108 Cal. 58 | Cal. | 1895
This was an action of ejectment in which judgment went for plaintiff. Defendant appeals from, the judgment and from an order denying a new trial.
The land in contest was listed to the state in lieu of certain school land; and a patent thereto was issued by the state to plaintiff’s testator in pursuance of a certificate of purchase issued to one C. F. Wilson. Wilson filed his application for the land in the state land-office on December 31, 1886; his application was approved August 30, 1889; a certificate of purchase was issued to him September 11, 1889; he assigned his certificate to Isadore Dreyfus (respondent’s testator) on October 28, 1889; and on February 24, 1893, the state of California issued its patent for the land to said Isadore Dreyfus.
On January 27, 1887, appellant, who was a qualified pre-emptor residing on the land, filed in the local United States land-office his declaratory statement of his inten
A reversal of the judgment could be based only upon these two propositions, or one of them: 1. That upon the facts averred in the cross-complaint appellant can hold respondent as trustee for him of the land in contest; 2. That in defense to the action of ejectment appellant can attack respondent’s patent collaterally by showing the character of the land in contest.
A person seeking to have a patentee of land declared his trustee, in the absence of any contract between the parties, must connect himself with the paramount source of title, and also show that he has prosecuted his claim with diligence. (Burling v. Thompkins, 77 Cal. 257; Doll v. Meador, 16 Cal. 295; Damrell v. Meyer, 40 Cal. 166; Kentfield v. Hayes, 57 Cal. 409; Sacramento Sav. Bank v. Hynes, 50 Cal. 195; O’Connor v. Frasher, 56 Cal. 499; Moore v. Wilkinson, 13 Cal. 478; Chapman v. Quinn, 56 Cal. 266; Buckley v. Howe, 86 Cal. 596.) Nearly all the cases cited by appellant were cases where contests as to the right to purchase had been referred by the land department to the superior court, under section 3414 of the Political Code, or where each party had in some other way acquired a status. In Hollinshead v. Simm.s, 51 Cal. 158, the court discusses mainly the alleged fraudulent acts of one Woods, who was the agent of Hollinshead, and does not discuss the status of Simms. As to the latter it is merely said, generally, that he had “the right, as against the government, to acquire the legal title,” and that Simms was not “lacking in dili
In the case at bar appellant has no status as claimant of the land under the United States government. After his declaratory statement had been canceled, and the land listed to the state, he took no appeal, but recognized the lands as state land, and made application to purchase it from the state. Neither has he any status as claimant of the premises as state land. When his application to purchase was rejected he took no step to contest the prior application of Wilson, of which he was informed, but slept upon whatever rights he may have had for some years until Wilson’s application had progressed, first into a certificate of purchase, and afterward into a patent. It does not appear that he was kept in ignorance of his rights by any fraud of respondent or his predecessor. In Kentfield v. Hayes, supra, a case very similar to the one at bar—it was expressly held that an application by defendant, to purchase the land in contest which had been presented to and rejected by the state land department did not give him a status from which he was to hold the patentee as his trustee.
2. A defendant may defeat an action of ejectment by showing that plaintiff has no title. But where a patent, regular on its face, has been issued by the government (federal or state) for land which it owns, under a law providing for the disposal of the land patented upon the ascertainment of certain facts, the officers of the land department of the government have jurisdiction to determine such facts, and the issuance of a patent is, upon collateral attack, a conclusive declaration, as against all claiming under said government, that the facts have been found in favor of the patentee. “And this rule applies to the determination of the particular character
In the case at bar appellant seeks collaterally to assail respondent’s patent by showing the character of the land. The law provides that if the land be suitable for cultivation—that is, if each forty-acre tract will produce ordinary crops without artificial irrigation, etc.—then it is to be sold only to an actual settler. The respondent’s predecessor sought to purchase the land upon the theory that it was not suitable for cultivation, and made an affidavit that it was not so suitable, as required by statute. Now, the contention of appellant is that he may show the patent to be void by showing that said affidavit was false because the land was suitable for cultivation. But this he may not do, because the patent is conclusive as to the “ conditions and characteristics of the land.” If in ejectment the plaintiff relies on a pat
Counsel for appellant has cited some cases where it has been held that evidence was properly allowed on the point whether certain land was swamp or overflowed or dry; but it is very evident that questions as to swamp lands are very different from those arising in the case at bar. It has always been held that the act of Congress of September 28, 1850, by which the swamp lands were given to California (and the other states) was a grant in prsesenti, and at its date passed the title to the state; although it also provided that it should be the duty of the secretary of the interior to afterward send lists and plats of such lands to the governor of the state, and also, at the latter’s request, issue patents of such lands to the state. (Wright v. Roseberry, 121 U. S. 488.) As the title passed by said act of 1850 to California to all the swamp land within her borders she was not compelled to wait for the platting and patenting of the same by the land department of the general government; and, as the action of said department was tardy, she proceeded herself to assert her ownership of said lands by providing for their survey and sale, and the issue of patents to the purchasers. ( Wright v. Roseberry, supra.) But under these circumstances it happened sometimes that
The judgment and order are affirmed.
Henshaw, J., and Temple, J., concurred.