67 Cal. 171 | Cal. | 1885
Appeal from a judgment of dismissal entered on sustaining a general demurrer to the complaint.
The complaint shows, that the plaintiffs are daughters and the defendant Hattie Traver the widow of Oscar Traver, deceased; that Oscar Traver died in the year 1877 in possession of the tract of land described in the complaint, leaving surviving him the said widow and two daughters as his sole heirs-at-law; that after his death, the widow continued to reside on the land, and in November, 1879, she made a homestead entry upon it, and on the 10th of, November, 1879, obtained for it a patent from the United States. This patent the plaintiffs claim inures to the benefit of the heirs-at-law of the deceased; and the object of the suit in hand is to have the widow as the recipient of the United States patent declared their trustee of an undivided one-half interest in the land, and of the rents, issues, and profits of the same.
They base this claim upon section 2269 of the United States Revised Statutes, which is as follows: —
“ Where a party entitled to claim the benefits of the preemption law dies before consummating his claim, by filing in due time all the papers essential "to the establishment of the same, it shall be competent for the executor or administrator of the estate of such party, or one of the heirs, to file the necessary papers to complete the same; but the entry in such cases shall be made in favor of the heirs of the deceased pre-emptor, and a patent thereon shall cause the title to inure to such heirs, as if their names had been specially mentioned.”
Of the validity of this statute there is no question. (Elliott v. Figg, 59 Cal. 117.) But it has no reference to an entry made under the homestead laws of the United States; it refers only to an entry made in consummation of a claim of right to land, asserted under the pre-emption laws of the United States, by a pre-emptor, who dies before completing his claim, by filing the requisite papers. In such a case, the statute extends the right," after the death of the pre-emptor, to his executor or administrator, or any of his heirs-at-law, to complete the claim initiated by him, by filing the papers necessary for the purpose, and to enter the land for the benefit of all the heirs. But the complaint contains no case under the statute. Its statement of
There is no averment in the complaint that the fact communicated to the plaintiffs was not true; and it is admitted that the approved plat of the township, on which the land is situated, was not filed until the 1st of July, 1879, more than - two years after the death of Oscar Traver. At the time of his death Traver was, therefore, a mere occupant of the land, as a portion of the unsnrveyed public land of the United States, for the pre-emption of which he had taken no steps required by the ■ pre-emption law. In that position he had a mere privilege of pre-emption. But such a privilege is not a title legal or equitable; it is only a proffer to a certain class of persons that they may become purchasers if they will, but without payment, or an offer to pay, it confers no equity; a right is conferred by ' it only when the party has accepted the offer, by claiming the ■ benefit of the statute in the proper manner and within the required time, or by payment. (Grand Gulf R. R. Co. v.
As, therefore, the original settler died without making any claim to the benefits of the pre-emption laws, which could be perfected by his heirs, and as no equitable right in the land descended to the heirs, the patent issued to .the defendant Hattie, upon her entry under the homestead laws, is not subject to a trust in favor of the plaintiffs (Jarvis v. Hoffman, 43 Cal. 314), and the court did not err in sustaining the demurrer, and entering judgment for defendants.
Judgment affirmed.
Ross, J., and McKinstry, J., concurred.