Cothrin v. Faber

Myrick, J. — This case was heard in Department One of this court, and an opinion filed October 28, 1884, affirming the judgment of the court below. Hearing in Bank was granted, and has been had. For the reasons given in the opinion in Department the judgment is affirmed.

Ross, J., Morrison, 0. J., McKee, J., and Thornton, J., concurred.

The following is the opinion in Department One, above referred to:—

Ross, J. — The case shows that in the month of November of the year 1872, the land in controversy was public land, and was then unoccupied and subject to settlement and pre-emption under the laws of the United States; that at that time and under those circumstances the defendant, Peter Faber, possessing all the necessary qualifications, went into possession of and settled upon the said land for the purpose of making it his permanent residence, and to obtain the same by purchase from the United States. under and by virtue of the pre-emption laws, and on the following day filed in the office of the register and receiver of the United States land-office, in the district in which the land was situated, his declaratory statement, alleging his settlement and his desire to purchase the land, and setting forth all other matters required by law to be stated; that on the fourteenth day of May, 1875, said defendant proved up his claim to the land in the office of the register and receiver under and in accordance with the rules of the United States land department, and then applied to enter the land. Upon the transmission of defendant’s proofs to the com[41]missioner of the land-office at Washington, that officer, on the 7th of September, 1877, held the land to be mineral in character, but subsequently and- in February, 1878, upon additional evidence touching its character, decided it to be agricultural, and on the 15th of May, 1878, said defendant was permitted to enter the land, and having paid therefor, received from the proper officer the proper receipt.

Subsequent to the defendant’s settlement upon the land in question, and after he had made proof of his claim thereto in the office of the register and receiver, to wit, in the latter part of the year 1875, one Greene, in the state of Michigan, and one Lamar, in the state of Kansas, made affidavits, as required by statute, to obtain land under the act of Congress granting additional homesteads to soldiers, and at the same time each of them signed an application in the form required by said act of Congress, except that no description of any land was given therein. Each, also, at the same time,' together with his wife, signed and acknowledged a paper purporting to be a power of attorney, appointing-their true and lawful attorney for them, and in their name, place, and stead, “to enter into and upon and to take possession of any and all pieces and parcels of land in the state of California which we may now own, or which we may hereafter acquire or become seised of, or in which we may now or hereafter be in any way interested, located under the provisions of the second section of the act of March 3, 1873, under which laws I am entitled to select and enter 120 acres of land in addition to my forty acres homestead; and we further authorize and empower said attorney to grant, bargain, sell, devise, lease, and convey, and confirm said land or any part thereof to such person or persons, and for such price, as to our said attorney shall seem meet, and for that purpose to execute any deed or conveyance thereof.” No one was named in the instruments as attorney in