Muller v. Carey

Sharpstein, J.:

It is claimed by counsel on both sides, that from the time of the passage of the act of April 4th, 1870, amending that of March 28th, 1868, until the Political Code was adopted, there was no law under which lien land could be disposed of by the State. In support of this they cite two- unreported decisions of this Court—Silver v. Mullan, No. 5935, and Boggs v. Mullan, No. 5637. We will assume that the learned counsel are correct, and consider the case in that light.

It appears from the agreed statement of facts and by the finding of the Court, that the appellant Carey, on the 9th day of September, 1870, filed in the office of the Surveyor-General an application to purchase the land in controversy, but it does not appear that he took any other step in the promises until the 30th day of January, 1877, when he filed his protest against the issuance of any further evidence of title to said land to the appellant Myers, who, on the 14th day of October, 1871, filed an application to purchase said land, which application was approved on the 2d of December, 1871, and a certificate thereon was issued to the said Myers on the 18th day of December, 1871. Myers paid twenty per cent, and *541 interest, as the law required, and on the 28th of November, 1877, paid in full for said land. On the 4th of November, 1878, the respondent Muller filed in the office of the Surveyor-General an application to purchase the same land, and demanded that the contest between himself and the appellants be referred to the proper court for trial.

It is stated on his behalf that there was no law in force at the time of the filing of the respective applications of the appellant which authorized such filing, and that therefore said applications and all subsequent proceedings had upon them are null and void. On the other hand it is claimed that the payments made by Myers bring his case within the provisions of the act of March 27th, 1872, which provides that, “ when application has been made to purchase land from this State, and payment made to the treasurer of the proper county for the same, in whole or in part, and a certificate of purchase issued to the applicant, the title of the State to said lands is hereby vested in said applicant, or his assigns, upon his making full payment therefor; provided, that no other application has been made for the purchase of the same lands prior to the issuance of said certificate of purchase.”

The respondent, however, insists that this act “ was intended solely, and did operate solely, to cure defective applications— applications authorized under the law to be filed, but defective in form, and was not intended to bring into being a thing absolutely void.” We think the scope of the act somewhat broader than that. At the time of its passage there was an act in force (Stats. 1869-70, p. 352) which had the precise effect that respondent insists should be given to the act of 1872.

In the act of 1872 the restrictive words and clauses of the act of 1870 are omitted, which indicates an intention to extend the operation of the law so as to include cases not embraced in the earlier act. The later act does not attempt to legalize invalid applications, but to vest title to the land in those who have paid for it under invalid applications. “The act is operative not only upon applications which were defective in form, but upon those which were defective in substance, or were invalid for any other reason. $ * jf those steps in the proceedings for the purchase *542 had been taken prior to the passage of the act, the act operated to validate and confirm the certificate.” Yoakum, v. Brower, 52 Cal. 373 .) “ From what has been said it sufficiently appears that defendant—who made first payment in the proper county—has, by virtue of the act of 1872, acquired a right to complete his purchase in the Land Office, even if the lands he applied for were not the property of the State, or were not subject to location or disposition when he filed his application.” (Rowell v. Perkins, 56 Cal. 219 .)

But it is further contended on behalf of respondent that the appellant Meyers can not have the benefit of the act of 1872, because the application of appellant Carey was filed before that of Myers. If the application of Carey had been a valid one it would doubtless be entitled to precedence. But it was not valid, and he never made any payment under it. The proviso does not relate to such applications. The application to which it refers need not to be filed before an invalid application is filed, but if filed before a certificate is issued upon such invalid application, it precludes the person filing such invalid application from acquiring any right under it. Of course it could not have been the intention of the Legislature to prefer a subsequent to a prior invalid application. We are satisfied that the person obtaining the certificate and making payments in conformity with the provisions of the act of 1872, was entitled to the benefit of that act, unless a valid application was filed for the same land before the issuance of such certificate.

Before the trial of this action one W. M. Michelson by leave of the Court filed a complaint in intervention, in which he alleged among other things, that prior to the commencement of the action he acquired by a deed of conveyance from the defendant Myers, his entire interest in said land. This complaint was afterwards, on motion of plaintiff’s counsel, stricken out. We think that order was erroneous. But as Michelson was permitted to defend in the name of his predecessor in interest, no harm may have resulted from it—particularly in view of the conclusion which we have arrived at.

The application of the respondent Muller to purchase the land was not filed until after appellant Myers had paid for it in full, and was certainly entitled to a patent for it, unless we *543 have mistaken the intention of the Legislature in passing the act of 1872.

Judgment reversed, with direction to the Superior Court of Sonoma County to enter a judgment in favor of the defendant, Jackson R Myers, as prayed in his cross-complaint.

Myrick, J„ and Morrison, C. J., concurred.