Batchelder v. Willey

64 Cal. 44 | Cal. | 1883

Sharpstein,

J.—In 1877 the petitioners filed in the office of the surveyor-general of the State applications to purchase certain school lands in Mendocino County. Within sixty days thereafter other applications to purchase the same lands were filed, and the contests were certified to the District Court of the twenty-second district, in which decrees were entered in favor of petitioners on the 27th of December, 1879. On the 14th of November, 1882, Pfankuch and Knox caused certified copies of said decrees to be filed in the office, and afterwards made applications to purchase said lands, which applications were filed in the office of the surveyor-general on the 6th day of January, 1883. On the 2d of March, 1883, the petitioners filed in the surveyor-general’s office copies of said decrees and demanded an approval of their said applications, which the respondent refused. For the purpose of procuring such approval, a writ of mandate is prayed.

It does not appear that the petitioners took any steps in the premises after the entry of decrees in their favor December 27, 1879, until the 2d of March, 1883, when their petitions to purchase the lands were filed. Between these dates a period of more than three years elapsed, during which, the petitioners were quiescent. In the meantime certified copies of the final judgments were filed by other parties, the petitioners’ applications approved, and more than a year after such approval, the parties who had caused copies of said judgments to be filed, filed applications to purchase said land.

The conclusion at which we have arrived renders it unnecessary to pass upon any of the questions discussed by counsel except one, and that is, whether the petitioners did not forfeit the rights which they acquired under the judgments entered in their favor by not paying twenty per cent of the purchase money within fifty days after the issuance of certificates of location to them. Such certificates were made out and notices thereof deposited in the postoffice addressed to them at Point Arena, Mendocino County, although it was known to the surveyor-general that their postoffice address was Marysville, Yuba County. The Code does not provide for the giving of notices in such cases. If it did, a compliance with its provisions might be indispensable. As it is, we attach no importance to the fact that a notice addressed to the petitioners was mailed. We do not think there Avas any occasion for the service of any notice upon the petitioners. They had succeeded in the contest before the District Court, and Avere entitled “ upon filing Avith the surveyor-general or register, as the case may be, a copy of the final judgment of the court” to have the surveys or location approved, or to have certificates of purchase or other evidences of title issued in accordance Avith such judgment. (Pol. Code, § 3416.) But they suffered more than three years to elapse before they attempted to file a certified copy of said judgments in said surveyor-general’s office. And it was not until tAvo years after the entry of said judgments that any copy of them Avas filed in said office. The Code does not specify any time Avithin Avhioh such a judgment must be filed, nor does it specify by AArhom it may be filed. And we cannot see that it Avould make any difference by Avhom it Avas presented for filing. As soon as it Avas filed in his office it became the duty of the surveyor-general to approve the survey or location, or of the register to issue a certificate of purchase or other evidence of title. This Avas done more than a year before the applications of other parties to purchase Avere filed and approved. If no contest had arisen the petitioners Avould have had fifty days, and no more, after the date of the • certificates of their local ions, within Avhich to pay t-Aventy per cent of the purchase money. (Pol. Code, § 3494.) Hot AAÚthin fifty days after receiving notice of the issuance of such certificates, but within fifty days after the dates thereof. This provision applies to all applications for the purchase of such lands, and there is no reason for holding that in case no contest arises, applicants must pay tAventy per cent Avithin a definite period, but in case one does arise, the successful party shall have an indefinite time to make payment in, unless he files a copy of the judgment in the office of the surveyor-general, oris notified that some one else has filed such copy.

Application denied.

Myrick, J., Boss, J., Thornton, J., and McKee, J., concurred.