« ForrigeFortsett »
made, Hawke and Shanklin, of counsel for certain pre-emption claimants, applied for a modification of the same, and were informed by the Secretary, after due consideration of the matter that his views were unchanged; whereupon Hawke & Shanklin requested that the question submitted to the Attorney-Gene
al which was granted and that official on the 12th instant sustained the decision of the Secretary as to the proper constuction of the seetion of the act of 1877. In concluding his decision, the Attorney-General says: "A simple confirmation to the State of such lands because selections were otherwise defective or invalid on account of the condition of the lands when selected, was all that was neccessary to quiet the title of the State to them.”
DECISION IN A LAND CASE.—The Secretary of the Interior has reversed the decision of the Commissioner of the General Land office in the case of the application of the heirs of T. Wallace More to purchase certain lands in Los Angeles district, California. It seems that a grant of land was made by the Mexican government to Carlos Antonio Carillo, and the territory of which Carrillo supposed himself possessed by this grant afterwards fell by purchase into the hands of Mr. More. "It was established, however, that the original grant did not cover all the land to which Mr. More supposed that he was acquiring title. The Commissioner of the General Land Office decided that the land not included in the grant might be purchased by the heirs of Mr. More under the statute which provides that when persons in good faith and for a valuable consideration, have purchased lands of Mexican grantees or assignees, which grants have been subsequently rejected, or where the lands so purchased have been excluded from the final survey of any Mexican grant, such purchaser may, under certain specified conditions, purchase the same at the menimum price established. The Secretary decides that the lands involved in this case are not of the kind contemplated in the statute, and refuses the heirs of More the right to purchase any of the lands outside of the corrected boundaries of the original grant.
Supreme Court Unwritten Opinions.
[No. 5935. Decided May 1, 1878.]
JOHN MULLAN, ET AL, Defendants and Plaintiffs. Appeal from Seventh District Court, Lake County.
WM. C. WALLACE, Judge. APPLICATION TO PURCHASE STATE LANDS. —Defendant had already bought
more than three hundred and twenty acres of State land. Also held, that the Statute under which he purchased was nonsense, and could not be executed.
STATEMENT OF THE CASE. This action was commenced February 6th, 1877, to establish the right of plaintiff to make application for, and purchase certain State land in Lake county, which had been previously applied for, and purchased by Mullen defendant, and conveyed to others. The findings in the case are, that, after the certain lands had been surveyed, and plat filed, and the Surveyor General had located them in part satisfaction of the 500,000 acre grant, the defendant, Mullen, on September 6th, 1870, filed his application with the Surveyor General to purchase the 320 acres in question ; but that before doing so he had already entered and purchased more than 320 acres of State lands, in fact many hundreds of acres, in part satisfaction of said grant. That after the said lands were listed to the State on July, 14th, 1871, the Surveyor General, on January 31st, 1874, approved the said application of Mullen, and he entered the land, made part payment and interest, received his certificate, and, on February 5th, 1874, conveyed the land to one James M. Harbin, by deed in fee simple, and then on Feb. 10th, 1874, paid up in full and received a certificate of purchase for the land. No other application had yet been made for the land. On July 7th, 1874, Harbin mortgaged a part of the land (160 acres) to James McDonald, and on November 20th, 1874, conveyed the other 160 acres to other parties, and they, on April 24th and December 14th, 1875, conveyed same to said James McDonald. On June 12th, 1876, McDonald foreclosed the mortgage against Harbin, and bought in the land (160 acres), and afterwards received his full deed. Now, on August 11th, 1876, comes the plaintiff, Silver, and files his application and affidavit with the Surveyor General for the same said 320 acres of land under title VIII of the Political Code, and on December 16th, 1876, filed in the Surveyor General's office a statement of contest of Mullen's right to purchase and hold said lands, and demanded a trial of same in court, and on December 19th, 1876, it was referred to the 7th District Court. The cause was tried, without jury, on August 7th, 1877, and the conclusions of law were that the application and aftidavit of Mullen was invalid, and of no effect. That he had no right to purchase said lands from the State; and that James McDonald, who held through him, was not the owner; but that the plsintiff, Silver, was entitled to purchase them and upon payment, etc., receive a patent therefor. Judgment rendered accordingly and for plaintiffs costs $ 19.
