sufficient to meet the requirement of the Rep. 379, is rather in line with the conlaw in that regard. We proceed to notice tention of appellants; but since plaintiff bad some of the authorities upon which they rely been clothed, maintained, educated, and to support this contention. Judge Story, in treated as a daughter by the Grants, it could his Equity Jurisprudence (section 261), states be held that she had received full considerathe rule as follows: "But a more general tion for the services rendered by her. The ground, and that which ought to be the decisive factor in Owens v. McNally, 113 governing rule in cases of this sort, is that Cal. 444, 13 Pac. 710, 33 L. R. A. 369, was nothing is to be considered as a part per the subsequent marriage of McNally. Ilence formance which does not put the party into it was held that the enforcement of the cona situation which is a fraud upon him, un tract would wrong an innocent third party. less the agreement is fully performed." The Forrester v. Flores, 64 Cal. 24, 28 Pac. 107, authorities all agree as to the rule, although and Salfield v. Sutter County, 94 Cal. 516, it is expressed in varying phraseology. For 29 Pac. 110.), are based upon the familiar instance, Professor Pomeroy, in section 1409 doctrine that the payment of money alone is of his work on Equity Jurisprudence, says: not sufficient to justify specific performance. "The ground upon which the remedy in such Flood v. Templeton, 118 Cal. 374, 83 Pac. Cases rests is that of equitable fraud. It 118, was held to be not a case for specific would be a virtual fraud for the defendant, performance, for the reason that there was after permitting the acts of partial perform no showing as to the value of the land at the ance, to interpose the statute as a bar to time of the contract, or that plaintiff sufthe plaintiff's remedial right. * * * The fered any detriment, or that the promissor most important acts which constitute a sufii gained any advantage by said contract, and cient part performance are actual possession, also, since plaintiff forebore to press a fixed permanent and valuable improvements, and monetary demand an action at law was the these two conibined." Plaintiffs have brought proper remedly. themselves clearly within the rule as thus In most of the cases cited where specific announced. If it would not be a fraud upon performance was decreed, personal services them to withhold specific performance, then were the basis for the action, but in some of we mistake the meaning of the expression. them the conveyance of property was the They have not entered into the actual pos consideration. There is no difference, howsession of the real property and made valua ever, in principle, if the elements of equitable ble improvements upon it; but, relying on cognizance are present. In the case at bar, the promise of the mother, they surrendered assuming as we must, that all the facts to her the possession and deprived themselves alleged in the complaint are true, only one of the use of the property and the opportuni- conclusion can be reached in consonance with ty and means to make valuable improve the principles of equity and justice and in ments thereon. In an action to enforce spe- harmony with the best considered cases. No cific performance of such a contract, the case cited appeals more strongly than this surrender of possession of real property by one to the conscience of the chancellor. There one party to the other in reliance upon the is no uncertainty as to the intention of the latter's promise must be considered, in con parties, and as to Mrs. Stewart the contract templation of equity, a factor as persuasive was eminently fair, just and reasonable. She as though the former had acquired posses received property more than 30 years ago sion by virtue of said contract.

