Stephens v. Mansfield
Before: Terry
Synopsis
Plaintiff was in possession of a tract of land (a part of the public domain of the United States) under a deed of purchase from another, who at the date of the deed was also in possession, which deed was duly recorded ; and after being so possessed for several months, he made a verbal sale of the land to one H, for the consideration of §600 ; and H, after remaining in possession for two years, sold the premises to defendant: Held, that plaintiff’s transfer of the land td-H did not amount to an abandonment.
There can be no such thing as an abandonment of land in favor of a particular individual, and for a consideration.
Abandonment must be made by the owner, without being pressed by any duty, necessity or utility to himself, but simply because he desires no longer to possess the thing; and further, it must be made without any desire that any other person shall acquire the same.
Where plaintiff had possession under a deed duly recorded, and the defendant having entered with notice of, and in subordination to, plaintiff’s title, cannot be permitted to deny it in an action of ejectment.
1. The Court below erred in treating a verbal sale of land as an abandonment.
2. The judgment is inconsistent with the facts found, and erroneous.
[364]Sanderson & Hewes for Respondent.
The points upon which respondent relies are briefly as follows:
1. That the verbal contract between Hunter and Stephens conferred a valid title.
2. That if that contract was within the statute of frauds, and consequently void, that Stephens must be presumed to have and actually did abandon all right to the lot long before we became the possessors of it.
The bargain, sale or arrangement made between Hunter and Stephens, transferred Stephens’ rights to the lotto Hunter.
The plaintiff cannot deny the recitals of the deed from Jane Shearer; he claims under it. That deed admits the fee of the lot to be in the United States; besides the “ Settler’s Act ” presumes it to be public land; the pleading and proof establish that fact. In 1852, .then, Stephens was a mere occupant of the land; had simply the right of possession; was a tenant at will of the United States.
“ The occupancy of the public lands of the United States constitutes a tenancy at will.” Duncan v. Potts, 5 Ala. 82.
“ The interest of a tenant at will in real estate is not such an interest as can be assigned; an agreement to transfer such interest is not therefore within the statute of frauds.” Whittemore v. Foster, 4 N. H. 484.
“ A verbal sale of a pre-emptor’s claim to improvements, to a purchaser who takes immediate possession, confers a valid title.” Bledsoe v. Cains, 10 Texas, 455.
The Legislature have treated “possessory claims to public lands” as personal property, and so declared it.
In 1853, the Legislature provided for mortgages “ upon possessory claims to public lands, all buildings and improvements on such lands, all quartz claims, and all other such personal property, ¿•c.” Comp. Laws. 711.
True, that this Court, in Winans v. Christy, 4 Cal. R. 70, says that defendants in ejectment are not permitted to show that the fee of the land is in the United States. But in Anderson v. Parker, 6 Cal. R. 197, they very clearly intimate, if they do not expressly hold a dif
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