Chant v. Reynolds
Before: Crockett
Synopsis
When Landlord Bound by Judgment against Tenant—A landlord is not bound by a judgment in ejectment against his tenant, unless he had notice of the pendency of the action, and an opportunity to defend in the name of the tenant.
Former Judgment as a Bar.—The heir of the intestate is not hound by a judgment in ejectment against a tenant of the administrator, if the administrator is not hound by it.
Idem.—If a homestead claimant on public land dies before obtaining a patent, and his heir, after his death, performs the conditions and obtains a . patent, his right of action in ejectment, founded on the patent, cannot - he defeated by a judgment in ejectment, for the same land, rendered against the administrator of the estate, before the patent was issued, to which judgment he was not a party.
State Selection of Public Land.—A State selection of land granted by Congress, made before it is surveyed by the United States, is invalid.
Idem.—Selections made by the State, of land granted by Congress, which are invalid when made, do not become the property of the State under the Act of Congress of July 23, 1866, entitled “an Act to quiet land titles in California,” until the land has been certified over to the State by the Commissioner of the General Land Office.
Who may Attack a Patent.—A party who was a homestead claimant of public land, and, as such claimant, received a patent for it from the United States, is in such privity with the paramount source of title as enables him to attack a patent for it issued to another person by the State, as land selected in part satisfaction of a Congressional grant.
Recitation in Patent as Evidence.—The recitation in a patent issued by the United States to one as heir of a homestead claimant, that such person is the heir of the homestead claimant and has performed the necessary conditions to perfect the homestead claim, is sufficient proof of the facts recited, in an action of ejectment brought by the patentee.
Presumptions in Favor of Patent.—The presumptions which arise in support of a patent for public land, issued by the State, can have no force in face of the facts that the State selection of the same was originally void, and that the selection has been validated by Congress.
By the Court, Crockett, J.: 1. The judgment in the case of Reynolds v. Lowry was not a bar to the present action. Lowry entered as a tenant under Peat; and, after the death of the latter, attorned to his administrator, and Was holding the possession in this manner at the commencement of the action. There is nothing in this record to show that the administrator had notice of the pendency of the action; and it is well settled that a landlord is not bound by a judgment in ejectment against his tenant, unless he had a notice of the action and an opportunity to defend in the name of. the tenant. The present plaintiff was not a party to the action; and as the heir of Peat he was certainly not bound by the judgment if the administrator was not. Moreover, at the time of the trial of that action, Peat’s homestead claim had not been perfected, and was subject to be defeated by a failure to perform the conditions required by the'Homestead Act of the United States. Since then,, the present plaintiff, as the heir of Peat, has performed the conditions and obtained a patent. His right of action, founded on the patent, can[217]not be defeated by a judgment in a former action to which he was neither party nor privy.
2. The State selection of the land in controversy, made in 1863 upon unsurveyed public lands, was invalid. (Terry v. Megerle, 24 Cal. 609; Grogan v. Knight, 27 Id. 515; Smith v. Athearn, 34 Id. 512; Hodapp v. Sharp, 40 Id. 69; Collins v. Bartlett, 44 Id. 371; Foscalini v. Doyle, 47 Id 437.) But by the Act of July 23. 1866, entitled “an Act to quiet land titles in California,” Congress provided a plan by which certain of these erroneous locations might be validated. The first section provides that “in all cases where the State of California has heretofore made selections of any portion of the public domain, in part satisfaction of any grant made to said State by any Act of Congress, and has disposed of the same to purchasers in good faith under her laws, the lands so selected shall be and are hereby confirmed to said State,” with certain specified exceptions. The second section provides that where these selections have been made “upon land which has been surveyed by authority of the United States, it shall be the duty of the proper authorities of the State, where the same has not already been done, to notify the Register of the United States Land Office for the district in which the land is located, of such selection, which notice shall be regarded as the date of the State selection, and the Commissioner of the General Land Office shall, immediately after the passage of this Act, instruct the several local Registers to forward to the General Land Office, after investigation and decision, all such selections, which, if found to be in accordance with section 1 of this Act, the Commissioner shall certify over to the State in the usual manner.” Section three provides for cases where the selection had been made from lands which, at the passage of the Act, had not been surveyed; and in these cases also, after proper investigation, the land “ shall be certified over to the State by the Commissioner of the General Land Office.” In construing these sections we have several 'times decided that the title does not pass to the State until the land has been certified over to it by the Commissioner of the General land Office. (Hodapp v.
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