Barker v. Freeman

Sharpstein, J. This case originated in a contest instituted in the state land-office by an application of the plaintiff, in 1888, to purchase a tract of swamp and overflowed land, of which defendant, upon an application in due form, obtained in 1871 a certificate of purchase from the register of the state land-office. The contest was duly referred to the proper court for adjudication. Plaintiff filed his complaint. Defendant demurred to it, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and [534]judgment entered for defendant. Plaintiff appeals. The contention of the respondent is, that the complaint does not allege facts sufficient to show that the certificate issued to him in 1871 is invalid. Appellant insists that the facts alleged do show that it is invalid. The allegation upon which appellant relies is, that at the time of the issuing of said certificate of purchase to defendant, on the twenty-third day of January, 1871, said land had not heen surveyed, and was not subject to sale. This contention is based upon a clause in the act of the legislature of the 28th of March, 1868, which reads as follows: “The swamp and overflowed salt-marsh and tide-lands belonging to the state shall be sold at the rate of one dollar per acre, in gold coin; payable, fifty percent of the principal within fifty days from the date of the approval of the survey by the surveyor-general.” The demurrer admits that no survey had been made at the time of the issuing of the certificate to the defendant. Conceding that the application filed before the approval of the survey by the surveyor-general was invalid, it appears by the complaint that the application of the appellant to purchase the land was not filed before the year 1888, and the legislature, by the act of March 27, 1872, enacted that “when application has been made to purchase lands from this state, and payment made to the treasurer of the proper county for the same, in whole or in part, and a certificate of purchase or patent has been issued to the applicant, the title of the state to said lands is hereby vested in said applicant, or his assigns, upon his making full payment therefor, provided no other application has been made for the purchase of the same lands prior to the issuance of said certificate of purchase.” This act of the legislature was considered and construed by this court in Yoakum, v. Brower, 52 Cal. 373, and again in Rowell v. Perkins, 56 Cal. 219. In the former case we saifi: “The act is operative, not only upon applications which were defective in form, but upon those which were, defective [535]