Garfield v. Wilson

Belcher, C. C. C. — This action was commenced to determine a contest between the parties as to the right to purchase from the state a certain section of swamp and overflowed land in Tulare County.

The defendant Wilson filed in the office of the surveyor-general of the state his application to purchase the north half of the section, on the fifteenth day of May, 1884. The defendant Turner filed his application to purchase the south half of the section, on the fourth day of June, 1884. The plaintiff filed his application to purchase the whole section, on the twelfth day of June, 1885; and on demand made by him, the contest was re[177]ferred to the superior court of Tulare County for adjudication.

At the trial, the plaintiff, to show his right to purchase the land, offered in evidence a certified copy of his application, which purported to have been sworn to by him before a commissioner of the United States circuit court for California. This was objected to by counsel for defendants, on the ground that it was not sworn to before an officer authorized to administer oaths, and the objection was sustained, the plaintiff reserving an exception.

It is admitted that the ruling was proper in view of' the decision of this court in Winder v. Hendricks, 56 Cal. 464; but we are asked to reconsider that case, and to now hold that a commissioner of the United • States circuit court is competent to administer oaths under the laws of this state. Without following the argument of' counsel on this point, it is enough to say that, in our opinion, the conclusions reached in the case referred to were correct, and should be reaffirmed here. It follows, therefore, that judgment was properly entered in the-court below, that the plaintiff’s application was null and void, and he had acquired no right to purchase the-land in question from the state.

But though the plaintiff had no right to purchase the-land, and even if he had not sought to purchase it, he-could still contest the right of the defendants to purchase it. (Tyler v. Houghton, 25 Cal. 26; Thompson v. True, 48 Cal. 605.) And when the contest was referred, to the court below for adjudication, that court acquired jurisdiction to hear the case, and it became its duty to-determine as to the rights of each of the parties.

The question, then, remains: Did the defendants show themselves entitled to purchase the land? In cases of this kind the settled rule is, that each party must make out his own case, and to that end must allege and prove that the land is subject to sale by the state, and that he has complied with all the requirements of the statute author