Wormouth v. Gardner

McFARLAND, J. This is an action in ejectment to recover possession of certain lands described in the complaint. Judgment below went for plaintiff, and defendants appeal from the judgment and from the order denying a motion for a new trial.

Plaintiff claims title under a homestead entry made in accordance with the United States laws upon that subject (see Wormouth v. Gardner, 105 Cal149), and before the filing of the cross-complaint hereinafter mentioned he received a United States patent for the land in pursuance of his homestead entry. The principal contention of defendants for a reversal is in relation to what they call their equitable title. This title, as shown in the cross-complaint, is briefly as follows: It is averred that the land in contest here was within the exterior boundaries of a certain Mexican grant, made in 1835 to Juan Reed,of a certain tract of land called the Rancho Corte de Madera del Presidio—usually called the Reed rancho; that this grant was presented to the land commissioners and the United States district court, and was confirmed; that a United States patent to the rancho was issued to the heirs of Reed in February, 1885, and that the patent excluded the land in contest in this case, and that the Reed heirs supposed the land was included within said grant, and with that understanding conveyed the same to various parties, through whom, by mesne conveyance, whatever right they had to this piece of land became vested in the defendant, Jacob Gardner, whose immediate grantor was one Throckmorton. It is further averred that in January, 1875, the said Throckmorton made application to the United States land department to purchase said lands under the act of Congress entitled, "An act to quiet titles in California,” approved July 23, 1866; basing his application upon the facts hereinbefore stated, and that the plaintiff herein, Wormouth, was made a party defendant in said application, and that a contest took place in the land department between Throckmorton, upon his claim as aforesaid, and Wormouth, as a. homestead claimant; that the register and receiver of the United States land office at San Francisco, in which application was made, decided the case in favor of Wormouth and against Throckmorton; that Throckmorton appealed to the commissioner of the general land-office, who also decided the case against him; and that he [318]then appealed to the secretary of the interior, who again decided the case against him and in favor of Wormouth; but that each of said officers decided the case upon an erroneous proposition of law; and that therefore it ought to be decreed that the plaintiff holds sáid land in trust for defendant, Jacob Gardner, and should convey the same to the latter. A demurrer to this cross-complaint was sustained by the court below, but upon appeal this court held that the averments of the complaint were sufficient on their face to show that the decision of the land department had been based upon an erroneous construction of the law, and reversed the case with directions to the court below to overrule the demurrer—the court declaring, however, in its opinion, very clearly, the principles upon which it should be determined whether or not the decision of the land department was final. (See Wormouth v. Gardner, 112 Cal. 506.) After the remittitur went down the plaintiff filed an answer, in which all the material averments of the cross-complaint were denied. Upon the trial, the defendants introduced all the proceedings had in the land department in the said contest of Thockmorton and Wormouth. That contest was one entirely within the jurisdiction of the United States land department, that is, each party was endeavoring to get title to what each admitted to be United States government land, which was subject to disposition under the laws of the United States. The land department, therefore, had exclusive jurisdiction to determine all facts which arose in the contest; and in order to successfully attack the decision of the department the defendant in this present case would have to show that such decision was founded upon an erroneous notion of the law. But this he has failed to do. The department, among other things, found that the land in contest never was within the boundaries of the grant to Reed; that it was never regarded as being included in that grant, and that Throckmorton, at the time he claimed to have purchased from the Reed heirs, either knew or had good reason to believe that the land was not included in the grant, and was not a bona fide purchaser within the meaning'of the act of July 23, 1866. In Wormouth v. Gardner, 112 Cal. 506, this court said: “Whether Throckmorton did, in fact, purchase the land for a valuable.consideration, or whether after his purchase