[September, Opinion of the Court-Deady, J. title for lands which it purported to convey." In my judgment, this case furnishes the rule of decision for the one under consideration. The facts set up in the answer being contradictory of the patent upon the point in controversy, can not be given in evidence in this action at law, and, therefore, whatever may be their effect in equity, they do not constitute a legal defense thereto. There must be a finding for the plaintiff. OREGON AND WASHINGTON TRUST INVESTMENT Co. v. C. W. SHAW ET UX. AND CHARLES SWEGLE. CIRCUIT COURT, DISTRICT OF OREGON. SEPTEMBER 1, 1879. MERGER. The former ruling in this case affirmed on rehearing. (See 5 Saw. 336.) Before DEADY, District Judge. Ellis G. Hughes, for the complainant. W. H. Holmes and Claude Thayer, for the defendant, Swegle. DEADY, J. After hearing this cause on bill and the answer of the defendant Swegle, the court decided that the lien of Swegle's mortgage was never merged in the fee, and was prior to that of the complainants. Upon the petition of the complainant a rehearing was granted. After a careful study of the learned and voluminous brief of counsel for complainant, my conclusion is, that: 1. There never was any merger of the mortgage and fee in Shaw, because the two interests never were united in him, Shaw having transferred the Adams mortgage to Swegle some weeks before he received the conveyance of the fee from the former. 2. The transfer of the mortgage to Swegle by Shaw was valid as against Shaw, even if it was necessary to record it as against a subsequent bona fide purchaser of the same 1879.] Opinion of the Court-Deady, J. property, and therefore the mortgage remained the property of Swegle and could not be merged in the fee afterwards acquired by Shaw from Adams. 3. Even if the mortgage and fee had been united in Shaw, there was no merger, because Shaw, having transferred the former to Swegle, thereby plainly manifested his intent to keep the mortgage and fee separate, and therefore the mortgage to the complainant was at most only a conveyance or pledge of the premises, subject to the lien of the prior mortgage before then transferred to Swegle. 4. The statute of this state does not require a transfer or assignment of a mortgage to be recorded, particularly when such transfer occurs by operation of law, upon the indorsement or delivery of a promissory note for the payment of which it is only a security. 5. If the statute did require the transfer or assignment of a mortgage to be made after the manner of a conveyance, and recorded, still the failure to record such assignment would not render it void as against the complainant, because it is not a purchaser of the same property-the mortgage from Adams to Shaw-but only of the fee, subject to said mortgage, or rather of a mortgage thereon subsequent to said mortgage. 6. The complainant having taken a mortgage with notice upon the record that there was a prior unsatisfied mortgage upon the same property, to secure the payment of a negotiable note, not then due, has no right to complain if the lien of said mortgage is now preferred to its lien. Upon the record it took a second mortgage without inquiry as to the ownership or condition of the first one, and if it did so upon an impression that the prior mortgage was merged in the estate of its mortgagor, it acted, as appears, upon insufficient reasons, and must bear the consequences of its own mistake. ROBERT ALEXANDER V. SAMUEL B. KNOX, IN PLACE CIRCUIT COURT, DISTRICT OF Oregon. 1. COUNTY.-A county in Oregon is a body politic, and may, in the exercise of the powers given it by statute, take a note or bond and mortgage, and enforce the same by the ordinary legal proceedings in the courts. 2. SCHOOL FUNDS.-In 1858, the only fund which a county treasurer was authorized by law to loan was the common school fund in his custody, arising from the sale of sections 16 and 36, and in doing this he was the agent of the territory-the trustee of the fund-and not the county, and a suit to enforce the obligation of such note and mortgage should have been brought in the name of such treasurer. 3. PLAINTIFF.-A suit brought in the name of a plaintiff who is neither a natural nor an artificial person is a nullity, and therefore a suit by the "board of county commissioners of Lane county," in 1863, to enforce a note and mortgage given to the treasurer of that county upon a loan of school funds was a nullity, and could not support a decree for any relief. 4. JUDGMENT. The judgment of a court of general jurisdiction is presumed to have been rightly given, upon sufficient pleadings and process, until the contrary appears; and therefore, where it appears that a decree might have been given, either in a suit which was a nullity for want of a real plaintiff, or in another which was not, this presumption is sufficient to sustain the validity of the same. 5. JUDGMENT ROLL.-The certificate of the clerk is not evidence of the character or legal effect of the paper to which it is appended-as, for instance, that it is a copy of judgment roll, but only that it is a true copy of the original, on file in his office, and as to what it is, it must speak for itself. 