Trimmer v. Bode

Thornton, J. Ejectment for north half of section 36, township 24 south, range 10 east, Mount Diablo meridian. Judgment for plaintiff. Appeal by defendant from the judgment, and from an order denying his motion for a new trial.

The plaintiff bases his right to recover on a certificate of purchase for the land in controversy issued to his intestate, John McBride.

The defendant assails this certificate on the following grounds: 1. That McBride was not, when he made his application to purchase, a citizen of the United States, nor had he declared his intention to become such; 2. That McBride never was an actual settler on the land.

If defendant can urge these grounds, and their truth or the truth of either of them is established by the evidence, the judgment and order are erroneous. It is clear that there is no evidence in the record that McBride was ever a citizen of the United States, or had ever declared his intention to become such citizen. Whatever evidence was admitted on this subject at the trial was, before its close, stricken out by the court.

The evidence fails to show that McBride was at any time an actual settler on the land. McBride states in his testimony that his home for the last ten or twelve years, which includes the time he claims to have been a [649]settler on the land, had been at Pinkerton’s. Pinkerton’s place was not on the land. We cannot hold that McBride was a settler on the land, when at the same time he had his home at a different place.

The "defendant went on the land in November, 1885, and has resided on it ever since. During this period he has erected a house on it. He has plowed about five acres, dug a well, and fixed a road to the place. He possessed all the qualifications to purchase the land when he made the application required by law to buy it, in January, 1886. When he made this application, and at the time of the trial, he owned no other land. That the laud is suitable for cultivation is proved by the evidence in the case. When defendant made application to purchase this land, there was no one in occupation of it. He entered on it for his own benefit, and to make it his home. He has made no contract with any one in regard to this land.

Defendant made application to purchase this land in January, 1886. His application is in all respects in compliance with law.