Opinion of the Court---Deady, J.

[November,

therefore, neither they nor their grantee, Mizner, can maintain this action, unless he could if living. If the premises are correct, the conclusion follows. Let it be assumed, then, for the present, that the children of Daniel H. took as his heirs and not as donees of the United States-or, in other words, that he died seized of an estate of inheritance, could he, if living, have maintained this action? Counsel for the defendant admit that he could, being the owner of the legal estate, unless he would be barred by the statute of limitations.

This question involves the inquiry, when did the title vest in Daniel H., and thereby give him a cause and right of action against an adverse occupant; and what is the nature and effect of the occupancy of the premises as shown on behalf of the defendant?

It is the settled law of this court, until otherwise determined by a superior, that a settler under the donation act had a present grant by force and operation of such act from the date of his settlement, unless such settlement preceded in point of time the passage of the act, in which case the grant took effect from the date thereof, and not before. (Fields v. Squires, 1 Deady, 378.) This being so, Daniel H., if living, might have maintained this action, even admitting that the defendant by himself, or those with whom he is in privity of possession, had been in the continuous, open and adverse possession of the premises from the date of the grant by the United States to Daniel H., up to the commencement of this action, because he would have been seized at the date of such grant, which was within twenty years prior to the bringing of the action.

In Doswell v. De la Lanza et al., 20 How. 32, the defendants were in possession of the premises in controversy, without title, prior to the seizin of the plaintiff, and the court said that "in regard to him, they cannot be considered as having ejected him by their entry, his legal title not having then accrued."

The defendant entered without title, and has never acquired any, and unless there has been a continuous adverse occupation of the premises for twenty years by him, or

1872.1

Opinion of the Court--Deady, J.

those with whom he is in privity, the plea of the statute of limitations cannot be upheld. It is urged, however, that for the purpose of preventing a recovery in this case, and protecting the defendant in his possession, the court ought to hold that the title of Daniel H. took effect by relation from the date of his settlement in 1848.

The insuperable objection to this proposition is, that the occupation of Daniel H. was not commenced under the act making the grant, and, prior to its passage, had no relation to it whatever. (Fields v. Squires, supra, 378.) In Gibson v. Choteau, 13 Wall. 101, Mr. Justice FIELD, delivering the opinion of the court, says: "The doctrine of relation is a fiction of law adopted by the courts solely for the purpose of justice, and is only applied for the security and protection of persons who stand in some privity with the party that initiated proceedings for the land, and acquired the equitable claim or right to the title."

Now, if the defendant had entered under Daniel H., or claimed an interest in or right to the land, in pursuance of some contract made with the latter while he was in the occupation of the premises, there would be some propriety in holding that the grant to Daniel H. took effect by relation from the commencement of such occupation, if that were necessary to protect the defendant's rights under such entry or contract. But in the case at bar, the application of the fiction of relation would work an injustice rather than otherwise. The defense is simply an adverse possession for twenty years. There is no privity between the parties to this action. Vaughn and those under whom he claims are strangers to Daniel H. and his title. So far as he and his children are concerned, they are and always were mere intruders upon the premises.

As was said by the court, SAWYER, C. J., in the opinion in the equity suit above mentioned:

"There is no direct contract relating to these lots, either verbal or written, upon any consideration moving between the parties, Lownsdale and complainant Vaughn, or any of the latter's grantors. * He (Lownsdale) never purchased the lots, and never had or claimed any in

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Opinion of the Court-Deady, J.

[November,

terest in them, till he acquired an interest under the said donation act. It was, therefore, a matter of no concern to him what use was made of them by the parties in possession, before he himself acquired any rights therein, and he had no occasion to object to, or interfere with, the action of the possessor, or the claimants under Pettygrove," (ante, —.)

But it is not admitted that Vaughn's possession has any of the elements necessary to make it a bar to this action, even if the grant to Daniel H. were held to take effect by relation from September 22, 1848, the date of his occupation.

