No. 2,614.

#### SEBASTIAN HODAPP, Respondent, *v.*GEORGE SHARP, *et al.,*Appellants.

State Lands — Act op Oongbess op July 23, 1866. — Certeetcate op Pub-chase — Prima pacte Evidence op Purchase in Good Eaith. — In an action to recover possession by tlie locator of a land -warrant, the certificate of purchase from the State is *prima facie*evidence that the locator is a irurchaser in good faith, and the burden of proof is on the defendant to show that the land is within the exceptions contained in section one, of the Act of Congress of July 23, 1866, to quiet land titles in California.

Idem. — Erbob in the Selection op Lands. — An error in the selection of lands in lieu of those lands which are in fact *in place,*or in the selection of unsurveyed lands, is the error of the State officials; and, in the absence of any evidence that the purchaser was cognizant of such error, it will not deprive him of the position of a purchaser in good faith within the meaning of the Act of Congress.

Idem. — when Title Passes to the State. — The selection of land on behalf of the State is not confirmed, nor does the title pass until the land is certified over to the State by the Commissioner of the General Land Office, as required by the second section of the Act of July 23, 1866.

Idem. — When Purchases may maintain Action por Possession. — A purchaser from the State, whose selection falls within the second section of the Act, cannot maintain an action for the possession of the land before it is certified over to the State, unless the defendant has intruded upon his actual possession.

Idem. — Date op Ceetipicate op Commissioned op Genebal Land Oppioe.— Where the evidence shows that the land selected had been certified over to the State by the Commissioner of the General Land Office, though the date of the certificate is not given, if no objection was made to the evi. dence it will be presumed that it was done prior to the commencement of the action.

*70PBACTICE — DAMAGES -WHEN JUDGMENT IS AjTIBMED IN PABT AND ReVEBSED IN paet. — In an action for the restitution of two separate tracts of land, where the judgment of the Court below was for plaintiff for both tracts and for damages, and the order of this Court affirms the judgment as to one tract and reverses it as to the other, if the record furnish no data for the apportionment of the damages, the entire judgment will be reversed unless all damages be remitted.

Appeal from tbe District Court of tbe Seventh District, Solano County.

Action to recover possession of two quarter sections of land, situated in Solano County, to wit: tbe northwest quarter of section 10, and tbe southwest quarter of section 10, township 4 north, range 2 east; and for damages for the use and occupation of the same, and costs of suit.

Plaintiff introduced in evidence a certificate of purchase from the State of California to W. P. Holcomb, of the southwest quarter of section. 10, bearing date December 31st,-1861, with the assignment of the same by Holcomb to plaintiff indorsed thereon. Also another certificate of purchase from the State of California to G. B. Saulsbury for three hundred and twenty acres of land including the northwest quarter of section 10, bearing date December 31st, 1861, with a deed from Saulsbury to Holcomb conveying said quarter section, and a deed from Holcomb conveying the-same to plaintiff.

Judgment was for plaintiff for restitution of the land in controversy and for damages in the sum of two hundred and forty dollars and costs. Defendants moved for a new trial, which was denied and this appeal is taken from the judgment, and from the order denying defendants’ motion for a new trial.

The other facts are stated in the opinion.

*Wm.*Ewing, for Appellants.

*Pendegast & Stoney,*for Despondent.

Rhodes, C. J.,

delivered the opinion of the Court, Croce-ett, J., Temple, J., and Wallace, J. concurring-

*71In *Toland*v. *Mandell,*(38 Cal. 30), tbe Act of Congress of tbe 23d of July, 1866, to quiet land titles in California (14 U. S. Stats. 218) was presented for consideration, and tbe purpose and effect of several of its provisions were announced.

’ It was, among other things, held that tbe locator of a land warrant “must show that be is a purchaser in good faith under tbe statute. Of these facts, however, bis certificate of purchase is *prima fade*evidence, for it has been so declared by a statute of this State. It shows that the State has selected the land and sold it to a purchaser, and that he has made a payment thereon; that as against the State he has acquired an inchoate title — one which the State is bound to protect under her laws — thus satisfying, so far, the conditions of the first section of the Act of Congress. If the land falls within any one of the exceptions there stated, the defendants must prove it.” The defendants in this case claim that they have overthrown the prima *fade*effect of the certificate of purchase, by showing that the lands, in lieu of which the lands in controversy were selected, were *in place*at the date of the selection, and that the purchaser, therefore, was not a purchaser in good faith. The proof is that those lands were *in place*at the date of the Surveyor-General’s certificate — September 17th, 1869 — but there is no evidence that they were *in place*in 1861, the date of the location.

