Kile v. Tubbs, 59 Cal. 191

Kile v. Tubbs

59 Cal. 191 | Cal. | 1881

Myrick, J.:

This action was brought to obtain judgment, that the defendant holds, as trustee for plaintiff, the title to the lands described in the complaint, and to compel the defendant to convey the same to plaintiff. On demurrer to the complaint, judgment went for defendant. The facts alleged are:

Before July, 1864, the land was duly surveyed by the United States and plat filed, showing it to be swamp land. 'In September, 1864, the plaintiff bought the land as being swamp, from the State, and after compliance with and payment under the statutes concerning the sale by the State of swamp lands, received in August, 1865, its patent for the premises. Upon investigation ordered by the Commissioner of the Land Office, he, in 1872, adjudged that the land was not swamp, but dry. Pending the investigation (to wit, in May, 1870), the State gave notice of its selection and sale of the land as swamp prior to the passage of the act of Congress of July 23d, 1866. Similar notices had been given in May and *193June, 1867. At the passage of the act of July 23d, 1866, no adverse settler’s right had attached, nor was the land within the exceptions stated in the first section of the act. May 8th, 1873, the defendant made a United States homestead entry of the land. A contest ensued in the United States Land Department for the title, between the State, claiming by and for Kile, and Tubbs, under a cash commutation of the homestead. The Commissioner adjudged that the land was confirmed to the State, and that the homestead entry be canceled; but the Secretary of the Interior ruled that the claim of the State to confirmation be rejected, on the ground that the land was not confirmed to the State by or under the first section of the act of July 23d, 1866, and that a patent be issued to defendant Tubbs on the homestead entry. Patent was, accordingly, issued. The plaintiff claims that the decision of the Secretary of the Interior was against law, and that by the law the land was confirmed to the State, and should have been so certified, and prays that defendant’s title be decreed to be held by him as trustee for plaintiff, and that defendant be directed to convey the same accordingly.

1. The first section of the act of July 23, 1866, refers to selections made by the State of lands which had not theretofore passed to and become vested in the State. The act of September 28, 1850, was a grant of the lands therein described, and the State had and could have no voice in the selection. Under the latter act, the State was not to select; it received. Under the former act it having attempted to select,, but by imperfect selections, such selections were made good.

2. If the land in controversy was swamp land, the title having already passed to the State, the Federal officers could not issue a patent as upon a homestead selection of dryland; such patent would be void as issued without authority of law, and, therefore, the void patent could not be held to have conveyed any title, and could not be used to feed a right to title to the land as swamp. If the land was dry land, the State patent was void, and gave plaintiff no right. In either case plaintiff can not maintain this action.

Judgment affirmed.

Sharpstein, J., and Thornton, J., concurred.