Hodapp v. Sharp

Rhodes, C. J., delivered the opinion of the Court, Croce-ett, J., Temple, J., and Wallace, J. concurring-

[71]In Toland v. Mandell, (38 Cal. 30), tbe Act of Congress of tbe 23d of July, 1866, to quiet land titles in California (14 U. S. Stats. 218) was presented for consideration, and tbe purpose and effect of several of its provisions were announced.

’ It was, among other things, held that tbe locator of a land warrant “must show that be is a purchaser in good faith under tbe statute. Of these facts, however, bis certificate of purchase is prima fade evidence, for it has been so declared by a statute of this State. It shows that the State has selected the land and sold it to a purchaser, and that he has made a payment thereon; that as against the State he has acquired an inchoate title — one which the State is bound to protect under her laws — thus satisfying, so far, the conditions of the first section of the Act of Congress. If the land falls within any one of the exceptions there stated, the defendants must prove it.” The defendants in this case claim that they have overthrown the prima fade effect of the certificate of purchase, by showing that the lands, in lieu of which the lands in controversy were selected, were in place at the date of the selection, and that the purchaser, therefore, was not a purchaser in good faith. The proof is that those lands were in place at the date of the Surveyor-General’s certificate — September 17th, 1869 — but there is no evidence that they were in place in 1861, the date of the location.

But if it will be presumed that those lands were in place in 1861, because they were in place in 1869, still that fact will not show that the purchaser is not a purchaser in good faith, within the meaning of the Act of Congress. The defendants assert that as many as seven different selections have been made, in lieu of one and the same parcel of a sixteenth or thirty-sixth section. It was because of blunders of that hind, that legislation of the character of the Act of July 23d, 1866, became necessary. Had the lands in lieu of which the selections were made, not been in place — that is to say, had they been within a reservation, a private grant, or the libe, and had the selection been made according to the mode prescribed, and from surveyed lands, [72]