Chapman v. Buckman

Sprague, J., delivered the opinion of the Court, Crockett, J., Rhodes, C. J., and Wallace, J., concurring:

This is an action to determine conflicting claims of right between the plaintiff and defendant, Buckman, to purchase from the State lands in lieu of school section sixteen, which had been previously taken by private claim.

The complaint alleges that plaintiff’s grantor made application for the lands in controversy on the 21st November, 1867, and on the same day, bjr deed duly executed, transferred all the applicant’s interest therein to jolaintiff, and alleges the necessary steps on the part of plaintiff to entitle him to a certificate of the Surveyor General, which would authorize the County Treasurer of Mendocino County to receive payment from plaintiff on said lands, but that the Surveyor General refuse to approve the location in plaintiff’s behalf, or to give him the required certificate of purchase; and further alleges that defendant, on the third day of December, 1867, made application to purchase the same lands, and filed with the proper locating agent certain affidavits, which application and affidavits said locating agent forwarded to the Surveyor General, whereupon the Surveyor General entered into the record-book of his office a statement of the case, together with a direction that said parties are referred to the Seventh Judicial District Court, Mendocino County, for- a final determination of their conflicting claims or contest for said land.

The answer of defendant denies that the Register or Receiver of the United States Land District in which the lands in controversy are situate, or either of them, accepted the selection of said lands as made by plaintiff’s grantor, Purdy; denies that said Purdy, desired to purchase said lands; alleges that plaintiff was desirous of purchasing the same, but being disqualified from so doing by reason of having, before said application in the complaint mentioned, in fact [679]located in his own name, and indirectly in the name of others, for his benefit, more than three hundred and twenty acres of land within the State of California, under the Acts and law mentioned in plaintiff’s complaint; and further avers that the application by plaintiff’s grantor, Purdy, for the land, was made at the instance and for the benefit of plaintiff; that plaintiff paid all the expenses of the application, and as soon as the same was made and filed with the affidavits of Purdy, he, Purdy, on the same day, without any consideration, conveyed the lands so applied for by deed to plaintiff; and further', by way of cross complaint, the answer alleges facts showing defendant’s right to a certificate of location and purchase of said lands, upon his subsequent application of December 3, 1867, and prays the judgment of the Court that he is so entitled.