In the first place, he is not shown to have any privity with any one that ever was upon or about the premises, either by deed or actual possession, except Stephens, as to lot one in block five. In that instance the evidence shows that Vaughn obtained a deed from Stephens, the grantee of Pettygrove and Stark, on September 26, 1856. But admitting that Stephens occupied the lot adversely to Daniel H. for some years after the grant to the latter, there is no evidence as to the character or even the fact of Vaughn's possession.

As to lot three in block five, there is no direct evidence that the defendant ever had possession of it, or that he is connected by deed with Pettygrove. A deed, dated September 24, 1858, for this lot, executed by Thomas Smith as guardian of his minor son, A. C. Smith, the grantee of Albert E. Wilson, aforesaid, to the defendant, was offered in evidence, but not admitted, for want of authority in the guardian to make the sale. So it is probable that the defendant's claim to this lot does not go back farther than that date.

Lot 8 in block 5 was attempted to be conveyed to defendant on February 17, 1857, by Gilbert and Rockwell, the successors in deed to Hugh O'Bryant, Pettygrove's grantee, by Pomeroy, as their attorney in fact; but no authority to Pomeroy being shown, the deed was not admitted. There is no testimony to show that the defendant ever actually occupied the lot, and his claim to it probably

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1872. }

commenced at the date of this supposed deed from G. and R., and grew out of it.

Lot 2 in block 15 is not shown to have ever been claimed or occupied by the defendant, and there is no proof that he is the successor by deed or possession of Pettygrove or his grantees. The south of lot 4 in block 2, on which there are valuable improvements, was purchased of Anderson in 1855, but how long prior thereto, and under whom or what circumstances he occupied it, does not appear. The defendant testifies that he has been in actual possession since the purchase from Anderson, but makes no proof that he is the successor by deed or possession of Pettygrove or his grantees.

As to the claim under which the defendant occupied the lot, it may reasonably be inferred from his deposition and the statements in his cross-bill aforesaid, that he regarded Daniel H. as the legal owner of the property, but expected to get a title from him in pursuance of a certain bond given by Daniel H. to Pettygrove upon the abandonment of the land claim by the latter; and it is probable that all the other lots in controversy were claimed under the same circumstances and expectation.

Upon the evidence, then, there is no ground to maintain that Vaughn or any one with whom he is in privity either by deed or possession, taken separately or together, had occupied any of these premises in any manner continuously for twenty years before the commencement of this action, unless it be lot 1 in block 5, and in that case, admitting all that is claimed for the defendant, the possession of himself and predecessors could not be held adverse to the title of Daniel H. before it came to him from the United States by the passage of the donation act on September 27, 1850.

The defendant in the actions by Lamb and Squires is entitled to judgment that they take nothing by said actions. and for costs; and the plaintiff, Mizner, is entitled to judgment for the possession of an undivided three fourths of the premises, and for costs.

1. SEAMAN INFECTED WITH CONTAGIOUS DISEASE, RIGHTS OF.-A sick seaman is entitled to be cared for and cured at the expense of the ship, and the fact that his disease is malignant and infectious, will afford no justification or excuse to the master for setting him ashore, without any provision for his care, his subsistence, or his proper medication.

Before HOFFMAN, District Judge.

The facts sufficiently appear in the opinion of the court. D. T. Sullivan, for libellant.

Hambleton & Gordon, for respondent.

HOFFMAN, J. As to the material facts in this case, there is no substantial controversy.

On the second of October, 1868, the libellant, Thomas Tomlinson, a seaman on board the steamship Pacific, was found to be ill of the small-pox. The steamer was then at Gardner City, on the Umpqua river, where she had arrived on the preceding day.

The captain, on learning the nature of the libellant's malady, informed him that it was impossible to afford him proper treatment on board the ship, but that he had secured the services of a physician, and provided for the necessary attendance upon the libellant, at Scottsburg (a town about fifteen or twenty miles further up the river), and that he had a boat in readiness to take him there.

The libellant replied that he was willing to go if proper provision had been made for taking care of him; but, if not, that he would remain on board the ship. He was assured by the master, as he says, that all necessary arrangements had been made. He thereupon went into the boat, and was rowed up to Scottsburg, by a man hired for the purpose by the respondent.

On arriving at Scottsburg, the libellant inquired of the