112 Cal. 506 | Cal. | 1896
Upon the former appeal in this case ( Wormouth v. Gardner, 105 Cal. 149), the plaintiff's right of recovery was based upon a homestead entry, and the receipt of the receiver of the United States land-office for the cash payment thereof. The trial of the cause below, from which that appeal was taken, was had in the year 1892, and intermediate the decision upon that trial and the decision of this court upon the appeal, a patent for the land described in the complaint was issued to the plaintiff by the United States, and upon the going down of the remittitur the defendants filed a supplemental answer and a cross-complaint, setting forth this issuance of the patent to the plaintiff, and alleging other facts by virtue of which they claimed that the plaintiff holds the patent in trust for them, and asked that the court decree that he execute to them a conveyance of the said land. To this supplemental answer and to the cross-complaint the plaintiff filed a general demurrer,
The facts alleged by the defendants in support of their claim are, that in the year 1834, the Mexican government granted to Juan Reed a tract of land called the Rancho Corte de Madera del Presidio, which included the demanded premises within its exterior limits; that the said grant was confirmed, and in the year 1885 a patent therefor was issued by the United States to the heirs of said Reed (he having died in 1843); that after the confirmation of the grant, and while proceedings were pending in the land department to ascertain its boundaries, and before the final survey thereof had been made, the grantors of the defendants purchased from said heirs of Reed, in good faith and for a valuable consideration, a tract of land which included the lands described in the complaint, in the belief that the said tract of land was a part of said Mexican grant; that the final survey upon which the patent was issued was made in 1874, and by it the lands so purchased were excluded from the grant; that in January, 1875, one Throckmorton, who had succeeded to the interests of the aforesaid purchasers, made an application to the register and receiver of the United States land-office, at San Francisco, for the purchase of said lands under section 7 of the act of Congress, entitled “An act to quiet titles in California,” approved July 23, 1866, and that the plaintiff herein was a party defendant upon said application, and contested the same; that Throckmorton’s application was rejected by the register and receiver, and also, upon appeals therefrom, by the commissioner of the general land-office, and by the secretary of the interior, and that thereafter a patent was issued to the plaintiff for the lands described in the complaint; that after the institution of the proceedings before the register and receiver, Throckmorton died, and that the defendants herein have succeeded to his interests in the premises.
Section 7 of the United States Statutes (14 U. S. Stats. 220), provides: “ That where persons in good faith, and for a valuable consideration, have purchased lands of Mexican grantees or assigns, which grants have subsequently been rejected, or where the lands so purchased have been excluded from the final survey of any Mexican grant, and have used, improved, and continued in the actual possession of the same, as according to the lines of their original purchase, and where
Upon these facts it is evident that Throckmorton brought himself within the provisions of section 7 of the United States statutes aforesaid, and was entitled to receive a patent for the land, and the demurrer to the-answer and cross-complaint of the defendants concedes the truth of these averments. The answer and cross-complaint do not set forth the facts which were determined by the secretary of the interior, nor does it appear that he made any special findings of fact, or gave any conclusion with reference to the above facts,, but upon the allegation that the purchase was, in fact, made in good faith, and for a valuable consideration, and that competent and uncontradicted evidence of such facts, as well as of the other facts, was presented to that officer upon the application for the patent, we-must assume that his findings were in accordance with the evidence, and that his refusal to issue the patent to'Throckmorton was by reason of his construction of the law that he was not entitled thereto. Whether Throckmorton did, in fact, purchase the land for a valuable-consideration, or whether after his purchase he used and improved, and continued in the actual possession of the same, according to the lines of his purchase, were questions of fact to be determined by the secretary of the interior. The good faith of Throckmorton in mak
The judgment is reversed, and the superior court is directed to overrule the demurrers, with permission to the plaintiff to answer the cross-complaint, if he shall be so advised.
Garoutte, J., and Van Fleet, J., concurred.
Hearing in Bank denied.
Beatty, C. J., dissented from the order denying a hearing in Bank.