from each of the children, of the value of Of the cases cited by appellants in support nearly $1,000, upon the promise that she of their contention, in the following specific would leave to the promisee an indefinite performance was decreed: Nowack v. Ber amount-it might be much less than she reger, 133 Mo. 24, 34 S. W. 489, 31 L. R. A. ceived, and at some uncertain period as it 810, 51 Am. St. Rep. 603 ; Quinn v. Quinn, developed, more than 30 years thereafter. 5 S. 1. 328, 58 N. W. 808. 19 Am. St. Rer. As a cold business proposition, no one would 87.5: Svanburg v. Fosseen, 73 Vinn. 330. 78 be so liberal as were the children. They deN. W. 4, 43 L. R. A. 427, 74 Am. St. Rep. prived themselves of valuable property at a 4X; Lothrop v. Marble, 12 S. D. 511. 81 time when thes probably could have used it N. W. 88.7, 76 Am. St. Rep. 026; and Kofka to great advantage and profit for an uncerv. Rosicky, 11 Yeb. 328. 59 N. W. 788, 2.5 tain amount that they might never live to enL. R. A. 207. 43 Am. St. Rep. 68.). In Dicken joy. In fact, the mother did survive one of V. JcKinley, 103 Ill. 318, 45 X. E. 134, 54 them. The circumstances of the transaction Am. St. Rep. 471, it was held that the act reveal clearly the adequacy of the consideraof statutory adoption is not sufficient to take tion and cannot be aided by any comment in the case out of the statute of frauds. In which we might indulge. Shaban v. Swan, 18 Ohio St. 25, 26 X. E. 222, Again, the mother received real property 29 Am. St. Rep. 517, Sliecific performance as a part of the consideration, and the pecuwas denied because the acts relied upon liar value of such property is a decisive elewere not necessarily referable to the con ment in actions for specific performance. tract, but might have been prompted merely | If the children had partei simply with perby benevolence and affection. Grant 1. sonal property, under the decisions it might Grant, 63 Conn. 530, 29 Atl. 15, 38 Am. St. be that application would bave to be made

to the law side of the court; but here no section 33, township 21 south, range 19 east, such contention can be maintained. If the Mount Diablo base and meridian, being land plaintiffs did not present a case for specific uncovered by the recession of the waters of performance, then it is idle to assert that it Tulare Lake, and which thus became state is ever proper to decree specific performance lands. It is averred in the complaint that of an oral agreement to devise property to a said section 35 was surveyed and sectionized particular individual. The decision of the and the survey made to conform to the Unitcourt below upon the admitted facts was ed States surveys, and a plat of the survey, just and equitable, and a contrary view is with copy of the field notes, duly filed in intolerable in contemplation of fair dealing

the office of the state surveyor general on and good conscience.

June 7, 1899, and said land became subject The judgment is affirmed.

to sale by virtue of the act approved March

24, 1893. St. 1893, p. 311, c. 229. On July We concur; CHIPMAX, P. J.; ILART, J. 15, 1903, defendant filed in the office of the

state surveyor general bis application to pur

chase the whole of said section, which was (6 Cal. App. 139)

approved by said surveyor general, and on EWBANK v. MIKEL. (Civ. 338.) November 27, 1903, a certificate of purchase (Court of Appeal, Third District, California. of said lands was issued to defendant. It July 30, 1907.)

is averred that in certain essential particu1. PUBLIC LANDS–CONTEST-ACTION-LIMITA- | lars, specifically set forth, the affidavit of deTIOX. Under Pol. Code, $ 3115, providing that, aft

fendant accompanying his said application er an order is made by the surveyor general re

was untrue; that' on June 12, 1905, said ferring to the court a contest concerning the pur land was vacant and unoccupied, and on that chase of public lands, an action may be brought day plaintiff entered into possession of the to determine the contest, and that the pro

east half of said section, with the intention duction of a certified copy of the entry made by the surveyor gives the court complete jurisdic

of settling thereon, and pursuant thereto contion, and section 3117, providing that, unless structed a dwelling thereon; that on said the coutestant commences his action within 60 day he filed his application with the said days after the order of reference is made, his rights in the premises and under his application

surveyor general to purchase said land, and to purchase cease, the limitation begins to run at the same time made protest against the from the making and entry of the order, and issuance of further evidence of title to denot from the time contestant is notified thereof,

fendant, and made demand that the contest or from the date of the certified copy of the entry.

thereby created be referred to the superior 2. SAME - ATTACKING ATTACKING PATEXT SUIT BY

court of Kings county for adjudication of ANOTHER THAN THE STATE.