Defendants appealed from this judgment on November 19th, 1877.
On the appeal, the Appellant claims that his application for the land, being prior in time must be approved, if made in compliance with the then existing statute. But the act of April 4th, 1870, was then in force, amendatory of section 53 of act of Mareh 28th. 1868. And section 4th of this act, requires of the applicant, "that he or she is citizen of the United States "(or if a foreigner, then that he has filed his intention of be"coming a citizen) and the applicatiou shall be forwarded to “the Surveyor General.” This was held to be nonsense, and could not be executed, and until the code was adopted, that there was no way by which such lands could be disposed of by the State. The decision is quite important, but no written opinion was published.
Judgment affirmed—Remittitur forthwith.
((No. 10,302-Decided July, 22nd, 1878.)
THE PEOPLE OF THE STATE OF CALIFORNIA
FONG AH TUCK.
Appeal from the Sixth District Court, Sacramento County,
SC DENSON, JUDGE
STATEMENT OF THE CASE.
The defendant in this case was at the April Term of the Sacramento County Court, in 1877, indicted for the murder of a Chinawoman, named Tsen Shing, who, in her dying decla ration made shortly before her decease, charged—that defend. ant had cut her with a hatchet; beaten her with a long China pipe; a broom and iron door-bar, which he said he did, because he wanted her to pay him the money she owed him, amounting to two hundred dollars; and because, as he said, she “was of no account and could not earn the money.
On the strength of this statement defendant was arrested and tried for murder. On the trial the attending physician, and other witnesses testified that the deceased came to her death from injuries upon various parts of her person. The trial resulted in the jury finding defendant guilty of murder in the second degree.
Among instructions presented by defendant's counsel; and refused by the Court, were the following:
The dying declaration of deceased is hear-say evidence, and should be so considered by the jury.
The jury must be clearly satisfied that the woman Tsen Sing, at the time of her alleged dying statement was under a sense of impending death, and believed in a state of rewards, and punishments beyond the grave, or they should disregard the statement, which the Court refused as not being law. That the evidence tending to prove the infliction of the injuries upon the deceased was refused as not in aceordance with the facts.
That the legal value of a dying declaration as evidence depends upon the belief of the deceased that she was about to die, and that after her death she would be punished if she made false statements in her declaration, and upon the accuracy with which the declaration is reported and preserved, which in this form was refused—the Court holding that her belief was not material.
If the jury believe that the deceased had not such a belief in a future state of existence, and of rewards and punishments as would induce her to tell the truth, they are at liberty to disregard it entirely. For these and other reasons, defendant's counsel appealed from the judgment of the Court.
Judgment and order affirmed.
(No. 5944. Decided July 24th, 1878.) J. B. MILLER, Appellant, vs. J. W. HENDERSON, Respon
dent. Appeal from the Eighth District Court, Humboldt County,
J. P. HAYNES, Judge.
STATEMENT OF THE CASE. Plaintiff brought suit to quiet title to lands situated in Humboldt county, alleging that defendant's title to the same was utterly unfounded either in law or in equity, and asked that judgment be rendered in his favor as against the defendant. Defendant set up a general denial, and claimed that title to the land was vested in him. The case was tried in the lower court in 1878, a jury was waived by the parties, and it was found that upon the 14th of April, 1868 and down to date of a certain conveyance by the Tax Collector of Humboldt county, plaintiff was the owner and entitled to the possession of the land. That said land was duly assessed to plaintiff for State and County taxes, for the fiscal year ending June 30th,