. SHIVELY v. WELGH. 29
John M. Shively and wife; and if he was, upon his abandonment of all such
claim thereto in 1860, and before he was entitled to the grant, his wife had no
interest in it or the consideration received therefor.
3. Conveyance T0 Om: Pmzson upon A Cousrnsnnron Movnm rnom Auornna.
ln 1860 John M. Shively, in consideration that James Welch abandoned his
claim to be a "settler" upon the former’s donation claim, conveyed a certain
‘ portion thereof to said Welch, and a like portion, including blocks 5 and 13, in
"Shive1y’s Astoria," to his wife Nancy. Held, that Nancy did not hold said
blocks under her husband, but the grantor, Shively, and therefore she was cn-
titled under the acts of 1872 and 1874 (Sess. Laws, 129, 76) to purchase the tide
land in front of said blocks, although her husband had quitclaimed the same
to Shively in 1850.
Suit to Declare the Defendants Trustees, and for a Conveyance.
Frederick K. Strong, for plaintiff.
E. O. Bronaugh, for defendants.
DEADY, J. This suit was brought by the plaintiff, John M. Shively,
to have the defendants, Nancy Welch, James W. Welch, Joseph N.
Dolph, and W. W. Upton, declared to be the trustees of the plaintiff
for certain tide lands conveyed to said Nancy by the commissioners
for the sale of school lands, under and by virtue of the act of October
28, 1872, (Sess. Laws, 129,) on August 28, 1876-the same being
known as block 111, in front of shore block 13, in the town of As-
toria, Oregon, and the west half of each of the blocks 41, 46, and
145, lying in front of the west half of block 5 in said town, and of
the alleged value of more than $5,000. The cause was heard on a
demurrer to the amended bill, from which latter it appears that in
March, 1844, the plaintiff, John M. Shively, was a “settler," under the
laws of the provisional government, on a tract of public land on the
south bank, and near the mouth, of the Columbia river, containing
640.56 acres, and laid off a town thereon, containing 121 blocks, di-
vided into lots, and extending from ordinary high water to the south-
ward, and commonly known as "Shively’s Astoria;" and on April
  18, 1845, he bargained and sold, by an instrument in writing, to James
Welch the undivided one·half of said land and blocks, except about
20 lots; that prior to March 13, 1850, the plaintiff, with the consent
of Welcli, laid off additional blocks, numbered from 122 to 150, both
inclusive, the same being situate almost wholly in front of said tract
of land, and between ordinary high and low water mark; and on said
day said Shively and Welch divided the premises, so far as surveyed
into blocks, between them, and by their deeds quitclaimed the same
to each other; that upon the passage of the donation act (September
27, 1850, 9 St. 497) the plaintiff became and was a qualihed married
"settler" on said land under said act, and had been such settler for
more than four years prior thereto, to the knowledge of said Welch,
who, nevertheless, now disputed the plaintiffs right to hold said land
as a donation under said act, by reason of the premises; and for the
purpose of settling said dispute, on February 18, 1860, the plaintiff .
and his wife, Susan L., in pursuance of an arrangement with said
Welch to that effect, conveyed by deed, with a general warranty, to