6. CLAIM DONATION.-The boundaries of a claim, under the donation act, are a part of the public surveys of the country, and a description of a tract of land as a claim, number 70, in township 20 south, of range 3 west, is sufficiently certain in a decree, or elsewhere. 7. DONATION-WIFE'S SHARE.-Where a claim was taken up by a married settler, under section 5 of the donation act, after January 20, 1852, and the wife died before January 30, 1854, and before the completion of the resi dence and cultivation required by the act, her share of the donation was, by virtue of the act of January 20, 1852 (Ses. L., 64), her separate property, and upon her death descended to her heirs unaffected by any claim of the husband on account of the marriage, as directed by the common law. Before DEADY, District Judge. 1879.] Opinion of the Court-Deady, J. THIS action is brought by the plaintiff, a citizen of California, against the defendant, a citizen of Oregon, to recover the possession of a half section of land situate in Lane county, the same being the donation claim of Robert Alexander, and Sarah, his wife, numbered 70, and lying in sections 35 and 36, in township 20 south, of range 3 west, of the Wallamet meridian. The action was commenced against the tenant, George T. Sears, when, on his application, the landlord, Samuel B. Knox, was made defendant in his place. In the pleadings, each party alleges that he is the owner of the premises, and the other is not. The case was heard by the court without a jury. Addison C. Gibbs and W. Scott Bebee, for the plaintiff. DEADY, J. From the evidence it appears that the plaintiff went on the premises on September 1, 1852, as a married settler, under section 5 of the donation act, and resided upon and cultivated the same for four years, as required by said. act; and that his wife, Sarah, died thereon in 1853; that on September 27, 1867, the officers of the proper land office issued a patent certificate to said plaintiff and wife for said premises-the north half to the husband and the south one to the wife-and that on June 14, 1877, a patent for the premises issued in pursuance of said certificate; that on November 17, 1858, said plaintiff made his promissory note to the treasurer of Lane county for the sum of eight hundred dollars, payable three years from date, with interest at the rate of ten per centum per annum, and to secure the payment of the same, together with his then wife Susannah, on the date last aforesaid, executed and delivered to said treasurer a mortgage of said premises; that on October 8, 1863, a suit was commenced against said plaintiff and wife in the circuit court for said county to enforce the lien of said mortgage by filing a complaint therein, in the name of the "board of county commissioners of Lane county," and on the same day a summons likewise entitled was placed Opinion of the Court-Deady, J. [September, in the hands of the proper officer, who, on October 16, 1863, returned thereon that he had duly served the same on said plaintiff on October 9; that on October 30, 1863, for want of an answer, a decree was given in said court entitled Lane County, plaintiff, v. Robert Alexander, defendant, directing the sale of said mortgaged premises, and that the proceeds be applied to the payment of the costs and expenses of the suit and one thousand seventy-nine dollars and fifty cents paid to the complainant, with interest from date; that on September 1, 1866, in pursuance of said decree, said premises were duly sold to one J. W. Matlock for the sum of one thousand two hundred dollars, and on October 25, 1866, said sale was duly confirmed; that on July 27, 1867, in pursuance of said sale and confirmation, said premises were by the sheriff duly conveyed to said Matlock, who afterwards, on June 22, 1867, in consideration of the sum of one thousand and fifty dollars, conveyed to the defendant, Samuel B. Knox, all the interest of the plaintiff therein on September 1, 1866, and that afterwards, on March 20, 1867, said defendant, Knox, by means of proper conveyances, acquired all the interest in the premises of the six children and heirs to plaintiff's deceased wife, Sarah. The plaintiff puts his right to recover upon the ground that the decree upon which the premises were sold to Matlock is void, because: 1. The county of Lane had no power or authority to loan money or to take or own a mortgage; 2. The decree was given in a suit in which "Lane county" was the plaintiff, while it appears from the records that the only suit then pending upon said note and mortgage in said court for Lane county, was one in which the "board of county commissioners of Lane county" was plaintiff. Before considering those questions, it may be well to state the right of the plaintiff in the premises at the date of this mortgage, a point upon which there was some conflict and uncertainty in the opinion of the counsel. The donation act made no provision for the descent or disposition of the wife's share of the donation in case of her death before the completion of the residence and culti |