104 Cal. 67 | Cal. | 1894
The state of California on May 16, 1885, upon the application of the plaintiff, filed with the register of the proper United States land-office its selection of the land described in the complaint in lieu of a portion of a certain thirty-sixth section. This selection was approved by the register of the United States land-office, and on July 25,1885, the state issued to the plaintiff a certificate of purchase of said land. On July 16, 1885, the commissioner of the general land-office canceled the state’s selection, giving as his reason for such action that the land in lieu of which the selection was made had already served as the basis of a prior selection by the state, and on the 23d of the same month the state was notified of such cancellation. No appeal was ever taken from this ruling of the commissioner. On July 23, 1886, the defendant Gebhart was allowed to enter the same land as a homestead entry under the laws of the United States, and on September 22, 1887, he was permitted to commute his homestead entry and to make final proof and payment for the land.
It further appears that in September, 1888, the commissioner of the general land-office discovered that the order of July 16, 1885, canceling the selection made by the state was based upon a mistake of fact, and said order of cancellation was thereupon rescinded, and the state’s selection reinstated upon the records of the general land-office. The discoveiy of this mistake seems to have
The plaintiff seeks by this action to obtain a judgment and decree that he is the equitable owner of the land, and that the defendant Gebhart holds the legal title thereto in trust for him, and that the other defendants, claiming under defendant Gebhart as mortgagees, accepted their mortgages with notice of plaintiff’s equitable right to the land. The defendants recovered judgment in the superior court, and the plaintiff appeals.
1. It is argued in behalf of plaintiff that one who first initiates proceedings to acquire the legal title to public land has the superior right thereto, if he does or offers to do all that the law requires of him in order to entitle him to a patent therefor, and if by the wrong or mistake of the officers of the land department he fails to secure the legal title from the government and a patent is issued to another, with notice of his prior rights, a court of equity will, under such circumstances, protect the first applicant, by decreeing that the person who has thus taken the legal title conveyed by the patent holds such title in trust for him who was first in time in the commencement of proceedings to acquire such title. There is abundant authority for this proposition. (Lytle v. Arkansas, 9 How. 314; Buckley v. Howe, 86 Cal. 596; Lindsey v. Hawes, 2 Black, 554; Johnson v. Towsley, 13 Wall. 72; Shepley v. Cowan, 91 U. S. 330.) ’
2. But even if it should be conceded that the plaintiff, by viitue of his application and the selection made by the state, is in a position to call in question the grounds of the decision of the secretary of the interior
“ But, in any event, I do not see that the appellant, Roberts, has any cause for complaint. He says in his affidavit that he knew of the order of July 16, 1885, canceling the state’s selection in August, 1886. Granting that this was the first information he had, or the state had, he then had sixty days in which to appeal. This information was within forty days after Gebhart made his homestead entry, and the land then being subject to entry by your order under the land laws of the United States, it was his (Roberts’) privilege to contest the entry of Gebhart on the ground of prior settlement. Again, he allowed Gebhart to make final proof and payment for the land a year after he had knowledge of the order, without protest. It will be assumed that he had personal knowledge of Gebhart’s claim, as it is shown that both parties were actually residing on the land from the date of Gebhart’s entry to his final proof. So that it would seem appellant has slept on whatever rights he may have had.”
In these views we entirely concur.
Judgment and order affirmed.