the respective rights of the parties to purA contestant of the right to purchase public

chase said east half of said section; that lands having failed to bring his action to determine the contest within 60 days of the making

on June 30, 1905, the surveyor general made of an order by the surveyor general, referring and entered of record an order of that date the contest to the court, so that under Pol. Code, referring the contest to said court, which § 3417, his rights in the premises and under his application to purchase had ceased, and he not

said order is fully set forth in the complaint; having taken any steps to acquire any further

that thereafter, to wit, on July 11, 19905, the or new right, and a patent having been issued said surveyor general caused the said profert to the contestee, he is not in privity with the of reference to be certified and plaintiff's atstate by reason alone of his occupation of the land as a settler, with the intention of purchas

torney notified thereof by letter of the same ing it, so as to authorize his maintaining an date; and that said profert was received action attacking the patent, on the ground that and filed in the office of the clerk of said it was obtained by fraud, and for a decree, and that the patentee holds the title in trust for

court on July 13, 1905. It is then averred plaintiff.

that with intention to deceive the surveyor

general into believing that "full 60 days had Appeal from Superior Court, Kings Coun

elapsed since the issuance of the said proty; M. L. Short, Judge.

fert and order of reference aforesaid." defendAction by Thomas Ewbank against J. A.

ant, on August 30, 1905, caused the county Mikel. Judgment for defendant. Plaintiff

clerk of said county "to certify to the said appeals. Affirmed.

surveyor general that, up to that date, no Robert W. Miller, for appellant. H. P. action had been commenced in the said su. Brown and Chas. G. Lamberson, for respond perior court" by plaintiff herein, in the matent.

ter of said conflicting claims, which said cer

tificate defendant telegraphed to said surveyCHIPMAN. P. J. Action to obtain a de or general and demanded that a patent iscree that the legal title to certain state sue to defendant; that thereafter the said land, evidenced by a patent from the state to

surveyor general issued to said defendant a the defendant, is held by defendant in trust patent for said land; that resting in the befor plaintiff. A general demurrer to the lief that he had until September 10, 1903, or complaint was sustained without leave to 60 days after July 11, 1905, in which to amend, and plaintiff appeals from the judg commence bis action in said court, plaintiff, ment dismissing the action.

on September 6, 1905, commenced said acThe land in question is the east half of tion. There is no allegation of intentional

wrongdoing on the part of the surveyor general in the issuing said patent, but only that he was deceived by said certificate of said clerk and by the records in his office into the belief that full 60 days had elapsed since said order of reference and profert were made. The present suit was commenced September 21, 1905.

Assuming the averments of the complaint to be true, as we must, it may be conceded, as contended by plaintiff, that defendant's application was and is invalid; and that, the contest having been referred to the superior court for determination, the surveyor general was without authority to issue a patent, until the final judgment of the court had been duly certified to him. It must also be conceded that equity will control a patent in the hands of one who has procured its issue to him in fraud of the rights of the rightful owner. It was so held in McFaul v. Pfankuch, 98 Cal. 404, 33 Pac. 397, and Mery v. Brodt, 121 Cal. 338, 53 Pac. 818. Thus much conceded, still the judgment on the demurrer must be affirmed. Section 3117 of the Political Code is as follows: "Unless the party contestant commences his action within sixty days after the order of reference is made, his rights in the premises and under his application cease.” The contest is certified to the court when the order of the surveyor general, as register of the land office, is made and entered in the proper record book. The 60 days mentioned in the statute begin to run when such order is made and entered, and the contestant may at once commence his action. The certified copy of the entry of the order may not be furnished until the trial, as it is but evidentiary of the fact that the order of reference was made. Sherman v. Wright, 133 Cal. 539, 65 Pac. 1096, where it was said: "Hence it is plain that the order of reference and the entry thereof constitute the act of certifying the contest to the district court." The contention of appellant that the 60 days began to run from the date of the certified copy of the order of reference sent to plaintiff's attorney finds no support in any proper construction of the statute or in the decisions of our courts. Plaintiff instituted the contest and was bound to take notice of the entry of the order of reference in the surveyor general's office and govern himself accordingly. Plaintiff is in error in his contention that it was the duty of the surveyor general to notify plaintiff of the order of reference, and that until he did so the time prescribed by the statute did not begin to run. It is true that section 3415 provides that complete jurisdiction of the court attaches upon the filing of the copy of the certificate of reference with the clerk, but jurisdiction may also attach by the filing of the complaint before such filing of the certificate. Section 3+15 cannot be held to modify or change in any way the plain provisions of section 3117. The running of time under the latter section,

91 P.-43

as a statute of limitations, in no wise de pends upon the jurisdiction of the court.

