Miller v. Byrd

Belcher, C. — The plaintiff, E. 0. Miller, brought this action against five defendants to determine a contest as to which one of the parties thereto was entitled to purchase from the state a certain tract of swamp and overflowed land in Tulare County.

The court below found that all of the applications to purchase the land were null and void, and accordingly gave judgment that neither of the parties to the action was entitled to purchase the land, or any part thereof. From this judgment the defendant, Byrd, alone appeals, and the case is brought here on the judgment roll.

The only question presented for consideration and decision is as to the rights of the appellant.

The facts, as shown by the pleadings and findings, may be briefly stated as follows: During the year 1873, the appellant was the duly elected, qualified, and acting treasurer of the county of Tulare. He desired to purchase the land in controversy, and, for the purpose of doing so, on the third day of January, 1873, made an affidavit in the form prescribed by section 3443 of the Political Code; and all the facts and matters therein stated were true. On the same day the affidavit was filed in the office of the surveyor of the county, and within thirty days thereafter the surveyor made a survey of the land and completed the survey, plat and field notes thereof, and recorded them in a book kept in his office, and forwarded duplicate copies thereof, together with a copy of the application, to the surveyor-general of the state for approval. These papers were received by the surveyor-general and filed in his office on the 25th of January, 1873, and on the same day he duly approved the survey and application. On the fifteenth day of March, 1873, the appellant paid to the county treasurer of Tulare County, in gold coin of the United States, twenty per cent of the ■ .purchase price of the land, and interest on the balance thereof, at the rate of ten per cent per annum, from [153]January 25, 1873, to January 1, 1874, together with three dollars for the certificate of purchase. The county treasurer reported to the register of the state land-office the fact of the payment of these sums, and thereafter, on the 8th of April, 1873, the register issued to and in the name of the appellant a certificate of purchase for the land, signed hy him and attested by his official seal. At that time no other application to purchase the land, or any part thereof, had been made. When appellant made his application, on the 3d of January, the land had been segregated as swamp and overflowed land, under authority of the United States, for more than six months. At the time of the trial, the land was suitable for cultivation.