Megerle v. Ashe, 27 Cal. 322

Megerle v. Ashe

27 Cal. 322 | Cal. | 1865

By the Court, Rhodes, J.

The plaintiff claims title to the premises in controversy through a patent issued to him by the United States, September 1, 1863; and the defendants claim title under a patent issued by the State of California, January 8, 1862, to Terry, the grantor of Ashe. The plaintiff having introduced his • patent rested, and thé defendants then offered in evidence the patent from the State to Terry, and in connection therewith offered to prove by independent evidence that the statement and recitals in the patent were true, which were in substance that the land had been properly selected and located by the State, as a part of the five hundred thousand acres of land granted to the State, by the Act of Congress of September 3, 1841, and that Terry was entitled to receive a patent from the State for the lands described in the patent. The premises described in the two patents were identical. The Court excluded the patent and the evidence offered in connection with it, and the defendants excepted.

In support of the ruling of the Court the plaintiff advances two propositions : “ First, that a United States patent is conclusive evidence of legal title in the patentee in an action at law as against everything except a prior patent from the same source of title; and second, that a patent of the United States cannot be attacked except for fraud or mistake, and for those only in the United States Courts.” If the first proposition cannot be maintained the consideration of the second will be unnecessary, for if the patent is not absolutely conclusive it will be deemed to have been issued without authority of law— *327through fraud or mistake—as against a title that passed from the same source of title prior to the date of the patent. The first proposition assumes that, the title of the United States can pass only by a patent, for the learned counsel would not contend that the patent would be conclusive as against a prior title derived from the United States simply because the title did not issue in the form of a patent. This assumption stands opposed to a long series of decisions of the Supreme Court of the United States, as well as that of several of the States. In Rutherford v. Greene’s Heirs, 2 Wheat. 196, in which the title of General Greene to the twenty-five thousand acres granted to him by the Act of the Legislature of North Carolina, was in isssue, it being objected that the grant was not complete, because not attested by an instrument having the seal of the State attached. Mr. Chief Justice Marshall, in delivering the opinion of the Court, said that “ the Court would certainly have thought it unnecessary to advert to it (the objection) had not the argument been urged repeatedly, and with much earnestness, by counsel of the highest respectability.” A legislative grant is as effectual to pass the title to lands, in all respects,and for every purpose, as a grant evidenced by a patent. (Lessieur v. Price, 12 How. 59 ; Kernan v. Griffith, ante, p. 88 ; Summers v. Dickinson, 9 Cal. 554; Owen v. Jackson, 9 Cal. 322.) The patent, therefore, being of no higher grade, as evidence of title, than a legislative grant, is not conclusive as against a person claiming under a grant made by the legislative department prior to the adverse patent. It may be remarked, also, that the Act of Congress makes no provision for the issuing of a patent to the State or her grantees, and if one should be issued it would amount to no more than a further assurance.

For the purpose of determining the question of the admissibility of the evidence offered by the defendants, it is necessary to ascertain in what manner the title to any particular tract of land passes to the State or her grantee, under the Act of Congress of September 3, 1841, for if the evidence tended to show that the title to the tract in controversy passed to the *328State or her grantee, prior to the date of the plaintiff’s patent, the Court erred in excluding the evidence.

The eighth section provides that “there shall be and hereby is granted to each new State that shall be hereafter admitted into the Union, upon such admission, so much land as, including such quantity as may have been granted to such State before its admission and while under a Territorial Government, for purposes of internal improvements, as aforesaid, as shall make five hundred thousand acres of land, to be selected and located as aforesaid.” The language “ hereby is granted ” as has uniformly been held by the Courts, imports a present grant. The title to the amount of land specified in the Act passes upon the admission of the new State, though “wanting identity to make it perfect ”—to attach it to a particular parcel of land. (Lessieur v. Price, 12 How. 59; Rutherford v. Greene’s Heirs, 2 Wheat. 196; Terry v. Megerle, 24 Cal. 609.) The Legislature of a State must thereafter provide by law for the performance by her officers or agents, of the acts that may be requisite to indicate a selection of the tracts of land which, in the aggregate, will constitute the amount of land granted to the State by the Act of Congress. When a particular parcel of land has been “ selected and located” in accordance with the provisions of the Act of Congress—when the selection and location have been made by the proper officers or agents, acting on behalf of the State, in such manner as the Legislature has directed, and on public lands that at the time are subject to such location, and the selection and location have been approved by the proper authorities of the United States, then the identification of the land has made the title perfect and attached it to the particular tract selected. The title, thus perfected and attached to the land, vests in the State, or her grantee, and all the interest the United States had in the particular parcel is held by the State or her grantee, by a title superior to that asserted by the holder of a subsequent patent issued by the General Government.

A person claiming title under the Act of Congress, through the State, would be obliged to show, as against one claiming *329under the United States through a patent issued in accordance with the general regulations for the sale of public lands, the performance of the acts required by law to constitute the selection and location of the land. This the defendant was proceeding to do when objection was made by the plaintiff. We do not undertake to say that the evidence offered by him would have been sufficient to have sustained his claim of title and upheld his patent from the State; but the offer to show that the recital was true, that the land had been “ duly and properly located in accordance with the provisions of the said laws of this State,” though general in its terms, certainly included several of the steps necessary to he taken in making the selection and location of the land. The refusal of evidence of the character offered would subject every title to portions of the five hundred thousand acres of land derived from the State to the liability of being defeated by subsequent patents issued by the United States.

The patent from the State was also admissible in connection with proof of the due selection and location of the land. We therefore hold that the decision of the Court in excluding the evidence offered by the defendants was erroneous.

Judgment reversed and the cause remanded for a new trial.