O'Connor v. Frasher

Sharpstein, J.:

The plaintiff sues in ejectment for the recovery of the possession of the land described in the complaint. The conclusion at which we have arrived renders it unnecessary to consider anything beyond the uncontroverted facts found by the Court below. The land which the plaintiff seeks to recover was sold and patented on the 21st day of April, 1974, by the State of California, to one Robert Thompson, from whom the plaintiff deraigns his title through the mesne conveyance of one W, S. Rosecrans, whose conveyance to plaintiff is dated April 12th, 1875. The land was listed to the State as lieu land, and the list certified by both the commissioner of the general land office and the Secretary of the Interior. By the former, on the 29th day of May, 1872, and by the latter, on the 81st of May, 1872. The defendant entered upon the land on the 8th day of Junc, 1876, and tendered his filing thereon in the United States land office, with all legal fees, claiming the land as a pre-emptor, and on the 18th day of December, 1876, tendered his final proof and payment to the officers of the United States land office, which was refused, and an appeal was taken from the action of the officers of the local office to the commissioner of the general land office, and the same is now pending. At some time in the year 1879, the defendant applied to the proper officers of this State to purchase said land from the State, and said application is now pending and undetermined.

From which it appears, that the defendant’s right to controvert the plaintiff’s title is based solely upon the ground of a naked entry by the defendant upon the land more than two years after the State had sold and patented it to the plaintiff’s grantor, and more than four years after the land had been listed by the United States to this State. Now, conceding that the facts al *501 leged by the defendant are all true, and that the land was improperly listed to the State, and that the State improperly convoyed it to the plaintiff’s grantor, and that the acts of all the officers who certified said list, and issued the patent of said land, should be revoked by the proper departments of the State and Federal Governments, the fact still remains that the plaintiff has a patent which is regular upon its face, and the proceedings resulting in it were the usual proceedings in such cases, and regular in form. The questions, whether the land was or was not public land within the meaning of the Acts of Congress granting lands to the State of California as school lands or school indemnity lands, or whether the survey thereof was with or without authority of law, were questions which it was the duty of the land officers to determine, and if they made a mistake in judgment, their action was erroneous, and not a mere nullity. (Dodqe v. Perez, 2 Sawy. 615.)

If the authority to issue the patent depends upon the existence of particular facts in reference to the condition or location of the property, or to the performance of certain antecedent acts, and officers have been appointed for the ascertainment of these matters in advance, who have passed upon them and given their judgment, then tlm patent, though the judgment of the officers be in fact erroneous, cannot be attacked collaterally by parties showing title subsequently from the same source, much less by those who show no color of title in themselves. In such cases, the parties without title cannot be heard at all, and the parties with subsequent title must seek their remedy by scire facias, or bill or information to revoke the first patent or limit its operation. (Doll v. Meador, 16 Cal. 325; Ah, Yew v. Choate, 24 id. 566; Frisbie v. Whitney, 9 Wall. 187; Hutchings v. Low, 15 id. 77.)

But it is unnecessary to cite authorities upon this point. When this case was here before ( O'Connor v. Frasher, 53 Cal. 435), the late Court said: “Treating the whole pleadings (of the defendant) as a cross-complaint, the demurrer should have been sustained ” ; and cited Thomas v. Lawlor, 53 Cal. 405, in which the doctrine of Doll v. Meador, supra, is clearly recognized and followed.

The judgment and orders denying a new trial are reversed, *502 and the Court below is directed to enter judgment for plaintiff against the defendants Frasher, Brush, Dotson, Somes, and McClain.

Thornton, J., McKee, J., and McKinstry, J., concurred.