Dunn v. Ketchum

California Supreme Court Jul 1, 1869Published

Before: Sawyer

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Holding. The court held that no right to purchase state land attaches under the Act until the applicant files the required certificate of oath and land description with the County Recorder. Because Dunn completed all statutory requirements before Ketchum, Dunn is entitled to purchase the land.

Issues

Did any right to the land attach to Ketchum prior to his filing of the certificate of oath and land description with the County Recorder?
Does the failure of the statute to designate a specific officer to administer the oath render the statutory requirements inoperative?

Disposition. reversed

Quotations verified verbatim against the opinion

“the right of the person making the oath or affirmation shall not be deemed to attach to such land by virtue of any proceeding under this Act, until the moment of the filing of the description and certificate of the oath or affirmation”

“Dunn first performed all the acts required by the statute, as a condition precedent to the attaching of any right under its provisions, and we think he is entitled to make the purchase rather than Ketchum.”

Synopsis

State Land—Purchase of.—Under the Act of April 27, 1863, no title to the land, and no right of possession or of purchase, inchoate or otherwise, attaches from any proceedings taken, until a certificate of the oath, prescribed by the twenty-eighth section of the statute, is indorsed on the description of the land, and filed in the office of the County Recorder.

Oath—Before what Officers to be Taken.—When a statute does not designate the particular officer by whom a required oath may be administered and certified, it may be taken before any officer having general authority to administer and certify oaths.

Sawyer, C. J., delivered the opinion of the Court: On the 10th of March, 1868, respondent, Ketchum, applied to the County Surveyor of Tulare County for the purchase of the tract of land in question, under ‘ ‘An Act to provide for the sale of certain lands belonging to the State, ” approved April 27, 1863 (Stats. 1863, 591). He at the same time subscribed and filed with the County Surveyor the affidavit required by the third, and the oath required by the twenty-eighth sections of said Act, but no certificate of the oath required by the latter section or description of the land had been filed in the office of the County Recorder of said County of Tulare at the time of the commencement of this proceeding, The County Surveyor transmitted duplicate copies of [97]the field notes of the survey of the land, and of the said affidavit and oath, to the Surveyor General, and they were filed in his office on the 11th of April, 1868.

Some two months after Ketchum’s application, to wit, on the 12th of May, 1868, appellant, Dunn, subscribed the oath prescribed by Section 28 of said Act, and filed in the office of the County Recorder of said county the certificate of the oath, indorsed upon a description of the land. He also made and subscribed the affidavit required by Section 3 of the Act, filed the same in the office of the County Surveyor, and made in due form a similar application to purchase the same land. Whereupon the County Surveyor also transmitted the proper papers to the Surveyor General, and they were filed in his office on the 25th of May, 1868. Upon demand of Ketchum, the contest for the purchase between the parties was referred by the Surveyor General, under the statute, to the District Court of the Thirteenth Judicial District, which determined the contest in favor of Ketchum. Dunn appeals.

No rights or equities of any kind are shown in favor of either party, except such as arise under the said statute, from the acts already stated. Ketchum took the first step in the proceedings to purchase, but he did not do all that was required by the statute, while Dunn commenced two months later, and did do everything prescribed. The question is, Did any right whatever attach under the statute in favor of Ketchum by the acts thus performed by him, before a right attached in favor of Dunn, in consequence of the acts performed by him? Section 28 provides that: “No location of land made under the provisions of this Act, or any proceedings in accordance therewith, shall be construed to give any title to, interest in, or right of possession or occupation of any of the public lands in this State, unless the person for whose benefit the location is made, or the proceedings taken, shall have first taken and subscribed the following oath or affirmation,” etc. And Section 29, that: “ The certificate of the oath or affirmation prescribed in the preceding section shall be indorsed on a description of the

Dunn v. Ketchum

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