Roberts v. Gebhart

De HaveN, J. The state of California on May 16, 1885, upon the application of the plaintiff, filed with the register of the proper United States land-office its selection of the land described in the complaint in lieu of a portion of a certain thirty-sixth section. This selection was approved by the register of the United States land-office, and on July 25,1885, the state issued to the plaintiff a certificate of purchase of said land. On July 16, 1885, the commissioner of the general land-office canceled the state’s selection, giving as his reason for such action that the land in lieu of which the selection was made had already served as the basis of a prior selection by the state, and on the 23d of the same month the state was notified of such cancellation. No appeal was ever taken from this ruling of the commissioner. On July 23, 1886, the defendant Gebhart was allowed to enter the same land as a homestead entry under the laws of the United States, and on September 22, 1887, he was permitted to commute his homestead entry and to make final proof and payment for the land.

It further appears that in September, 1888, the commissioner of the general land-office discovered that the order of July 16, 1885, canceling the selection made by the state was based upon a mistake of fact, and said order of cancellation was thereupon rescinded, and the state’s selection reinstated upon the records of the general land-office. The discoveiy of this mistake seems to have [69]been induced by a letter written to the commissioner by the attorney for the plaintiff some time after the month of August, 1886. November 11,1890, the commissioner again ruled that the state’s selection must be canceled because of the fact that the entry of the defendant Geb-hart had been perfected after the former cancellation of such selection and before the order for its reinstatement. Upon an appeal therefrom, taken by the plaintiff to the secretary of the interior, this latter decision of the commissioner of the general land-office was affirmed, and thereafter the United States issued to the defendant Gebhart-its patent for the land in controversy.

The plaintiff seeks by this action to obtain a judgment and decree that he is the equitable owner of the land, and that the defendant Gebhart holds the legal title thereto in trust for him, and that the other defendants, claiming under defendant Gebhart as mortgagees, accepted their mortgages with notice of plaintiff’s equitable right to the land. The defendants recovered judgment in the superior court, and the plaintiff appeals.