The record-union., 1891-01-17

Respondent,
McNAMAra ssi EFT AL, Appellants. NO. is'00S'
Ejectment. Judgment for plaintiff Motion
for a new trial by defendants denied, and APP
peal fromth judgment and the order denying
the motion.
The plaintiff claims title to the land in con-
troyersy under apatent of the United States,
issued to Willard Hodges, dated December 3,
1882, which was put in evidence rs was also
a conveyance of the tract by Hodges to the
plaintiff. The claim of Hodges is under the
seventh section of the Act of Congress of July
%, 1886, entitled San Act to quiet land titles
in California;" "a Stats. at large, p. 220.)
This section provides that when persons in
good faith and for a valuable consideration
have purchased land of Mexican grantees or
assignees, which grants bave subsequently
been rejected, or when the lands SO purchased
have been excluded from the final survey of
any Mexican grant, and have used, improved,
and continued in the actual possession of the
same. according to the lines of their original
purchase, and when no valid adverse right or
title except of the United States) exists, such
purchasers may purchase the same after hav
ing such lands surveyed under existing laws,
at the minimum price established by law,
upon first making proof of the facts as re-
quired herein, under regulations to he pre-
scribed by the Commissioner of the General
Land Ofliee. Hodges and Upham made proof
before the proper land Office OF their right TO
purchase the land in suit under the section OF
the Act of 1866 above referred to, bringing
themselves within its provisions, and were
allowed to purchase, and did purchase, on
United States above mentioned under which
the plaintiff asserts title. This patent estab-
fishes priJid f1cie the right of the plaintiff to
recover, and must be regarded as conclusive
against the defendants, unless the latter can
attack it and successfully impeach its sufii-
cheney to vest title in those claiming under il.
Defendants claim that the rights possessed
by them entitle them to attack the patent.
They say, that as a matter of fact, the land
sued for was on the 2Sth day Of September,
1860, swamp and cverfiowed land, and by
rft of Act of N pf dafn
titled "An Act to enaL 'e the State OF Arilan-
sas and other States to reclaim the swamp
lands within their limits the title to this
tract passed from the United States to the
State OF California, and that it waS out of the
power OF Congress, or of the United States
Government, in any way or mode, to divest
this title SO passed to the state by the Act of
1850.
1t must be regarded as settled beyond con-
troversy that the first section of the Swamp
Land Act iAct of September 2S. 1850 is Il
grant IN prdeseati to each State of the swamp
and overfiowed lands within its limits. The
Supreme Court of the United States, speaking
through Justice Field, have said of this Act
in Wright VS.. RosebeTry, 121 U. 5. Il. 4S6:
''The words Of the first section OF the Act
shall be and are hereby. granted import an
immediate transfer of interest, not q promise
of transfer in the future.'
This construction of the Act has been sus-
tanned in several cases. (See Tubbs VS.. VIII
holt, 73 Cal. G3, and cases there cited, and
cases cited in Wright VS.. Roscberry, supra.
| The contention of the defendants is that
| they can impeach the patent OF plaintiff by
| showing that the land in suit was on the day
| of the passage of the Swamp Land Act OF
1850, in fact swamp and oVerfiOwed lands.
| To this contention plaintiff replies that de-
| fendants are estopped from making such
proof by an authoritative decision of a COM
petent tribunal to the contrary, binding on
! both plaintiff and defendants.
| When the defendants offered to defeat the
| effect of the patent to prove that the land was
| swamp and overlooked on the 2Sth day OF
/ September, 1850, the plaintiff met it with
Lroof of what he claimed to be an authori-
| tatiye decision and adjudication to the con.
| trary, as above stated, and with the objection
| that by reason of such decision such evidence
was Incompetent and improper
| The material facts pertaining to this adjudi
cation are as follows: In 1877 a contest arose
ard was carried on in the United States Land
| Office in Marysville, in the contested case ol
| Wizard Hodges and George b. Upham in re-
| gard to tract No. 12, township 1 . north, range
| 3 east to which John Mcnamara (oae of the
4 defendants in this casel. and the state OF Cali
fornia, were parties. Tract 12 includes the
| land in suit in this case. Hodges and Uphanl
| claimed the whole of this tract IL.