We are next to consider the effect upon plaintiff's rights through his failure to commence his action in time. This is very clearly pointed out in Greenwade v. De Camp, 72 Cal. 448, 14 Pac. 177: "The effect was to work a forfeiture of all rights of plaintiff, both in the application and in the premises." He could have filed another application, and thus have acquired a right (Id.), but he could not, upon an application thus forfeited, successfully pursue his rights under the action commenced by him after the statute had run against his right to commence the action.

Conceding that the averments of defendant's fraud are sufficient in law, it was still incumbent upon plaintiff to connect himself with the paramount source of title to entitle him to bring the action. Defendant's patent may be invalid by reason of the facts averred in the complaint, and yet this fact would be of no avail to plaintiff as a stranger to the title. Mery v. Brodt, 121 Cal. 332, 53 Pac. 818. There must be a privity of title between plaintiff and the state. He must possess some right, title, interest, or claim in or to the lands acquired before. the final transmission of title and which is recognized by the laws of the state as valid. Robinson v. Forrest, 29 Cal. 320. In Plummer V. Brown, 70 Cal. 516, 12 Pac. 405, the court said: "To entitle the alleged owner, however, to equitable relief, he must show that he occupies such status as entitles him to control the legal title.” But we have seen (Greenwade v. De Camp, supra) that plaintiff forfeited all right to the land and to his application by his failure to commence his action in time, and it is not shown that he took any steps to acquire any further or any new right. He has therefore failed to state a cause of action.

Appellant contends that he is in privity with the state by reason alone of his occupation of the land as a settler, with the intention, as he alleges, of purchasing it, citing Perri v. Beaumont, 91 Cal. 30, 27 Pac. 534; also, Hinckley y. Fowler, 43 Cal. 64. In the case of Perri v. Beaumont, supra, plaintiff by his complaint showed that he was an actual settler upon the land, having made valuable improvements thereon, and being desirous of purchasing the premises, and that he possessed all the requisite qualifications to purchase at the time he filed his application ; but he failed to show that the land was surveyed at the date of his application to purchase. He also showed that defendant's application and certificate of purchase were invalid, and that he had no right to a patent. The trial court sustained a general demurrer to the complaint, and, plaintiff failing to amend his complaint, gave judgment for defendant. Upon appeal the court held that plaintiff had the right to institute the contest, and though not himself entitled to judgment, as he failed to allege that the land

was surveyed, he had sufficient interest to entitle him to prevent defendant from obtaining a patent; that by its judgment the trial court placed defendant in position to obtain a patent which would have been conclusive against plaintiff ; that the demurrer was improperly sustained; and that plaintiff should have leave to allege by amendment that the land was surveyed when he made his application. If plaintiff here bad commenced his action in time, thus preserving his right under his application, the case of Perri v. Beaumont would apply. But suffering a forfeiture of all his rights, by his own act, he ceased to be in privity with the state. His status was altogether different from that of l'erri in Perri v. Beaumont, who was a qualified purchaser, and who was in court upon a complaint insufficient in one respect as to his own rights, but sufficient to compel an adjudication of defendant's rights. The right to set aside the patent rests alone with the state. People v. Stratton, 25 Cal. 212; Carder v. Baxter, 28 Cal. 99; Peabody r. Prince, 78 Cal. 511, 21 Pac. 123.

The judgment is affirmed.

