Kerr v. Snowden

SHAW, J.

Action in ejectment. The case was tried before a jury which rendered a verdict for plaintiff. Judgment followed. Defendants moved for a new trial, in support of which they offered a statement of the case. The motion was denied, and this appeal is from the order denying the same.

[154]

The land, one hundred and sixty acres in area, is situated in Imperial County. The complaint, filed April 12, 1909, alleged that on January 28, 1907, plaintiff was seized in fee of “that certain 160 acres of land, . . . embraced in Desert Land Entry No. 3024 and in said Desert Land Entry described as the SE % of section 3, township 15 south, range 14 east; also known as the SE of section 36, township 14 south, range 14 east, S. B. M., according to the Imperial survey ; and also described as Tract No. 37 in township 14 south, range 14 east, S. B. M., according to the resurvey of said, township authorized by act of Congress July 1st, 1902 ’ ’; that defendants, without right or title, entered into possession and ousted and ejected plaintiff therefrom, and unlawfully withhold possession thereof to her damage in the sum of five hundred dollars; that the rents, issues and profits for the time that plaintiff was excluded from the property is five hundred dollars. By their answer defendants deny plaintiff’s title and the alleged ouster; “deny that defendants, or either of them, now unlawfully withhold possession from plaintiff of any of the lands described in plaintiff’s said complaint.” This last denial as quoted is not only evasive, but a mere conclusion; hence insufficient to raise an issue ás to defendants being in possession of the land.

(De Godey

v.

Godey,

39 Cal. 157.) The allegation of the complaint in this regard must therefore be deemed admitted. Plaintiff’s title is based upon the claim that on July 21, 1905, at which time the land was vacant, unappropriated government land, one Harry R Hay made a desert land entry thereon, numbered 3024, and received from the United States land department a certificate of purchase, wherein the land was described as the southeast ^4 of section 3, township 15 south, range 14 east, and that ir\\ January, 1907, Hay assigned this certificate of purchase to plaintiff. At the time of the filing of the complaint herein this certificate of purchase and assignment thereof to plaintiff constituted the sole documents upon which plaintiff based her claim of title to the property. While the issuance of the certificate of purchase did not in fact transfer the government title to plaintiff’s assignor, such certificate, by virtue of section 1925 of the Code of Civil Procedure, is made primary evidence that the holder or assignee thereof is the owner of the land described therein. In the absence of this provision of the code,