| This contest involved the right to portion
| of this tract / 2 as between Hodges and Upham
| and John Mcnamara, and to q portion of the
| same tract as between Hodges and Upham and
| the State of California. There were other par
ties to the contest, but as their claims are not
| IN any way involved in this action, they need
not be further referred to. Citations were
issued and served on all the parties: McNamara
| appeared by counsel and with his witnesses
! The State of California did not appear, nor die
| any one appear for it. The Register and Re
eeiver awarded the land IN contest On suit
! here) between the claimants Hodges and
| Upham and the state of California, to the
| former To John Mcnamara portion o.
tract 12 was awarded as as;inst Hodges =, and l
Mcnamara is not included in the land sued
| for in this action.
and the State of California, does not seem to
| have be IN carried by appeal to the Commits
sioner OF the General Land Office at Washing
ton The. decision of the Register and Re
| ceiver remains unchallenged by the State o1
! California, or any one claiming under her.
| IN a contest with another claimant, as tC
lots 22 and 2 Involved herein), these lots were
| on appeal awarded by the Secretary OF the IN
| terror to Hodges and Upham.
In awarding the lands IL suit here to Hodges
and Upham, the Register and Receiver held
| that their right to purchase the lands was
! superior to that of Lie State. As the ruling
| was not appealed from, 1t would usually h(
regarded Us concluding the state and estop
| ping her from any claim TO the land IN con
But did the Register and Receiver hold that
| the land was not swamp and overflowed?
aCOntestant. State OF California. does not ap
pear to contest the claim of Hodges and Up
ham, and no direct testimony was called GU
as TO the alleged swamp and overtioweC
character of the laid in dispute between theS'
parties. The evidence, however, shows tha
all of said tract Ne. IL has for many year.
been used for ordinary purposes OF agrieultur'
in growing grain and grass for hay and past
flrage And the fact of its adaptability fol
the cultivation of these staple agricultural
products would seem to determine the ques
| lion as to the character of the land as agains
the State At any rate, these circumstances
coupled with the fact that prior to the Act o
| IuIy %, 1866, and to the states disposal o
the lano to purchasers in good faith th
claimants became purchasers in good faith o
the grant title to the same should in on
ildpment conclude the State in the premises.
It is undou atedly held in the opinion of tn
Register and Receiver that Hodges and Up
ham were entitled to the land involved in tn
contest with the SAG shaer a tne seVentn s sec
| regards the land in srit, the decision is bind
| ing on the State in so Tar as the Register ant
Receiver have decided on the ris1, OF Hodge
and Upham (see Hosmer VS.. Wallace, 8
| u. S. r.. $50, and also binalng, III our Juds
ment, on defendants, the McNamaras., II
these contests before the oiiicers OF the i-an'
! Department as to the right to enter land, tn
parties to whom it could be awarded on th
contest are the proper and necessary parties
| In the CONTEXT we are considering Detweei
| Hodges and Upham and the STATE o
| California land could be awarded only to on
of these parties. II would not and could not b
awarded to grantee OF the state, as III TINS cas-
| to McNamara. The United States authoritie
| in such contests only notice the rlgnts OF par
ties who have a right under the laws of tn.
| United States toenter and purchase Inc lano
| Any person claiming under the State mus
prosecute or defend his rights under the Stat
| as n party to the contest. Mcnamara claim
inc under the State in this case must have de
Tended his right Under the State as n claimant
| and il was incumbent on him to do so. There
| fore it follows that whatever was binding OF
! the S!ate, bound Mcnamara. II. as the resul
| of the contest between Willard Hodges ant
| the State it had been adjudged that the lant
| was not swamp and overiiowed, that woult
have bound the State within the rule laie
| down in johnson VS.. Towsley, 13Nnl. ~
| approved and followed in Hosmer VS.. W. allace
| 47C,al. AL lSee, also. Samson VS.. Smiley
| 3 Wall 81: Warren vs.. Van Brunt, 10 "a
/ 653; Shepley VS.. Cowan, 81: u. IS. H. $50
| Nyoore VIC RfsbbinS qe Id $50: HoSmer VS.
/ Wallace. 81 Ia. $50; Marques VS.. Frisbie, 101
I'd. 473.) The determination Of the facts IL
| the same contest adjudging the right o
j l.ir, il,s