Copp v. Harrington

By the Court, Rhodes, J.:

The lands in controversy are subdivisions of section 10, township 12 north, range 1 west, and both parties seek to purchase them in lieu of subdivisions of certain sixteenth sections. The defendant’s application was filed in the Surveyor’s-General’s office in December, 1869. The plaintiff’s application was filed on the thirtieth of April, 1870. The defendant’s application was defective, for the reason, among others, that it failed to state that there .were “ no improvements of any kind on said land, other than those of the applicant,” as required by the fifty-third section of the Act of 1868 (Stats. 1867-8, p. 522.) It having been held in Hildebrand v. Stewart, 41 Cal. 387 , that the application in that case was fatally defective, the Act of March 24th, 1870, “to legalize certain applications for the purchase of lands belonging to this State,” was passed (see Stats. 1869-70, p. 352), to the effect that all applications theretofore made under the provisions of the Act of March 28th, 1868, for the purchase of lands, etc., “where there are not two or more applicants for the purchase of the same land, or conflicts between claimants, shall be held good and valid, ” though the affidavits may be defective “ either in form or substance.”

At the passage of this act, there were neither two applicants for the purchase of these lands, nor were there any conflicts between the claimants, within the meaning of the act. The direct effect of the act was to make the defendant’s application “good and valid.” It was approved by the Surveyor-General, on the seventh day of April, 1870, and a certificate of purchase ivas issued to- the defendant on the fourteenth day of the same month.

The plaintiff's application, as already stated, was filed April 30th, 1870, after the approval of the defendant’s application, and the issuing of liis certificate of purchase. It was made under the provisions of section 53 of the Act of 1868, as amended April 4th, 1870. (Stats. 1869-70, p. 876.) That section provides that the applicant shall “make an affidavit before any officer authorized to administer oaths *241 that he is a citizen of the United States (or if a foreigner, then that he has filed his intention of becoming a citizen), a resident of the shall be forwarded to the Surveyor-General.” Some portion of the section, it is probable, was omitted by mistake in enrolling the bill, for the clause above quoted, is nonsense. It is unnecessary, in the view we take of this case, to determine whether the plaintiff’s affidavit is "valid, or even whether under that section, as amended, an application could have been made for the purchase of any other lands than the sixteenth or thirty-sixth sections. If, however, there are pending applications which were made under the latter clause of the fifty-third section as amended, a further curative act might not be inappropriate.

The plaintiff claiming that his own application is sufficient and valid, contends that the defendant’s application, though made good and valid by the curative act of 1870, yet is not sufficient to entitle him to purchase the lands. His argument is that the operation of the act was to insert into the defendant’s affidavit the omitted matters, so that it would stand in all respects as it would have done, had it complied with the statute at the time it was filed; that it inserted therein the words: “and that there is [are] no improvements of any kind on said land, other than those of the applicant,” and that as that statement was not true, the defendant was not entitled to purchase the land. But we think the argument cannot be sustained. Ho case is brought to our notice, in which that operation was attributed to a curative act. The statute does not supply the defects in the application, but declares that, with all its defects, it shall be held good and valid. Should the statute be held to have inserted into the application the omitted statement it would make the defendant, by construction, guilty of perjury; for it is conceded that it is not true, that there were no improvements on the land, other than those of the defendant.

The plaintiff contends that it was not the intention of the statute to permit laüds to be purchased as ‘ ‘ lieu lands, ” upon which there were improvements belonging to others than *242 the applicant. There is no express provision to that effect in the act of 1868, but the plaintiff argues that the provisions of Section 53, as to. the matters required to be stated in the affidavit, necessarily lead to that conclusion. If that be a legitimate inference from those provisions, it cannot of course be deduced from a statute which omits them. The defendant’s affidavit having been declared by the statute good and valid, is to be treated as if made under a statute which did not require any statement in regard to improvements on the land sought to be purchased; and the implication claimed by the plaintiff does not arise. The act when it declares that an application shall be “held good and valid ” means that it shall be regarded as sufficient in every respect, to entitle the applicant to purchase the lands described in the application. The act provides that an application shall be held good and valid, provided there are not two or more applications to purchase the same lands, or a conflict between claimants; and the Court has no power to add a further proviso to this effect; “and>provided further, that there are no improvements on the lands other than those of the applicant.” In the absence of a proviso to that effect, we see nothing in the act which forbids a person from purchasing lands upon which there are improvements of other persons; and as the defendant’s application was first made and was duly approved, we az*e compelled to hold that his certificate of purchase is valid as against the claim of the plaintiff.

Judgment affirmed. Remittitur forthwith.