[blocks in formation]

(6 Cal. App. 93) ALBERGER v. KINGSBURY, Surveyor Gen

eral. (Civ. 356.) (Court of Appeal, First District, California. July 10, 1907. Rehearing, Denied by

Supreme Court Sept. 5, 1907.) 1. PUBLIC LANDS-GRANTS TO STATE FOR


Land is within a reservation, within Rev. St. U. S. $ 2275 [U. S. Comp. St. 1901, p. 1381], appropriating and granting to and authorizing the state to select other lands where the school sections are within any reservation, provided, however, that the state shall not be prevented from awaiting the extinguishment of the reservation, where it has been withdrawn by the Secretary of the Interior “pending determination as to the advisability of including the same within a forest reservation.” 2. MANDAMUS-TO SURVEYOR GENERAL-COM


The surveyor general being under Pol. Code, 8 3398, the general agent of the state for location in the United States land office of the unsold portions of the land granted to the state for public schools and lands in lieu thereof, and it being made his ministerial duty by such section, when application for purchase of any of said lands is made to him, to communicate with such land office and ask that the land described in the application be accepted in part satisfaction of the grant under which it is sought to be located, mandamus will lie to compel him to receive an application for purchase of such lands and make such communication to and request of such land office.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 33, Mandamus, & 181.]

Application by William C. Alberger for writ of mandamus to W. S. Kingsbury, surveyor general. Writ granted.

F. D. Brandon, for petitioner. C. S. Webb, Atty. Gen., for respondent.

COOPER, P. J. This is an original application to this court for a writ of mandate to compel the defendant to receive and file the plaintiff's application to purchase. fronti the state of California section 5 of township, 20 X., rage 17 E., M. D. M., being in Lasse county, state of Californial, and to tliere 1971 make selection and location in the proper United States land office, on behalf of pok:11tiff, as lieu land, of the lands so applied for by plaintifi', and to make such selection and location in lieu of section 10. township 1: X., range 3 E., M. D). M. Pluintiit allege's in his complaint bis qualifications to purchase state school laud, sets out a copy of liis anplication, and also alleges that he tendered said application to the defendant with the proper fee for filing the same; that the land described in the application has been regularly surveyed and sectionized by the l'uited States, and the township plat, showing that said land had been so regularly surveyeil and sectionized, had been more than fire years on file in the proper United States land office; that said section 16, township 42 X.. range 3 E., for which the lands ipplied for are desired to be taken as lieu lands, is unsurveyed public land of the Unitel States.

It is stipulated that the following are the facts on which this controversy hinges, to wit: "That the question, and only question, intended by the parties to be presented by this record, is whether the lands or any of the lands described in the letter dated De cember 12, 1904, hereinafter specifically set forth, are located within a reservation, within the meaning of the act of Congress which 'is known as section 2275 of the Revised Statutes (U. S. Comp. St. 1901, p. 1381).

* * That on the 12th day of December, 1904, James Wilson, the then Secretary of Agriculture, wrote that certain letter which is and was in words and figures as follows, to wit: 'Department of Agriculture, Office of the Secretary, Washington, D. C., Dec. 12, 1904. The Honorable the Secretary of the Interior-Sir: A field examination of the following described lands in the vicinity of Mt. Hoffman in the state of California has recently been made by the Bureau of Forestry, and the region as a whole has been found to be well adapted to forest reserve purposes. The best of the timber lands are rapidly passing into private ownership through lieu selertions and timber and stone entries, and, in order that title to the remaining public lands may rest with the government until further action is decided upon, I have the honor to recommend that all the vacant unappropriated public lands in the following described townships and parts thereof be temporarily withdrawn from settlement at the earliest practicable date: * * * T. 12 N., R. 3 E., the entire township,

all numbered from the Mt. Diablo base and meridian. Very respectfully, Your obedient servant, Jiunes Wilco!. Secretary. It is further admitted that on the 13th day of December,

