43 Cal. 569 | Cal. | 1872
By the Court,
Ejectment to recover a parcel of swamp and overflowed land. The plaintiff appeals from the judgment. It appears from the findings that the plaintiff purchased the land in 1855; that in 1856 he paid one year’s interest and received a certificate of purchase; that he made no further payment until 1865, when he paid all the interest which had accrued, except for two years, which the Legislature had remitted. The plaintiff never had the possession of the premises in controversy. Traverse, the defendant’s grantor, made application to purchase the land January 4th, 1858; caused a survey to be made; received and recorded a certified copy thereof; paid one year’s interest on the purchase money; and he, and the defendant after his purchase, paid the interest for several succeeding years; but neither Traverse nor the defendant received a certificate of purchase. It also appears that in 1861 Traverse conveyed the premises to the defendant; that Traverse, from his purchase to his conveyance to the defendant, had the possession of the premises, and that thereafter the defendant was in possession.
The purchase of each party was made under the provis
The plaintiff argues that there is no forfeiture in fact, because of his failure to pay the annual interest, until it is so judicially declared by a competent tribunal; that the statute merely specified certain facts, which, being proved, furnish the basis for a judgment or forfeiture. In our judgment it >was intended, by the sixth section, to make the failure to pay the interest for one year after it became due operate as a complete forfeiture of the purchaser’s rights in and to the land. Had it been designed that the officers charged with the sale of these lands should delay further action until the forfeiture had been judicially determined, it would have been so expressed in the Act; but, on the contrary, that
It requires no argument to prove that the State may waive a forfeiture—as it is contended by the plaintiff was done by the Act of April 9tl^ 1861 (p. 140)—and it is equally clear that if the State, after the forfeiture and before the waiver, resells the land, the waiver will not have the effect to divest the rights acquired by the second purchase.
Judgment affirmed.
Mr. Justice Crockett did not participate in this decision.