Cunningham v. Crowley

By the Court: The defendant’s application for the location of the lands in contest was insufficient. The statute of April 27, 1863 (p. 593), under which the application for the location was made, requires that the application be accompanied by the affidavit of three disinterested persons, stating, among other things, that the applicant is a resident of the State, and that the lands were unoccupied by any person except the applicant. The affidavit, filed on behalf of the defendant, failed to state those facts. After the location was approved, the defendant failed to make payment within the time required by the statute. The defendant, not insisting that the proceedings on his part were sufficient to authorize the issuing of the certificate of purchase, contends that the court has no jurisdiction of the subject-matter of the action, and that the certificate of purchase. is not void, but at most only [132]voidable at the suit of the State, and not at the suit of a private party who claims under proceedings subsequent to those under which the certificate issued to the defendant.

In respect to the first point, the defendant’s position is, that the court acquires jurisdiction only by virtue of the order made and certified by the officer before whom the contest arose, and that in this case there was no contest before the register—the officer who made the order referring the contest to the District Court for trial. The plaintiff attacks the defendant’s certificate of purchase, which had been issued by the register. If the defendant rightfully holds the certificate of purchase, the plaintiff has no right to have his application approved by the Surveyor-General, but if the certificate was improperly issued, then the plaintiff may proceed with his application. There is no contest between the parties in the Surveyor-General’s office, for the contest relates to the right of the defendant to the certificate of purchase already issued to him, and as that was issued by the register and not by the Surveyor-General, no contest could arise in the office of the latter in respect to the validity of the certificate. We are, therefore, of the opinion that the register was the proper officer to make and certify the order, referring the contest to the proper District Court for trial. In so holding, however, we are not to be understood as determining that an order in such case, signed by the “Surveyor-General” (who is ex officio the register), would not be sufficient.

In support of the point, that the State is the proper party to a proceeding to set aside a certificate of purchase, and that an action having that object cannot be maintained by a private person, who bears no other relation to the land than as a subsequent applicant for its purchase, the defendant relies upon the principles of law applicable to proceedings for the annulment of patents, instituted in courts of equity, where there are no special statutory provisions in respect to the parties to the proceeding. But those principles have no application here, for the statute determines who are the proper parties to a proceeding of this character. The seventeenth section of the statute of 1868 (Stats. 1867-8,