But if it will be presumed that those lands were *in place*in 1861, because they were *in place*in 1869, still that fact will not show that the purchaser is not a purchaser in good faith, within the meaning of the Act of Congress. The defendants assert that as many as seven different selections have been made, in lieu of one and the same parcel of a sixteenth or thirty-sixth section. It was because of blunders of that hind, that legislation of the character of the Act of July 23d, 1866, became necessary. Had the lands in lieu of which the selections were made, not been *in place*— that is to say, had they been within a reservation, a private grant, or the libe, and had the selection been made according to the mode prescribed, and from surveyed lands, *72no Act of Congress, providing the means by wbicbtbe selection might be ratified and confirmed would have been necessary, for the selection would have been valid. The error in tbe selection of lands, in lieu of those which are, in fact, *in place,*or in the selection of unsurveyed lands, is the error of the State officials; and whatever the rule might be, when it is shown that the purchaser was cognizant of such error, it is clear that in the absence of such evidence he will not be deprived, by means of such error, of the position of a purchaser in good faith, within the meaning of the Act of Congress. Were the rule otherwise, it would be difficult, if not impossible, to find a selection which was intended to be confirmed by that Act. The proviso to the first section, that the State “shall not receive under this Act a greater quantity of land for improvement or school purposes than she is entitled to by law,” adds force to this construction. The proviso, so far as it relates to the sixteenth and thirty-sixth sections, would be senseless if it were not the purpose of the Act to confirm selections of lands, taken in lieu of lands which were *in place*at the date of the selection.

The northwest quarter of section 10, township 4 north, range 2 east — a part of the premises in controversy — was certified over to the State by the Commissioner of the Land Office. The date of the certificate is not given, but as no objection was taken to the evidence, and as the ground is not taken that the land was not certified over to the State before the commencement of the action, it will be presumed that it was done before that time. This made the purchaser’s certificate of purchase valid and effectual, and entitled him to a recovery as to that quarter section of land, the defendants having entered after the passage of the Act of Congress.

There is no evidence in the record that the southwest quarter of the same section — the remainder of the premises in controversy — had been certified over to the State. The second section provides that the proper officer of the State shall notify the Register of the proper Land Office (if the *73same bas not already been done since tbe land was surveyed,) of tbe selection of tbe land on bebalf of tbe State; and it is made tbe duty of tbe commissioner of tbe General Land Office to examine sucb selection, and if found to be in accordance witb Section One, to certify tbe land over to tbe State. Tbe selection, notwithstanding tbe words of tbe first section, is not confirmed, and title does not pass to tbe State until tbe land is certified over to tbe State; and as tbe purchaser, whose selection falls within tbe second section, acquires no right in tbe land except sucb as be acquires under tbe State, be cannot maintain an action for tbe possession of tbe land before it is certified over to tbe State, unless tbe defendant intruded upon bis actual possession. In *Toland*v. *Mandell, supra,*tbe plaintiff was in possession when tbe defendant entered upon tbe land, and it was held that tbe provisions of Section 3 legalized tbe possession of locators upon unsurveyed land, until they should have an opportunity to present their claims for confirmation, as provided in tbe Act. Tbe Act contains no sucb provision in respect to locations made upon land that bad been surveyed at tbe passage of tbe Act; and if it contained sucb a provision, its effect would be merely to legalize sucb possession as tbe locator tben beld, but would not extend tbe right, until tbe selection should be approved and tbe land certified to tbe State by tbe Commissioner. There is no evidence in tbe case, that tbe defendants intruded upon tbe possession of tbe plaintiff ( if any be bad) of tbe southwest quarter of tbe section, and as to that land, tbe plaintiff is not entitled to a recovery.

Tbe record does not furnish the data for tbe apportionment in respect to tbe two quarter sections of land, of tbe damages recovered for tbe use of occupation of tbe premises. Tbe judgment must be reversed unless sucb damages shall be remitted.

Judgment reversed and cause remanded for a new trial, unless tbe plaintiff shall, within twenty days after tbe filing hereof, remit tbe damages recovered herein.

And it is further ordered, that upon tbe plaintiff’s remit*74ting such damages witbin tbe time aforesaid, tbe judgment for tbe recovery of tbe possession of tbe northwest quarter of section 10, township 4 north, range 2 east, be affirmed; and that tbe judgment for tbe recovery of tbe possession of the southwest quarter of tbe same section, township and range, be reversed, and cause remanded for a new trial, as to tbe last mentioned tract of land-.

Sprague, j., expressed no opinion.