Wormouth v. Gardner

Harrison, J. Upon the former appeal in this case ( Wormouth v. Gardner, 105 Cal. 149), the plaintiff's right of recovery was based upon a homestead entry, and the receipt of the receiver of the United States land-office for the cash payment thereof. The trial of the cause below, from which that appeal was taken, was had in the year 1892, and intermediate the decision upon that trial and the decision of this court upon the appeal, a patent for the land described in the complaint was issued to the plaintiff by the United States, and upon the going down of the remittitur the defendants filed a supplemental answer and a cross-complaint, setting forth this issuance of the patent to the plaintiff, and alleging other facts by virtue of which they claimed that the plaintiff holds the patent in trust for them, and asked that the court decree that he execute to them a conveyance of the said land. To this supplemental answer and to the cross-complaint the plaintiff filed a general demurrer, [509]which was sustained, and, the defendants declining to amend, judgment was thereafter rendered in favor of the plaintiff. From this judgment the defendants have appealed.

The facts alleged by the defendants in support of their claim are, that in the year 1834, the Mexican government granted to Juan Reed a tract of land called the Rancho Corte de Madera del Presidio, which included the demanded premises within its exterior limits; that the said grant was confirmed, and in the year 1885 a patent therefor was issued by the United States to the heirs of said Reed (he having died in 1843); that after the confirmation of the grant, and while proceedings were pending in the land department to ascertain its boundaries, and before the final survey thereof had been made, the grantors of the defendants purchased from said heirs of Reed, in good faith and for a valuable consideration, a tract of land which included the lands described in the complaint, in the belief that the said tract of land was a part of said Mexican grant; that the final survey upon which the patent was issued was made in 1874, and by it the lands so purchased were excluded from the grant; that in January, 1875, one Throckmorton, who had succeeded to the interests of the aforesaid purchasers, made an application to the register and receiver of the United States land-office, at San Francisco, for the purchase of said lands under section 7 of the act of Congress, entitled “An act to quiet titles in California,” approved July 23, 1866, and that the plaintiff herein was a party defendant upon said application, and contested the same; that Throckmorton’s application was rejected by the register and receiver, and also, upon appeals therefrom, by the commissioner of the general land-office, and by the secretary of the interior, and that thereafter a patent was issued to the plaintiff for the lands described in the complaint; that after the institution of the proceedings before the register and receiver, Throckmorton died, and that the defendants herein have succeeded to his interests in the premises.