People ex rel. Wallen v. Morris

Foote, C. This action was brought to set aside a patent from the state of California of certain school lands of the five-hundred-thousand-acre grant made by the Congress of the United States to the state. Judgment was given in favor of the plaintiff, from which, and an order denying him a new trial, the defendant appeals.

According to the findings, one John T. Harrington, on the tenth day of January, 1876, filed in the office of the state surveyor-general an application to purchase the lands in controversy. Before this application was granted, one Mullan having disputed Harrington’s right to buy the lands from the state, the contest between them was referred, as by law required, to the district court of the seventh judicial district for determination. Judgment was there given in favor of Harrington as having the better right to purchase the land from the state, a certified copy of which was filed in the surveyor-general’s office. Afterward, on the twenty-first day of April, 1877, the surveyor-general approved Harrington’s application, and issued to him a certificate of purchase for the lands. This was a cash purchase for gold coin, made under and by virtue of section 3494 of the Political Code(Hittell’s) which is as follows:—■

“The unsold portion of the five hundred thousand [206]acres granted to the state for school purposes, the sixteenth and thirty-sixth sections and lands selected in lieu thereof, must be sold at the rate of $1.25 per acre, in gold coin, payable twenty per cent of the principal within fifty days from the date of the certificate of location issued to the purchaser; the balance, bearing interest at the rate of ten per cent per annum in advance, is due and payable within one year after the passage of any act by the legislature requiring such payment, or before if desired by the purchaser.”

Within fifty days of the approval of his application twenty per cent of the purchase-money was paid by Harrington, together with interest due by law.

After the certificate was issued it was duly assigned in writing by Harrington to Smith, by Smith to Barger, by Barger to Hyde, by Hyde to Rice, by Rice to the defendant. Rice paid the accruing interest to November 15, 1883, and afterward assigned the certificate to the defendant.

On the fourth day of June, 1884, the defendant surrendered to the register of the state land-office certain school-land warrants at two dollars per acre, which were issued under an act of the legislature approved May 3, 1852, entitled “An act to provide for the disposal of the five hundred thousand acres of land granted to this state by act of Congress,” etc. Upon the surrender of the warrants for cancellation, the register accepted them as payment in full for the balance due upon the land, and issued to the defendant the state’s patent therefor.