Figg v. Handley

CROCKETT, J. The action is ejectment for a portion of the sixteenth section; and so far as the case shows, the defendant is a mere intruder without title or color of right. The plaintiff relies, 1st, upon a duplicate receipt issued by the receiver of the proper local United States land office, to one Ayres, certifying that he had made full payment under the Pre-emption Act of 1841, for the land in controversy; which receipt was assigned to the plaintiff before the commencement of the action; 2d, upon certificates of purchase issued in due form by the state of California to Cox and Ajares, for the same land, and which certificates were also duly assigned to the plaintiff.

The plaintiff contends that the receiver’s duplicate receipt is a “certificate of purchase” in the sense of section 1925 of [25]the Code of Civil Procedure, and under that section is prima facie evidence of title, except as against one in the adverse possession at the date of the certificate; and it is not pretended that the defendant comes within that category. 3d, that if the receipt is not to he deemed a certificate of purchase, the plaintiff is entitled to recover under the certificates of purchase issued by the state; which, under section 1925, are prima facie evidence of title.

In considering the first point, some embarrassment arises from the fact that neither our statute, nor any act of Congress, nor any regulation of the land department, so far as we are aware, defines a “certificate of purchase” or prescribes in what cases, under what conditions, or by what officers it shall be issued. If any such statute or regulation exists, it has not been called to our attention. A practice, however, appears to have grown up in the local land offices of the United States, in disposing of certain classes of the public land, to which the term “certificate of purchase” doubtless owes its origin. The register being the proper custodian of the official plats, applications to purchase are filed with him. If the application be to purchase by private entry a tract subject to sale in that method, the application is made in writing, to which the register appends his certificate that the tract is subject to private entry, and specifying the price. The applicant then takes the application, with the register’s certificate annexed, to the receiver, to whom he makes payment, and from whom he receives duplicate receipts, one of which he retains, to be delivered up on receiving a patent, and returns the other with the application to the register, who thereupon issues a certificate of purchase, which he afterward transmits to the commissioner of the general land office, accompanied by the duplicate receipt in his possession. Thereupon the patent issues to the applicant, on his surrendering the duplicate receipt retained by him: 1 Lester’s Land Laws, p. 311. But in applications to purchase under the pre-emption laws, a somewhat different practice prevails. The declaratory statement must, of course, be filed with the register; but under section 12 of the act of September 4, 1841, the proof must be made to the satisfaction of both the register and receiver. In the very nature of the proceeding, the receiver is as fully informed as the register as to their joint decision in respect to