Wright v. Roseberry

Hayne, C. Ejectment. The plaintiff was nonsuited at the trial, and appeals from, the' judgment upon a bill of exceptions. The question is, whether the plaintiff’s evidence was sufficient to make a prima facie case. His evidence consisted of two certificates of purchase and certain other documentary evidence tending to show that the land was swamp-land, and certain testimony in relation to said certificates. The case has been before the supreme court of the United States, and that court held that the documents made a prima facie case for the plaintiff. (Wright v. Roseberry, 121 U. S. 517.) That decision is conclusive in favor of the plaintiff, unless there is some material circumstance which was not presented to or considered by the court. The respondents contend that it now appears that the certificates had been surrendered and canceled, and that they are therefore no longer evidence of title. The certificates were produced at the trial by the surveyor-general, who testified that they had been surrendered when the application for the patent was made, and were then in his office; that patents had been issued for a portion of the land; and that a notice of indorsement had been made upon each certificate as follows: On certificate No. 1,659 the following: “Southwest quarter of southeast quarter of section 24, patented to Tierry Wright, April 14, 1884”; and on certificate No. 1,660 the following: “Southwest half and northwest quarter of section 36, patented to Tierry Wright, April 14, 1884.” The witness testified that patents were issued for the portions designated in said indorsements, and were for part of the lands “described in the certificates.” And the descriptions in the certificates show the number of the township, range, and meridian. The receipts upon the certificates show that the principal and interest thereon had been fully paid [89]up. It will be observed that this evidence presents two cases, viz., one in which no patent had been issued, and the other in which a patent had been issued.

1. As to the land for which no patent has been issued, we thinlc that the certificates made a prima facie case. The indorsement does not constitute a material alteration. It does not purport to change the tenor or character of the instrument, but was a mere minute or memorandum of subsequent action. Such memorandum does not purport to be a cancellation of the certificate, and was not so, unless such a consequence results as a matter of law from the transaction appearing from the memorandum, viz., from the surrender of the certificates and the issuance of patents for a portion of the land described therein. The mere surrender of a certificate of purchase does not destroy its validity as evidence of title. The law requires that it shall be surrendered before a patent can issue. (Pol. Code, sec. 3519; Duncan v. Gardner, 46 Cal. 25.) And it cannot have been the intention that the holder should lose anything by complying with the law. The surrender is not absolute, but is for a certain purpose only; and upon such surrender (and until the patent has issued) the officer is the custodian of the document for the benefit of the person entitled. It is not impossible that the officer may be negligent, or some mistake or inadvertence may occur through which a considerable period may elapse before the patent is issued. And if, during such a period, a stranger should intrude or be in possession, the owner of the certificate has the same right to have such person ejected that he had before his evidence of title was surrendered. It affirmatively appears that the surrender here was for the purpose of obtaining a patent; and therefore the surrender did not of itself destroy the effect of the certificate as evidence of ownership. Nor do we think that, if the certificate is otherwise valid, the fact that the officer has issued a patent for a portion of the land operates to de