People v. Jackson

By the Court, Sandeesoe, C. J. This is an action in the name of The People of the State of California, on the relation of S. C. Hastings, to set aside and cancel a patent issued by the State of California to the defendant Jackson, for certain lands described in the complaint, under the provisions of the Act of April 16, 1859, entitled “An Act to provide for the issuance of patents to lands located with State school land warrants, and for lands purchased under the Act of April 28, A. D. 1858.” A demurrer was interposed to the complaint, which was sustained by the Court. The plaintiff having declined to amend his complaint, a final judgment was rendered in favor of the defendants, from which the plaintiff appeals, and assigns as error the ruling of the Court upon the demurrer.

Several grounds of demurrer were alleged in the Court below, but they were all abandoned on the argument in this Court, except the ground that the complaint does not state facts sufficient to constitute a cause of action.

The complaint alleges, in substance, that the relator is seized and possessed, and for ten years last past has been seized and possessed and entitled to the possession of the tract of land described in the complaint. That his title to said land was derived from the State of California, through some grantor not named, under and by virtue of the location of a school war[632]rant made under and in accordance with the provisions of the Act of the 3d of May, 1852, entitled “An Act to provide for the disposal of the five hundred thousand acres of land granted to tins State by Act of Congress, that the people of the State of California may avail themselves of the benefit of the eighth section of the Act of Congress, approved April 4, A. D. 1841, Chapter Sixteen, entitled 1 An Act to appropriate the proceeds of the sales of the public lands and to grant pre-emption rights,’ the following provisions are hereby enacted.” That said location was duly and properly made, and in all respects according to the provisions of said Act. That the relator has, by proper conveyance duly executed by the party making such location, succeeded to all the rights of said party in the land in question.

Having alleged title derived from the State under and by virtue of certain statutes, it is necessary for the plaintiff to allege specially a performance by him or his grantor of all the acts required by the provisions of those statutes. An averment that “ the location was duly and properly made, and in all respects according to the provisions of said Act,” is insufficient. The Act prescribes the conditions upon which the title of the State to the five hundred thousand acres of public land donated to her by the General Government may be secured. These conditions are conditions precedent, and their performance must be specially averred. It is for the Court, and not the pleader, to say whether those conditions have been duly complied with. The facts showing such performance must be pleaded. The sixtieth section of the Practice Act excuses the statement of the facts showing the performance of conditions precedent in cases of contract, and makes a general averment of performance sufficient. But this rule cannot be extended beyond the cases mentioned in the section. Expressio unius, exclusio alterms est. In all cases except contracts, the performance of conditions precedent must be specially pleaded.