Keema v. Doherty

By the Court, Rhodes, J.: Action to determine a contest arising in the Surveyor-General’s office, respecting the right to purchase a tract of swamp and overflowed land. In May, 1864, Levi Baldwin made an application for the purchase of the land, under the provisions of the act of April 27, 1863. (Stats. 1863, p. 591.) On the 3d day of December, the survey was returned by the county surveyor to the Surveyor-General; and on the 13th day of March, 1865, it was approved by the Surveyor-General; and on the same day was recorded in the county surveyor’s office. On the 26th day of May, 1865, Baldwin made his first payment on the land to the county treasurer, but that official never reported such payment to the Register of the State Land Office, as required by the fifteenth section of that act, and no certificate of purchase was issued to Baldwin, and it does not appear that he made any further payment either of principal or interest. On the 31st day of August, 1865, Baldwin executed a deed purporting to convey all his interest in the land to the party under whom the plaintiff claims; and on the first day of September, 1865, Baldwin died.

G. W. Doherty, under whom the defendants claim, made two applications, in the years 1869 and 1872, for the purchase of two parcels of the land mentioned in the application of Baldwin, and proceedings on his behalf were regularly had up to and including the issuing of certificates [6]of purchase—the second having been issued on the 13th day of August, 1872. The Register, in his order referring the contest to the District Court, recites that “ on December 20, 1872, Levi Baldwin, by his attorneys, * * * filed in this office his protest against the issuance of patents to George W. Doherty for any portion of the land,” etc. The plaintiff had judgment, and the defendants appealed.

The first section of the act of April 27, 1863, provides that twenty per cent, of the principal must be paid “within thirty days of the record of approval of survey or location, by the Surveyor-General in the county surveyor’s office.” Baldwin did not make any payment within thirty days after the approval of the survey was recorded in the county surveyor’s office. It was held in Eckart v. Campbell (39 Cal. 258), and Carpenter v. Sargent (41 Cal. 559), that the provision of the statute requiring the first payment to be made within the designated time was mandatory, and that the treasurer could not be compelled to receive it after that time. It is conceded by the plaintiff that the last-mentioned case would, as authority, be decisive of the question here, if sections seven and eight of the act of April 9, 1861 (Stats. 1861, p. 141), had been considered and passed upon by the court in that case. That statute does not appear to have been cited or considered by the court, but, in our opinion, it was not involved either in that case or in the case at bar. The principal purpose of the act is, as stated in the title, “to provide for the annulling of certificates of purchase of lands sold on a credit, and declared forfeited for non-payment of interest or principal,” and after having provided therefor, and for the issuing of new certificates upon a resale of the land, the act (section 7) provides that where, by neglect or otherwise, parties having purchased lands from this State, have failed to pay either interest or principal, at the time required by law, they shall have the right to make such payments, and thereupon shall have all the rights and privileges to which they would have been entitled had such failure to pay never occurred; provided, that this section shall not apply where such lands have been re-entered by third parties.” The eighth section relates to