Dolhequy v. Tabor

Norton, J. delivered the opinion of the Court—Cope, C. J. and Crocker, J. concurring. On the twenty-ninth day of September, 1858, Dolhequy made a request to the locating agent to have the land in question located under the Act of April 23d, 1858. The selection was made in the United States Land Office on the fourth day of October, 1858. On the sixteenth day of November, 1858, one James C. Tabor made a' claim at the United States Land Office to have a preemption right to a portion of the land. Upon a notice to the parties interested, this claim was investigated by the United States Register, and on the eleventh day of January, 1859, a decision was made against the claim, from which decision the claimant, on the twelfth day of January, 1859, appealed to the United States Commissioner of the General Land Office, and on the sainé day the United States Register transmitted a transcript of- all the papers and proceedings and testimony in the case to the Commissioner, and notified Dolhequy that the approval of the location made by the State in his behalf, and all further proceedings in regard to said location were thereby suspended. Dolhequy thereupon deposited with the United States Register the sum of one hundred and twenty dollars, to be paid to the State for the first payment of twenty per cent, and interest, if his location should be finally allowed.

[282]The United States Commissioner of the General Land Office, on the tenth day of August, 1860, decided against the claim of James C. Tabor to a preemption right, but before his decision was known to the Register here, Dolhequy, on the fifteenth day of August, 1860, withdrew his money from the hands of the Register. In the meantime—to wit, on the thirteenth day of July, 1860—one Fowler procured a location of the same land to be made in his behalf, and received a certificate of ptirchase for the same. This certificate has since been transferred to the defendant, John A. Tabor, who advanced the money by which the certificate was obtained, and who, it appears by the undenied allegations of the complaint and the proofs, had fall knowledge of the proceedings taken by Dolhequy to procure a certificate of purchase, and of the suspension of those proceedings in consequence of the appeal taken by James C. Tabor from the decision on his preemption claim, and for whose benefit it may clearly be inferred the certificate was procured in the name of Fowler. The decision of the Commissioner of the General Land Office was received by the Register in California on the thirteenth day of September, 1860, and Dolhequy on the sixth day of October, 1860, paid to the County Treasurer on his location, the sum of one hundred and seventy-nine dollars, being the amount of the twenty per cent, and three years’ interest, and the Treasurer’s fee.