Churchill v. Anderson

McKinstry, J.: On the seventh day of March, 1870, the premises in controversy were listed to the State by. the Commissioner of the General Land Office, with the approval of the Secretary of the Interior, as lands in lieu of 16th and 36th sections; and on the 5th of May, 1870, the State of California, by its proper officers, issued and delivered to plaintiff its patent for the lands described in the complaint, thereby granting the same to plaintiff.

At the trial defendants offered to prove that prior to Majr, 1..67, one II. M. Ilulctt—the land being then vacant—took possession of it, built a small house, and claimed it as his own, until May 2nd, 1867, when he sold and convoyed all his right, title, and interest in it to defendant Anderson, who then went into possession of it, and lias claimed it as his own ever since; also, to introduce a certified copy of the application of said Ilulctt [57]to the State to purchase said land, with the affidavits, acceptance of the State Locating Agent, his certificate of location, and the indorsements thereon, all in one document; also, to prove that on the 12th day of June, 1872, the defendant Anderson made application in due form to the State of California to purchase said land, and that the Surveyor-General rejected said application, and refused to receive or file it, because a patent had already issued to plaintiff as hereinbefore stated.

Section 4 of the Act of April 27th, 18G3, (Stat. of 18G3, p. 501) requires that when any resident of the Slate desires to purchase any portion of a 16th or 36th section, or lands in lieu thereof, he shall file with the State Locating Agent an affidavit that lie is a citizen of the United States, or has filed his declaration of intention to become a citizen; that lie is of lawful age, and is a resident of the State, and that the lands sought to be purchased arc unoccupied, except by the applicant; that there are no improvements on said lands other than his own, and that to the best of his knowledge and belief there is no valid claim existing to said land adverse to his own, etc. The 28th section of the same act provides, that no location of land, or any proceedings in accordance therewith, shall be construed to give any title to or interest in or right of possession, etc., unless the person for whose benefit the location is made, etc., shall have taken an oath to protect and defend the Constitution and Government of the United States against all enemies, whether domestic or foreign, any ordinance or law of any State, convention, or legislature, or any rule or obligation of any society or association, etc., to the contrary notwithstanding, etc.; and that this was done without any mental reservation, etc.; and that the oath was not taken for the purpose of acquiring title, etc., in order that such title, etc., may be transferred to any person, to enable such person to evade the provisions of any law of the State, or any regulation of the General Land Office at Washington.