91 Cal. 158 | Cal. | 1891
This is an action to recover the possession of eighty acres of land situated in the county of Alameda. The answer denies all the allegations of the complaint. Defendant filed a cross-complaint, setting forth that he settled on the lands in controversy, with his family, claiming the same under the pre-emption laws of the United States, prior to July 8, 1878, and continuously since that date has resided and made valuable improvements thereon. The defendant then proceeds to show that Thomas’s application for a homestead was filed at a time when the lands in controversy were not subject to sale under the land laws of the United States, because they were within the exterior boundaries of a Mexican grant; but notwithstanding this fact, the claim of Thomas, plaintiff’s grantor, was approved by the officers of the land department in violation of law. It is alleged that the name of Thomas was fraudulently used for the benefit of one Benson, and that the commissioner of the general land-office and the Secretary of the Interior, in violation of the legal and equitable claim of the defendant, neglected to read, examine, or weigh the evidence taken before them on appeal from the decision of the register and receiver awarding the land to Thomas, and, without an examination of the record, signed and filed written opinions adverse to the claim of defendant, which had been compiled and fabricated by clerks and subordinates. It is further alleged that Thomas never executed any power of attorney to Dey, who, as attorney in fact, executed and delivered to the plaintiff the deed upon which he relies. The prayer is, that plaintiff take nothing by this action; that the patent from the United States to Thomas be declared void; and that upon defendant making payment to the receiver of two hundred dollars, the purchase price of the land in controversy, the President of the United States be required to issue and deliver to him a patent for the land.
There is no merit in the cross-complaint, and the plaintiff’s demurrer to the same was properly sustained. There is nothing in the cross-complaint which takes the
The allegations of the cross-complaint with respect to
It is claimed that defendant’s continuous possession of the land from a date prior to the filing of the homestead claim on behalf of Thomas prevented the initiation or acquisition of any homestead claim. These are matters, however, which the land department heard, considered, and determined. That department of the government had jurisdiction of the subject-matter and of the persons, and its adjudication is final. It is not a ease of an entire want of power, like the cases cited by appellant. , -
The patent from the United States to Thomas recites that the claim of Thomas to the land was established “ pursuant to the act of Congress approved the 20th of May, 1862, ‘ to secure homesteads to actual settlers on the public domain,’ and the acts supplemental thereto.” If the homestead was acquired under section 2306, Revised Statutes of the United States, as the defendant states in his cross-complaint, the court did not err in overruling the objection to the power of attorney, and the title of Thomas passed by the deed from his attorney in fact to plaintiff. (Rose v. Nevada Wood etc. Co., 73 Cal. 385.) While we cannot consider the matters alleged in the cross-complaint in determining whether the court erred, we may safely assume, as the case must be reversed on another point, that defendant has stated the facts correctly. Furthermore, “ pursuant to the act of Congress approved May 20,1862, .... and the acts supplemental thereto,” is a general recital which doubtless was intended to cover all the acts of Congress relating to homesteads; certainly, the recital did not throw upon the plaintiff the burden of showing that the homestead was not initiated and acquired under the laws requiring actual settlement and residence by the claimant.
Plaintiff, at the trial, offered in evidence the record of the deed from Thomas and wife by Dey, their attorney in fact, to plaintiff. The county recorder was called as e"a witness, and identified the book as a record of his office. Defendant objected to the admission of the evidence, on the ground that the original deed had not been accounted for, and on the further ground that the certificate of acknowledgment showed that the deed was acknowledged on August 24, 1885, and the certificate of the notary was' not made until October 11, 1887.
We do not think that the second ground of the objection stated was well taken. If the original deed had been offered in evidence, and its execution had been proved, as it was proved by the testimony of the notary and Dey, it would have been immaterial if there had been no certificate of acknowledgment whatever; the deed would be valid as between Thomas and the plaintiff, and there is no question of notice, actual or constructive, involved in the transaction.
We think, however, that the court erred in admitting the record in evidence without proof of the loss of the original, or the inability of the plaintiff to produce it. In 1889, the legislature amended section 1951 of the Code of Civil Procedure so as to permit proof of a private writing, acknowledged or proved by the introduction of the original record of such writing, “without further proof”; but at the time this action was tried, April 18, 1888, such a record was admissible in evidence only “ on
Judgment and order reversed, and cause remanded for a new trial.
McFarland, J., and De Haven, J., concurred.
A motion for a modification of the judgment having been made, the following opinion was rendered thereon on the 12th of October, 1891: —
The appellant’s motion to modify the judgment is denied. Upon filing remittimr in the court below, the appellant will be entitled to receive from the clerk the money he deposited with him, and also to restitution of the premises, but the motion and order therefor should be made in the superior court.