40 Cal. 294 | Cal. | 1870
delivered the opinion of tbe Court:
In November, 1866, plaintiff was in possession of and bad inclosed a certain tract of public land of tbe United States.
This plaintiff, tben being out of possession, abandoned bis right to pre-empt, and going upon another portion of tbe same subdivision of public lands, outside of bis former possessions, again made bis declaration of intention to preempt tbe whole tract, claiming that be bad made a new settlement, and claiming tbe right to pre-empt by virtue of such new settlement. On tbe 22d of June, 1869, plaintiff made tbe proper proof and payment, and received from tbe proper officers tbe certificate of purchase of tbe whole tract. Before receiving bis certificate, however, be caused citation to be issued from tbe Land Office and served upon tbe defendant, commanding bim to appear at tbe Land Office on a day stated and make proof of bis claim, ox it would be awarded to tbe plaintiff. Tbe defendant failed to appear or to contest the plaintiff’s right, and never resided upon or assumed tbe possession or occupancy of any portion of tbe land in controversy. Plaintiff was in tbe actual possession of tbe whole tract at tbe time this suit was commenced.
This action was brought to quiet tbe plaintiff’s title. Tbe above is tbe substance of tbe facts found by tbe Court, which, upon tbe findings, rendered judgment for tbe plaintiff. This appeal is taken from tbe judgment,
Tbe defendant contends: First — That plaintiff being in possession as owner, and having declared bis intention to pre-empt at tbe time of tbe execution of tbe Sheriff’s deed
At the time of the sale under the judgment against Montgomery, and the execution of the Sheriff’s deed to "Whiting, Montgomery was not the owner of the land nor of any interest in it. He had no title whatever, inchoate or otherwise. By his settlement and filing his declaratory statement, he obtainéd the right to purchase at a fixed rate, when -the lands should be sold by the United States, provided he complied with the provisions of the laws of the United States in regard to pre-emption rights; and also provided the Government of the United States did not withdraw the lands from the operation and effect of the preemption laws, before he had actually entered and paid for it. (Hutton v. Frisbie, 37 Cal. 475; Whitney v. Frisbie, 9 Wall. 187.) Montgomery was not in possession as owner, but as a pre-emptor. He entered and settled upon the land in pursuance of the laws of the United States, which authorized him to take possession, and made his doing so a condition precedent to his becoming a preferred purchaser. He had no title to connect with that of the United States; he was there merely as an applicant for the privilege of purchasing. The Sheriff’s deed conveyed to Whiting nothing more than the possessory right of Montgomery, the right, title, and interest in the land, which he then had. After the sale and conveyance there was no relation of contract between the parties. Montgomery was not bound to proceed and acquire the title for Whiting, and he was not bound by a warranty or covenant which would prevent his acquiring title himself from an independent source, nor was there any relation between him and Whiting which should make it inequitable for him to do so. All relations between the parties were dissolved upon the execution of the conveyance, without warranty.
We do not understand bow tbe judgment in ejectment can be claimed to operate as an equitable estoppel in pais. A man is said to be estopped when be has done some act which tbe policy of tbe law will not permit him to gainsay or deny. We see no element of an estoppel in this matter of tbe judgment. Tbe judgment was not a bar to any title acquired by Montgomery after its rendition.
Tbe judgment is affirmed.