Merrill v. Clark

California Supreme Court Jul 16, 1894 No. No. 18284Published

Before: Garoutte

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Holding. A pre-emptor who has completed final proof and payment for land may validly transfer the property before the patent is issued, as the statutory prohibition against alienation applies only to the transfer of the pre-emption right itself.

Issues

Whether a deed executed by a pre-emptor after final proof but before the issuance of a patent is void under section 2263 of the Revised Statutes of the United States.

Disposition. affirmed

Quotations verified verbatim against the opinion

“all assignments and transfers of the right hereby secured prior to the issuing of the patent shall be null and void.”

“the interdiction found in the statute was only intended to apply to a transfer of the right of pre-emption.”

“the assignment and transfer contemplated by this section is an assignment and transfer made before final proof and before the taking of the affidavit prescribed by section 2262 of the United States statutes.”

Synopsis

Pre-emption—Transfer by Pre-emptor After Proof and Payment.— Although a pre-emptor cannot transfer the right of pre-emption before final proof and payment for the land, he may, after final proof and payment of the purchase price, make a valid transfer of all of his rights.

Id,—Subsequent Issuance of Certificate and Payment.—After the. pre-emptor has paid the purchase price and made his final proof, the law demands no further act from him, and it is the duty of the government to issue a certificate of purchase and the patent based thereon; and the fact that the transfer of his rights is made before the issuance of his certificate of purchase will not invalidate the transfer.

Id.—Bargain and Sale Deed From Husband to Wife—After-acquired Title.—Where a husband, as a pre-emptor of land, executed and delivered to his wife a bargain and sale deed of the land, after final proof and payment for the land, and before the issuance of a certificate of purchase, such deed conveys all after-acquired title, including the right acquired by the certificate of purchase, and the perfect title acquired by the issuance of the patent, as against a subsequent transfer from the husband to another person made after patent obtained.

Id.—Findings—Omission—Statute of Limitations Pleaded by Respondent.—The failure of the court to find upon a plea of the statute of limitations set up by the respondent is entirely immaterial to the appellant.

Garoutte, J. This is an action of ejectment to recover possession of one hundred and twenty acres of land in Lassen county, in this state. The respondents had judgment in the court below, and from this judgment and an order overruling appellant’s motion for a new trial this appeal is taken.

Both parties are claiming title from one W. H. Clark. The facts material to a disposition of the litigation may be briefly stated, as follows: W. H. Clark, the husband of respondent Mary, upon the fifth day of November, 1881, made final proof upon his pre-emption claim to this tract of land before a deputy county clerk of Lassen county. He also, at the same time, made the affidavit provided by section 2262 of the Revised Statutes, and paid for the land, with all legal costs and charges. The final proof, affidavit, and money were delivered to the register of the land office at Susanville, and, by reason of the neglect or dishonesty of the said register, no further action towards the securing of a patent was taken for many months. Shortly subsequent to the date of final proof, W. H. Clark, by bargain and sale deed, transferred the land to the respondent Mary Clark. Subsequent to this event the certificate of purchase was issued, and the patent to Clark followed in due course thereon. Clark thereupon sold the land to appellants, and basing their rights upon said transfer they have brought this action in ejectment. The deed from Clark to his wife was recorded in the recorder’s office of Lassen county prior to the making of the second deed to the aforesaid plaintiffs.

It is not necessary to determine the character or amount of interest in this realty that passed to the wife under the deed from her husband. Whether he had any title at that time that could be transferred is imma[370]terial, for his deed was such as to convey all after-acquired title, and when his right eventually ripened into a perfect title by the issuance of the patent, such title passed to his grantee regardless of any intervening deed given by him to other grantees, with notice by them of the prior deed. The application of this elementary principle of law to the facts before us dispose of the entire case, unless Clark’s deed to his wife was made in violation of section 2263 of the Revised Statutes of the United States. That section provides: “Prior to any entries being made under and by virtue of the provisions of section 2259, proof of the settlement and improvement thereby required shall be made to the satisfaction of the register and receiver of the land district in which such lands lie, agreeably to such rules as may be prescribed by the secretary of the interior; and all assignments and transfers of the right hereby secured prior to the issuing of the patent shall be null and void.” It is upon the last clause of this section that plaintiffs stand, and insist that the deed to Mary Clark was void and carried no title.

Merrill v. Clark

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