the deed was so used or stamps affixed on the same, and none of them have the initials of the person using them or affixing the same prior to the placing said deed on the records of Douglas County in the State of Oregon."
The relief sought by Dowell was a decree declaring the above-mentioned deeds to be illegal, fraudulent, and void as to him; ordering the sale of the lands described in the bill under the judgments in favor of himself and the State; that an account be taken of the rents, issues, and profits of each tract for the six years preceding the commencement of the suit; that the grantees be compelled to pay the rents, issues, and profits on the tracts severally deeded to them; and that plaintiff have such other relief as in equity and good conscience was proper.
Daniel W. Applegate, May 2, 1881, filed an answer to Dowell's bill, putting in issue most of its material allegations and denying that Dowell was entitled to the relief asked for in the bill. He denied that his deeds, or either of them, were
"a fraud under the statutes of the United States or any statute relating to internal revenue," or that the consideration was expressed in either of them with an intent to evade the provisions of that or any other statute. He admitted that each deed made to him had on it a stamp of fifty cents only, but alleged that stamps were put on each in good faith and without any intent to evade the requirements of the statute of the United States, and that the recording of such deeds was not in violation of any law.
He made no reference in his answer to, and, so far as the record before us discloses, did not introduce in evidence, the deed for the forty acres made to him, October 8, 1874, by William H. H. Applegate, although that deed is made by his bill ...