Cooper v. Wilder

Temple, J. Action to quiet title to forty acres of land in San Diego county. The land was entered as a timber-culture claim in November, 1879, by David [193]Cooper, plaintiff's father. David Cooper died testate in July, 1881, leaving his widow sole beneficiary of his will and expressly excluding plaintiff from any share of his estate. The property was duly distributed to the widow. In 1892 a patent was issued by the United States conveying the land in terms to the heirs of David Cooper, deceased. In 1891, before the issuance of the patent, the widow, who was the sole devisee of David Cooper and the sole distributee of the estate, mortgaged the land to the defendant, who subsequently foreclosed and purchased the property at the foreclosure sale, and in due time received a deed therefor. Defendant at the trial proved his deraignment of title from the widow of David Cooper, deceased.

The question is, In whom did the title vest? Appellant claims it as heir. The defendant that it passed by the will and the decree of distribution to the widow of David Cooper. Or, if it did not vest under the will and decree, then the widow and son of David Cooper took equally.

The applicant for the government bounty is required to subscribe an oath to the effect that he makes the filing for the purpose of cultivating timber for his own exclusive benefit, and not for the purpose of speculation, and that he intends to hold and cultivate the land. He is required to break or plow five acres the first year, five acres the second year, and to cultivate the five acres broken or plowed the first year; the third year to cultivate the five acres plowed the second year, and to plant in timber, seeds, or cuttings the five acres first plowed, and to cultivate the remaining five acres; and the fourth year to plant in timber, seeds, or cuttings the remaining five acres.

To get his certificate he must prove, or if he is dead his heirs or legal representatives must prove, that he or they have planted, and for not less than eight years cultivated, that quantity and character of trees, and that there are then growing at least six hundred and seventy-five thrifty trees per acre.

[194]A failure at any time to'perform the conditions works a forfeiture. The property could not be taken in satisfaction of any debt contracted prior to the issuance of the final certificate, which could not be had until full proof of performance, as above stated, was made.