Eckart v. Campbell

California Supreme Court Jul 1, 1870 No. No. 2,200Published

Before: Wallace

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Holding. The court held that a certificate of location under the Act of March 28, 1868, confers only a temporary privilege to purchase, and that an applicant's failure to pay the required twenty percent of the purchase money within fifty days constitutes an abandonment of that privilege.

Issues

Whether a certificate of location vests an interest in state land prior to the payment of the initial twenty percent of the purchase money.
Whether an applicant's failure to pay the required percentage within the statutory time frame constitutes an abandonment of the application.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“It is, however, a mere privilege which he might, at his option, accept or decline within that time—and his failure to pay the twenty per cent, as required, is conclusive evidence to the land officers that he has abandoned the privilege”

“it is the payment of the twenty per cent, which converts him into a purchaser”

“It does not seem to have been the intention of the statute, that the State should be considered as having parted with any interest in the land, until she had received the payment of at least the first instalment of the purchase money.”

Synopsis

Act fob the Sale of State Lands — Constbuction of__An applicant for the ■ purchase of lands belonging to the State, under the provisions of the Act of March 28,1868, who has obtained a certificate of location from the Surveyor General, but has failed to pay the instalment of twenty per cent, of the purchase money within fifty days from the date of the certificate, will be considered as having abandoned his exclusive right to purchase, and the Surveyor General may issue a new certificate to another applicant for the purchase of the same lands.

Wallace, J., delivered the opinion of the Court:

The controversy here grows out of the provisions of the Act of March 28, 1868, providing for the management and sale of lands belonging to the State.

Eckart claims that he is a purchaser of a portion of these lands, and that he became so by having, to some extent, complied with the requirements of the Act to which we have referred.

It appears that about the 4th day of September, 1868, he made application, in proper form, to the Surveyor General for location of a half section of these lands, and obtained from that officer a certificate of location in the usual form, bearing date February 4, 1869. The land is situate in Butte County, and it was the duty of Eckart to pay to the Treasurer of that county, within fifty days after the date of his certificate of location, twenty per cent, of the .purchase money, without interest; the balance was permitted by law to remain unpaid, at the option of Eckart, it bearing interest, however, at the rate of ten per cent, per annum, and the State reserving the right to require payment of the unpaid balance at any time within one year after the passage of an Act of the Legislature for that purpose.

Eckart having received the certificate, did not offer to make any payment whatever within the prescribed time of fifty days from and after its date. He, however, tendered the proper' sum to the Treasurer on April 6, 1869. That officer refused to receive it, because not offered within time. In the meantime, the Surveyor General, considering that Eckart had abandoned his application by failing to tender the twenty per cent., as required by law, entertained an application to purchase the land made by another person.

Eckart now claims that the officer could not thus disregard his original application, but that he obtained an interest in the land applied for, by the mere fact of the issuance to him of the certificate of location in the first instance, and that such interest remained vested in him, notwithstanding his neglect or refusal to pay the required sum of twenty per cent, of the purchase money within the prescribed time.

[259]His counsel have argued the cause with remarkable ingenuity, and have examined and compared the voluminous provisions of the statute in detail for the purpose of maintaining this view. Expressions have been industriously pointed out in various portions of the Act, going to show, as it is claimed, that the holder of a mere certificate, though paying nothing, has necessarily acquired an estate in the premises, which can only be divested by proceedings to foreclose, to be instituted by the State in every instance, pursuant to Section 65 of the Act.

Eckart v. Campbell

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