49 Cal. 213 | Cal. | 1874
1. The judgment in the case of Reynolds v. Lowry was not a bar to the present action. Lowry entered as a tenant under Peat; and, after the death of the latter, attorned to his administrator, and Was holding the possession in this manner at the commencement of the action. There is nothing in this record to show that the administrator had notice of the pendency of the action; and it is well settled that a landlord is not bound by a judgment in ejectment against his tenant, unless he had a notice of the action and an opportunity to defend in the name of. the tenant. The present plaintiff was not a party to the action; and as the heir of Peat he was certainly not bound by the judgment if the administrator was not. Moreover, at the time of the trial of that action, Peat’s homestead claim had not been perfected, and was subject to be defeated by a failure to perform the conditions required by the'Homestead Act of the United States. Since then,, the present plaintiff, as the heir of Peat, has performed the conditions and obtained a patent. His right of action, founded on the patent, can
2. The State selection of the land in controversy, made in 1863 upon unsurveyed public lands, was invalid. (Terry v. Megerle, 24 Cal. 609; Grogan v. Knight, 27 Id. 515; Smith v. Athearn, 34 Id. 512; Hodapp v. Sharp, 40 Id. 69; Collins v. Bartlett, 44 Id. 371; Foscalini v. Doyle, 47 Id 437.) But by the Act of July 23. 1866, entitled “an Act to quiet land titles in California,” Congress provided a plan by which certain of these erroneous locations might be validated. The first section provides that “in all cases where the State of California has heretofore made selections of any portion of the public domain, in part satisfaction of any grant made to said State by any Act of Congress, and has disposed of the same to purchasers in good faith under her laws, the lands so selected shall be and are hereby confirmed to said State,” with certain specified exceptions. The second section provides that where these selections have been made “upon land which has been surveyed by authority of the United States, it shall be the duty of the proper authorities of the State, where the same has not already been done, to notify the Register of the United States Land Office for the district in which the land is located, of such selection, which notice shall be regarded as the date of the State selection, and the Commissioner of the General Land Office shall, immediately after the passage of this Act, instruct the several local Registers to forward to the General Land Office, after investigation and decision, all such selections, which, if found to be in accordance with section 1 of this Act, the Commissioner shall certify over to the State in the usual manner.” Section three provides for cases where the selection had been made from lands which, at the passage of the Act, had not been surveyed; and in these cases also, after proper investigation, the land “ shall be certified over to the State by the Commissioner of the General Land Office.” In construing these sections we have several 'times decided that the title does not pass to the State until the land has been certified over to it by the Commissioner of the General land Office. (Hodapp v.
3. The plaintiff’s patent recites that he is the heir of Peat, and has performed the necessary conditions to perfect the homestead claims. No other proof of these facts was necessary.
Order and judgment affirmed.
Mr. Chief Justice Wallace did not express an opinion.