Kreamer v. Earl

Paterson, J. This is an action to compel the defendant Earl to convey to plaintiff, who is special administrator of the estate of Henry Charles, deceased, the legal title to the northeast quarter of the northwest quarter of section 22, township 8 south, range 8 west, San Bernardino meridian, and to cancel a mortgage thereon given by Earl to his co-defendant Egan.

The facts found by the court show that in September, 1875, Henry Charles and F. P. Forster, brother of defendant M. A. Forster, claimed the right adversely to each other to acquire the title to several tracts of public land, including the land in controversy, and on that day entered into a written agreement, by the terms of which Forster agreed to convey to Charles all the right, title, and interest which he then held or might thereafter acquire in the lands described in the agreement, upon the payment to him by Charles, within sixty days, of the amount paid by Forster to Mullen & Hyde, of San Francisco, for said lands, together with interest thereon at one per cent per month. On November 8,1875, Charles paid to Forster the sum of $1,056, which was more than enough to pay for the lands described in the agreement,, [114]and thereupon Forster executed and delivered to Charles a deed of conveyance, including the lands in controversy. Forster had previously, for the purpose of acquiring the title to the lands described in the agreement, together with other public lands, employed Mullen & Hyde to discover portions of school sections which had been lost to the state, and to procure lands in lieu thereof, under the provisions of title 8 of part 3 of the Political Code. In pursuance of their employment, they procured' one Sheldon to make an application in due form, under the provisions of the code referred to, for certain lands, including the lands in controversy, on March 5, 1875. On April 16, 1875, the surveyor-general applied to the register of the United States land-office, asking that all of the lands described in Sheldon’s application be accepted in part satisfaction of the grant to the state in lieu of certain portions of school sections which had been lost to the state, and at the same time located and selected the lands described in the application for the use and benefit of the applicant. On November 15,1875, the surveyor-general’s selection was duly approved by the commissioner of the general land-office, and by the Secretary of the Interior, and thereupon the state became the owner of the lands. About the same time, Mullen & Hyde procured other persons to make applications for other portions of the land which Forster had agreed to secure and convey to Charles. Believing the application to be void because they had been made before the approval of the township plat, Mullen & Hyde procured other persons to file applications for the same lands, in March, 1876. Sheldon’s application was abandoned, and one Weber filed on the lands described therein. His application was approved by the surveyor-general in December, 1880, and on February 19, 1881, the register of the land-office issued to him a certificate of purchase for the lands described in his application, including the lands in controversy. F. P. Forster died intestate,. March 15, 1881, and the defendant M. A. Forster was appointed administrator in the following month. In