1904, E. A. Hitchcock, the then Secretary of reserved or pledged for the use of schools or the Interior, indorsed on said letter that cer colleges in the state or territory in which they tain indorsement which is and was in words lie, other lands of equal acreage are hereby and figures as follows, to wit: ‘J. S. P. appropriated and granted, and may be select1. M. Dept. of the Interior, Dec. 13, '04. ed by said state or territory in lieu of such Respectfully referred to Com. Gen. Land. as may be thus taken by pre-emption or homeThe public lands in the prescribed areas are stead settlers. And other lanıls of equal acrehereby temporarily withdrawn from disposi age are also hereby appropriated and grantci, tion under the public land laws, and the and may be selected by said state or tcrrit'omr. is directed to instruct the local offices tory where sections 16 or 36 are mineral in the premises, immediately, by wire, and lands, or are included irithin any Indian, milreport action, with return of letter. E. A. itary or other reserration, or are otheruise Ilitchcock, Secretary. It is further admitted disposed of by the Initcıl States." (The ital. that on the 13th day of December, 1904, W. ics are ours.) The question is as to whether A. Richards, the then Commissioner of the or not the said section 16. township 42 N., General Land Office, wrote that certain letter range 3 E., has been included within a reswhich is and was in words and figures as ervation within the meaning of the italicized follows, to wit: 'Department of the Interior, clause of the above section. The said section United States Land Office, Washington, D. 16 has not been included in any Indian or C., Dec. 13, 1904. Register and Receiver, military reservation, but it has been kept Redding, California-Gentlemen: On Decem back or reserved "pending determination as ber 13, 1904, the Secretary of the Interior to the advisability of including the same withtemporarily withdrew all the public lands in in a forest reservation." the below described areas from settlement, The words "other reservations" are evientry, sale, or other disposal, except under the dently used in a broad sense in the statute. mineral laws, pending determination as to The word "reservation" is defined in the the advisability of including the same with Standard Dictionary as "that which is rein a forest reservation. The lands so with served, kept back, withheld." The said sixdrawn are as follows: *

Township teenth section, to which the state would be 42 X., range 3 E., M. D. M. Note this with otherwise entitled. has been by the proper drawal upon the records of your oflice. Very authorities of the United States—the Lane respectfully, W. A. Richards, Commissioner.' Department-kept back, withheld, and reserv* * * It is further stipulated and agreed ed. It has been reserved with a view to inthat said letters and indorsements thereon cluding it in a permanent forest reserve. are still in full force and effect, and that the The state is not now entitled to it, because same have never been altered, withdrawn, the United States bas seen fit to reserve it or modified. It is further stipulated and for its own uses. It is no answer to this to agreed that at all times mentioned in the com say that the reservation may not be made plaint and petition of plaintiff the Commis permanent, and that the state may yet be ensioner of the General Land Office bad adopt titled to the land. That might be said as to ed, and the Secretary of the Interior had ap any other kind or reservation for military proved, and that there were in full force and purposes, for Indians, or any other purpose. effect, certain regulations governing selections A reservation is a reservation, no matter what of indeninity school lands; that, among may be the purpose, nor for how long a time others, said regulations contained the follow the reservation may continue. The statute ing provisions and regulations: The cause does not fix a time during which it shall conof the loss in each case must be specifically tinue, and we are not at liberty to do so. stated. If caused by an entry based upon a In our opinion the question as to time refers settlement claim initiated prior to survey. only to the time when the state desires to take the number of the entry must be given. If the land. Can the state take the section in occasioned by a reservation of the land, en place now? Evidently not, because it has titling the states to indemnity, the date, been reserved and withheld from sale. This name, and purpose of the reservation must be view is made clear by the concluding portion stated. If the loss occurs by reason of the of the section, which is as follows: "Providfractional character of the land. it must be ed, however, that nothing herein contained set forth.'”

shall prevent any state or territory from It is said in the points and authorities that awaiting the extinguishment of any such milthe entire case depends and turns upon the itary, Indian or other reservation, and the proper construction of section 2275 of the restoration of the lands therein embraced to Revised Statutes. Said section, so far as ma- the public domain, and then taking the secterial here, is as follows: "Where settlements tions 16 and 36 in place therein; but nothing with a view to pre-emption or homestead in this proviso shall be construed as conferhave been or shall hereafter be made before ring any right not now existing." The abovethe survey of the land in the field, which are quoted proviso gives the state the right to found to have been made on sections 16 or await the extinguishment of any reservation 36, those sections shall be subject to the which includes a sixteenth or thirty-sixth claims of such settlers, and if such sections section, and then to take the section in place; or either of them be or shall be granted, but that is a matter solely for the state. It

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