McFaul v. Pfankuch
Before: Haynes
Synopsis
School Lands—Contest of Applicant against Holdeb of Cebtifioate of Pub-chase—Statute of Limitations.—An applicant for the purchase of school lands is entitled, upon an order of the surveyor-general, referring his contest to the superior court, to maintain an action for the determination of his right to purchase such land, as against one to whom a certificate of purchase has been issued, if the state is not barred by the statute of limitations from cancelling the certificate of purchase upon sufficient grounds, and no other statute of limitations is applicable to such a contest, if no patent has issued under the certificate.
Id__State not a Necessary Party—Jurisdiction of Superior Court—Order of Surveyob-Genebal in Nature of Interpleader.—The state is not a necessary party to an action to determine whether the holder of the certificate of purchase was not entitled to purchase; but the order of the surveyor-general referring the rights of 'the parties to the superior court upon a proper contest, without which that court has no jurisdiction to act, is in the nature of a bill of interpleader and binds the state by the result of the action.
Id.—Priority of Contestant with State—Right of Contest Statutory— Certificate of Purchaser not Conclusive. — The right of an applicant to purchase school lands to contest the right of a holder of a certificate of purchase is statutory, and it is immaterial whether he has any priority with the state, which is the paramount source of title: nor is he concluded by the certificate of purchase in such a contest, although the certificate is made jprima facie evidence of title in a collateral proceeding as against an intruder.
Id.—Fraud of Pubohaseb—Injury to Contestant Immaterial__Whether the fraud of the holder of the certificate of purchase, in obtaining the certificate, is an injury to a subsequent applicant or not cannot affect his statutory right to contest the certificate.
Id.— Retubn of Pubohase-money not Required.— The statute does not make it the duty of the contestant to refund the money paid by the purchaser for Ms certificate of purchase, nor to offer to credit the purchaser with such payment, and he need not allege in his complaint an offer to return the purchase-money so paid.
Id.—Pleading—Contents of Application—Avebment of Tbuth—Genekal Dejiubbeb. — Where the complaint of the applicant alleged the contents of his affidavit and application to purchase, which stated that he was an actual settler upon the land, and that he desired to purchase the land for his own use and benefit, and had made no contract or agreement to sell the same, and further alleged that “at the time of making said affidavit and application, all the matters and things therein stated were, ever since have been, and now are true,” an objection that the complaint does not show that at the date of the commencement of the action the plaintiff was an actual settler upon the land, or that he then desired to purchase it for his own use and benefit, cannot be urged upon general demurrer.
Haynes, C. Respondent Pfankuch, on January 6, 1882, applied to purchase certain school lands from the state. His application was approved March 15, 1883, and on August 28, 1883, a certificate of purchase was issued to him. On August 7, 1891, appellant Woodward applied to purchase the same lauds, and on October 5, 1891, appellant McFaul also applied to purchase said lands. Protests were filed by McFaul and Woodward, respectively, against the right of Pfankuch to purchase, and the surveyor-general referred the contests to the superior court of Mendocino County, and McFaul, in proper time, filed his complaint to determine the rights of the several parties to purchase. Woodward answered, and filed a cross-complaint against all the other parties. Reid and wife and Pfankuch demurred to McFauVs complaint and Woodward’s cross-complaintS The demurrers were sustained, and judgment entered dismissing the said complaint and cross-complaint.
The Reids are alleged to have or claim some interest as assignees or purchasers from Pfankuch. The demurrers allege insufficiency of facts and the several statutes of limitation.
It is contended by respondents that McFaul and Woodward are not in privity with the paramount source of title, and are [402]therefore barred by the statute. Section 3414 of the Political Code expressly recognizes contests “concerning a certificate of purchase or other evidence of title.” That contests of this character may be maintained after such certificate is issued has been repeatedly decided. (Gilson v. Robinson, 68 Cal. 539; Gould v. Lanterman, 70 Cal. 247; Jacobs v. Walker, 76 Cal. 175.) It has been held that a contest cannot be made before the surveyor-general in respect to the right to purchase land for which a patent has issued to one of the parties. (Somo v. Oliver, 52 Cal. 378.) Whether there is any other limitation than that arising from the issuance of the patent does not appear to have been decided.
Whether the state could be barred by lapse of time, where the patent has not been issued, it is not necessary to determine, as the statutory period for barring actions brought by the state had not expired. (Code Civ. Proc., sec. 315.) The state was therefore not barred from maintaining an action to cancel the certificate of purchase issued to Pfankuch, if sufficient grounds existed therefor. It is obvious that if the state is not barred it i,% at liberty to grant the lands to any one who has a right to purchase, and conforms to the requirements of the statute in that behalf, if it shall be found that the prior applicant was not entitled to purchase under his application; nor is the state a necessary party to an action to determine that question. (Cunningham v. Crowley, 51 Cal. 132, 133.) The statute provides how that question shall be determined. It is not a question that the plaintiff may litigate of his own mere volition. A preliminary step must be taken by invoking the action of the surveyor-general, and the order of that officer referring the rights of the parties to the determination of the superior court is not only necessary to enable the plaintiff to invoke the action of the court, but without such order the court has no jurisdiction to hear or determine the rights of the parties. (Pol. Code, sec. 3415; Allen v. Dake, 50 Cal. 80; Keema v. Doherty, 51 Cal. 3; Vance v. Evans, 52 Cal. 93; Danielwitz v. Temple, 55 Cal. 42.) The order made by the surveyor-general is in the nature of a bill of interpleader, and binds the state by the result of the action, in which each of the applicants to purchase becomes an actor, and must establish his right to purchase to entitle him
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