52 Cal. 299 | Cal. | 1877
The suspension of the entry does not invalidate the entry, nor preclude the right to a patent. The right of the purchaser subsists, and the land does not revert to the Government until the entry is finally adjudged to be invalid. (Rev. Stats. U. S. secs. 2450, 2454.)
The duplicate receipt establishes a right of possession in the holder. (Byres v. Nail, 43 Cal. 260; McDonald v. Edmunds, 44 Cal. 330.)
The duplicate is primary evidence of legal title, and may only be overcome by proof that when the pre-emption was filed the land was in the adverse possession of the adverse party, or others in privity with him. (Code Civil Procedure, secs. 1829,1925.))
It may be conceded, for the purposes of this decision, that the Receiver’s duplicate receipt is “a certificate of purchase ” within the purview of sec. 1925 of the Code of Civil Procedure; and it may also be conceded that the plaintiff, as a bona fide purchaser and holder thereof, for a valuable consideration, will not be affected by the infirmities which would have impaired the effect of the certificate in the hands of Ayres, to whom it was issued. But it appears from the findings that before the commencement of the present action, the entry on which the certificate was founded had been suspended by the Commissioner of the General Land Office, and the suspension was in full force when the suit was brought, and so continued at the time of the trial. There can be no question that the Commissioner had competent authority to suspend the entry, by virtue- of his supervisory control over the acts of his subordinates. (Hosmer v. Wallace, 47 Cal. 461.) The legal effect of suspending the entry was to suspend also the certificate founded upon it; and so long as the suspension continued the certificate remained in abeyance, and was inoperative as a muniment of title, under sec. 1925 of the Code of Civil Procedure. The certificates referred to in that section, as prima facie evidence of title, are those which are in force, and not such as have been suspended by competent authority.
Judgment and order affirmed.
Mr. Chief Justice Wallace did not express an opinion.
