Cerf v. Reichert

Searls, C. J. — This is an application for & mandamus to compel the respondent, as register of the state land-office, to issue to the petitioner a patent to the west half of the southeast quarter, and lots 3 and 4, of section 16, in township 10 south, range 2 west, Mt. Diablo base and meridian.

An alternative writ issued, to which respondent made answer, and the cause is submitted upon an agreed statement of facts.

In July, 1868, one Otis Ashley applied to purchase the land in question, paid twenty per cent of the purchase price thereof, and in due time received the usual certificate of purchase.

In 1883 a judgment was obtained against Ashley, under which an execution issued, pursuant to which his interest in the land above specified was sold by the sheriff and purchased by the petitioner. There having been no redemption, Cerf, in due time, received a sheriff's deed of the premises, paid the residue of the purchase-money, presented a receipt showing such payment, together with his sheriff's deed, to the respondent, and demanded a deed, which was refused.

After petitioner received his sheriff's deed, Ashley assigned his certificate of purchase, but to whom does not appear, and no report of such assignment had been made to the respondent when the patent was demanded.

Upon these facts, the contention of the attorney-general is, that the respondent was not bound to deliver the patent to petitioner until the certificate of purchase, or a duplicate thereof issued in lieu thereof, was surrendered.

The Political Code was approved March 12,1872, and took effect January 1, 1873.

[362]Section 3519 of such code provided that upon final payment for any tract of state land, and “upon the surrender of the certificate of purchase by the person entitled to the same,” a patent should be prepared, etc.

No provision was made for issuing a patent, except upon the surrender of the certificate of purchase.

Section 3518 of the same code provided that if a certificate of purchase was lost or destroyed, a duplicate might issue upon the proofs and notice specified therein, which duplicate should have the force and effect of the original.