Witcher v. Conklin

California Supreme Court Jun 12, 1890 No. No. 13291Published

Before: Vanclief

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Holding. A receiver's receipt for the purchase of public land constitutes a certificate of purchase under California law, establishing the holder's equitable title and right to possession sufficient to maintain an action for ejectment. The absence of a record of payment in the local land-office does not invalidate the purchaser's rights or the receipt's status as evidence of payment.

Issues

Whether a receiver's receipt for public land constitutes a 'certificate of purchase' under section 1925 of the Code of Civil Procedure.
Whether the absence of a record of payment in the local land-office invalidates a receiver's receipt as evidence of title.
Whether the failure of the trial court to make findings on the defendant's status as a pre-emptor constitutes reversible error.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The receiver’s receipt in this case contains the whole substance of an official certificate of purchase; and that ejectment may be maintained on the title and right of possession evidenced by such certificate, there seems to be no doubt.”

Synopsis

Public Lands—Pre-emption — Payment for Land — Equitable Title — Subsequent Claim. —When a pre-emptor of public land of the United States pays for the land, and takes the receiver’s receipt, he thereby becomes the equitable owner of the land, and the government cannot thereafter sell it or hold it open to pre-emption by another, and a subsequent settlement and filing upon the land by another gives no title or right whatever.

Certificate of Purchase— Construction of Code. —To constitute a certificate of purchase, within the meaning of section 1925 of the Code of Civil Procedure, it is not necessary that it should contain the word “certify.”

Id.—Receiver’s Receipt — Action of Ejectment. — A receiver’s receipt for land pre-empted in a United States land-office contains the whole substance of an official certificate of purchase, and ejectment may be maintained on the title and right of possession evidenced by such certificate.

Id. — Absence of Record in Land-office—Evidence of Pre-emption and Payment. — The absence of any record in the local land-office showing the payment of the purchase-money does not overcome the receiver’s receipt as evidence of payment. The making of such record is a matter between the officer and the government, and cannot affect the rights of the purchaser under the certificate of the receiver, which is sufficient evidence that the pre-emptor had taken all the necessary steps toward pre-empting the land.

Id.—Assignment of Certificate — Delivery — Deed of Land.—The conveyance of the land pre-empted, and delivery of the certificate of . purchase, is sufficient evidence of an assignment of the certificate, and all rights acquired thereby.

Findings — Failure to Find upon Issues Rendered Immaterial. — It is immaterial whether the court fails to find upon affirmative allegations of the answer which constitute no defense to the case as proved by the plaintiff and found by the court, and which could not alter the judgment if the court had found them all in favor of the defendant.

Vanclief, C. The action is ejectment. Judgment for plaintiff, from which, and from an order denying his motion for a new trial, the defendant appeals.

The plaintiff claimed title under a pre-emption entry made by Albert Scherfen, evidenced by a receipt for the purchase-money from the receiver of the land-office at Susanville, California, of which the following is a copy:— “No. 1402.

“Receiver’s Office at Susanville, Cal.

“November 5, 1880.

“Received from Albert Scherfen, of Modoc County, California, the sum of two hundred dollars and-cents, being in full for the east half of northwest quarter, northeast quarter of southwest quarter, northwest quarter of southeast quarter, of section No. 29, in township No. 41 north, of range No. 9 east, Mount Diablo meridian, containing 160 acres and-hundredths, at $1.25 per acre.

“$200. Andrew Miller, Receiver.”

[501]Across the face of this receipt were written, in red ink, the following words:— .

“Pre-emption under section 2259, Revised Statutes. Duplicate.”

It was stipulated by counsel that the lands described in the receipt are within the district of lands subject to entry and sale at the land-office at Susanville; that such lands had been surveyed by the government, and the plat thereof filed in said land-office, and duly approved prior to April, 1878,, after which, in April, 1878, Albert Scherfen made a pre-emption filing on said land, which ■was marked and entered upon the plats and records of said land-office; but that the records of said land-office do not show that any entry of or payment for said land by Albert Scherfen was ever made, and that there is no record of any such entry or payment in said land-office.

On February 19,1884, Scherfen, by a bargain and sale deed duly acknowledged, conveyed the land' described in said receiver’s receipt to the plaintiff, and delivered to plaintiff said receipt.

In January, 1887, the appellant entered and settled upon the land, and on January 18, 1889, made and filed in the land-office his declaratory statement as a preemptioner thereof, and paid three dollars as fees of the register and receiver.

Witcher v. Conklin

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