Daily Los Angeles herald., 1881-03-29
INTERESTING LEGAL DECISION.

Il Opinion BY Judge volnsy 3. Howard.
IN THE SUPERIOR COURT, ETC.
. Los Angeles County Bank
]. G. HOrgan ct al.
(ConcIuded.)
Il In this case there 10 somc con.
troversy ~ to whether notice was
given, but there does not appear to
be any conflict to the testi mony ol
: H. T. Hazard, who had up to near
the time, been the counsel of bis
brother Charles. He testified that
he had q controversy with his
brother about some money claimed
by him, which he had advanced
to Charles to enable him to make
the entry and improvements; that
he was his counsel at the time OF
the Issue Of the patent certificate;
that prior to the time of the re.
hearing he notified Charles that he
was no longer his attorney, and
that he would make an effort to
defeat his entry, and that shortly
after he acquired by deed from
Hughes, the owner of the State
selection, an interest in the same; /;
that prior TO the hearing he noti-
He'd Mr.. James, the Register, that
he was no longer the attorney of
Charles, that he gave the same no.
tice to the attorney Of Hughes. He
testified that his brother was not
| hnnn hv q nv unkso> fn l,s.x, Nf.
James depOses that he gave notice
to Il. t. Hazard only. Charles
testified that he had no notice and
did not know the proceedings un.
til after the decision.
1t is not necessary to decide that
there was actual fraud In the pro.
ceedinge. II there was no notice to
Charles Hazard the officers of the
Land Department acquired no ju-
rlsdlction Of the proceedings to va.
cate his entry, and their decision
cancelling it was void. This proved
that after the decision of the Com.
missioner and the Secretary OF the
Interior cancelling the patent Ger.
tihcates the attorney Of Hughes
had q conversation with Charles
Hszard In which he acknowl lodged
that he had lost the land by these
decisions, said he did not wish to
be sued and would move Off the
land, being allowed to remove his
improvements, and that he did &C.
tually vacate 1t, taking off his i'm
provements. F
Had the abandonment been re.
duced to writing, = Court of Equity
would not hesitate to vacate an
agreement made under the circum.
stances, and the misapprehe ension
as to the effsct Of these decisions.
But as Hazard held under q paper
title vesting the right, he could not
under the statute of frauds be
bound by any mere verbal rehun.
citation. Davenpart vs. Turpin,
43 Cal. 602, 16 J. r. 1l9; Ferres vs..
Corvsr, 10 Cal. $50.
It Is urged that as the land in
controversy was claimed under a
Mexican grant, Chas. Hazard
could institute no valid pre-emp.
tion rights.
1t appears from the decision of
the u. 8. Land office, Nov. 1873,
that the land in controversy was
released from reservation as shown
BY the letter Of the Commissione
Of that date, that the township
plat was filed in the Lsnd Of{ice at
Los Angeles Nov. 21, 1871, by au-
thority Of the Secretary Of the In.
| terror. See. 22s0 of u. g. r. 8. de.
clares, "Any settler on lands here.
tof0re reserved ON account of
claims under French, Spanish, or
other grants which have been or
may be declared by the Supreme
Court Of the U. g. to be invalid,
shall be entitled to all the rights of
pre-emption granted by the pre-
ceding provisions of this chapter,
after the lands have been released
from reservation, in the same man
ner 40 II no reservation had exist.
ed" This Is also the language of
the the act Of 1858, but as this
grant was not rejected by the Su-
prsme Court Of the United States,
the only application of the act is to
show the tendency of the law.
The Secretary Of the Interior hav.
Ing decided virtually, Nov. 1873,
that the land in controversy was
not within the exterior limits Of
the Sausal Redondo It never was
reserved. A claim of land not EN-.
bodied within the boundary of o
grant cannot have the effect to re.
serve 1t, otherwise q Mexican
claimant might reserve the whole
State.
AS the claim Of the Mexican
grant had been settled before Chas.
Hazard died his d. 8. and proved
up. there was no reservation a. to
the land In controversy. Ryan vs..
r. R., 90 U. 8. Reps, 3s7. I have
been referred to the second decision
Of O'Connor We. Frazer, but I do
not see that 1t has any application
to the case at bar, and to the eqult-
able defenses set up In ii. 1t could
not have been the intention of the
Court to overrule the late case OF
Rosecrans vs.. Douglas, which de.
cIares that "38 section of public
land 10 not lost to the State, SO that
lieu can be located therefor from
the fact that it is included Within
the limits of confirmed Mexican
lgrant, until there has been q final
survey," aud the cases to the same
effect. In the case at bar 1t Is
proved and admitted that there
has been neither final confirmation
nor final survey Of the Mexican
grant. It could not have been the
Intention Of the Court to ovsrrule
the late decision of the Supreme
Court Of the United States
In Sherman vs. Buick, 3 Alto
in which the Court declares: ut
has always been held that an ab.
soluts want Of power to issue q
patent could bs shown in court oil
law to defeat q title set up under 1t,
though when 1t is merely voidable
the party may be compelled to re.
sort to a Court Of Equity to have it