Sullivan v. Shanklin

McKee, J. This is an application for a Avrit of mandate to compel the respondent, as register of the State land office, to issue to plaintiff a certificate under section 3571 of the Political Code.

The facts as they appear upon the petition are, that in the year 1863 the State of California selected a tract of land known and described as the southeast quarter of section eleven, toAvnship four north, range one east, Mount Diablo meridian. This land Avas selected as a portion of the public lands of the United States, to Avhich the State Avas entitled in satisfaction of certain congressional grants which liad been made to her. After selection the State sold and transferred the land, by a certificate of purchase issued under her laws, to the assignor of the petitioner. Subsequently the land Avas listed to the State by the secretary of the interior of the United States, and upon payment to the State of the purchase money for the land and surrender of the certificate of purchase, the State issued a patent for the land to the petitioner.

Aftenvards, on March 10, 1881, the petitioner applied to the United States register, at San Francisco, to purchase the same land from the United States under the provisions of an act of Congress, entitled “ an act relating to indemnity selections in the State of California,” approved March 1, 1877, and in support of his application made proof to the satisfaction of the register that he Avas the owner and holder of the State patent to the land, and an innocent purchaser of the same for a valuable consideration, etc. Upon making that proof the commissioner of the general land office granted his application, alloAved him to purchase the land from the United States, canceled the listing of the State, and upon payment of the purchase money under the act of Congress issued to him a receipt Avhich entitles him to a United States patent for the land. Yet, although the undisputed owner of the land by titles thus acquired from the United States and the State, the petitioner insists that the State patent “ Avas illegally and improperly issued, and was, and has always been, null and void, for the reason that the land sold Avas, and is, not the property of the State of California.” [249]Therefore the petitioner, in' legal effect, asks that the contract between him and the State be rescinded, and that the purchase money paid to the State be refunded, and as preliminary to that end that the register be compelled to issue to him a certificate under section 3571 of the Political Code.