Megerle v. Ashe

By the Court, Rhodes, J.:

Since the decision of this case, reported in 27 ' Cal. 322, there lm been a new trial in the District Court, again resulting in favor of the plaintiff. At the new trial, the plaintiff, after introducing in evidence a patent for the land in controversy, dated September 1st, 1863, executed by the United States to him, in pursuance of a location of a soldier’s bounty land warrant, offered certain evidence to show that he was entitled to a right of pre-emption in the premises under the provisions of section six of the Act of Congress of March 3d, 1853, and. which had been perfected by the proper proceedings before the officers of the Land Department—the object being to extend his title back by relation to the time *82 of the inception of his pre-emption claim. It appears from that evidence that on the 16th of April, 1856, the plaintiff filed his declaratory statement with the Register at Marysville—the Marysville District then comprising the land in controversy. It further appears that the township including the lands was surveyed in the field in May and June, 1855 ; that the plat of the survey was approved by the Surveyor General October 19th, 1855, and was returned to, received and filed in the Register’s Office at Marysville; but as to when the said map was actually filed in the Lane Office at Marysville there was no proof offered by either parly, except the map itself and indorsement thereon, which defendant read in evidence. ¡Neither party could show as against the other, title from the United States, unless it was made to appe'ar that the plat was returned to the proper Laud Office. The indorsement referred to is as follows: “ Filed ¡December 5, 1855, Marysville Land Office,” without being atsested by the signature of any officer. The map itself, aside from the indorsement, furnishes no proof as to the time when it was returned to the Land Office at Marysville. By the statement on motion for new trial and appeal, it appears that tie above indorsement furnishes the only proof of the time when the plat was returned to the Land Office. The plaintiff made no offer to prove the fact mentioned by the Secretary of the Interior in passing upon the plaintiff’s pre-emption claim, that in February, 1856, the Register and Receiver published a notice to settlers requiring them to file their declaratory statements on or before the 15th of May, 1856, which fact tended strongly, in the absence of positive evidence, to show that the plat was returned at the date of the notice. The recital found in the opinion of the Secretary of the Interior, is not evidence of the fact or time of the publication of the notice; but even if evidence upon that point had been produced, it would be of no avail to the plaintiff, as the statement restricts the proof to the unsigned indorsement .on the plat. The indorsement, though tending in but aV-slight degree to prove the time of the return of the plat, must be taken on this appeal as fixing the time. The 5th day of *83 December, 1(355, must therefore be taken as the time when the plat was I returned to the Land Office at Marysville; and therefore tile declaratory statement of the plaintiff, filed on the 16th day of April, 1856, was too late. The Act of Congress of March 3d, 1853, for the survey of the public lands in California, etc., (10 U. S. Stats. at Large, p. 246,) provides, in the sixth section, that the declaratory statement must be filed “ within three months after the return of the plats to the Land Office.” The Courts have no authority to dispense with this requirement, and the decision of the Secretary of the Interior, introduced in evidence in this ease, does not tend to the conclusion that the officers of the Land Department possessed such power.

The plaintiff cannot invoke the decision of the Secretary of the Interior, determining that the pre-emption claim was valid, as an estoppel as to Terry as well as the Dnited States and the plaintiff, and this for several reasons. Terry was not a contesting pre-emption claimant, but claimed under the eighth section of the Act of Congress of September 4th, 1841, granting to each State five hundred thousand acres of land for purposes of internal improvements, and under the laws of this State providing for the selection of such lands; and no authority is given to the Secretary of the Interior or any of the officers of the Land Department of the General Government to determine the regularity or sufficiency of locations made under those Acts, in selecting the land granted to the States—the Act of Congress providing that the selections in all the said States shall be made within their limits, respectively, “in such manner as the Legislature thereof shall direct.” Admitting that such decisions are binding upon contesting claimants of the right of pre-emption, they are without force as against third persons. At the trial, the plaintiff stated that he intended to prove that the plaintiff was “ entitled to a pre-emption claim upon said premises,” and that in a contest between the plaintiff and Terry, the officers of the Land Department determined that the plaintiff had, in fact, such pre-emption right, and he proved certain of the facts, upon which the alleged right of pre-emption *84 accrued to the claimant. A party cannot rely raon a judicial determination of an issue hy way of an estoppel, and also upon proof of the facts upon which the determination is based. The necessary effect of the estoppel is toipreclude all inquiry as to the truth of the matter determined, and when a party who is entitled to set up the estoppel does open the inquiry into the truth of the matter, he cannot complain that the other party pursues it without regard to the estoppel.

The objection of the defendant, that evidence going to show that the plaintiff had acquired a right of pre-emption, and that the patent was issued in confirmation of such right, was inadmissible, because it tended to contradict the patent, which showed on its face that it was issued upon the location of a soldier’s bounty land warrant, cannot be sustained. The Act of Congress of March 22d, 1852, (10 U. S. Stats, at Large, p. 3,) provides that land warrants may be used by a person entitled to a pre-emption right to any land in payment for the same. There is no statute that we are aware of providing that the patent shall recite that it is executed for lands to which the patentee held a right of pre-emption, nor, when the lands have been located under a soldier’s bounty land warrant, that the patent shall recite that fact. We are therefore unable to see how the recital of either of those facts in the patent would exclude the proof of the other, or tend to show that it was not true. The one is not inconsistent with the other, and if either or both are wanting from the patent, the proof of either or both, neither adds to, varies nor contradicts the patent.

Leaving out of view the decisions of the Commissioner of the G-eneral Land Office, and of the Secretary of the Interior, the proof was not sufficient to show that the plaintiff had a right of pre-emption to the premises. He testified in his own behalf as a witness, but he failed to state several facts that -must be shown, in order to make it appear that he was entitled to a pre-emption right—as his age, or that he was the head of a family; that he was a citizen or had filed his declaration to become a citizen; that he was not the owner of three hundred and twenty acres of land, etc. • The condi *85 tion and state of facts under which the right to a pre-emption accrues, must be proven by competent evidence, and in the same manner as other facts are required to be proved in a cause. The fact that the claim was made or approved, may and should be proved by official certificates, record entries or other appropriate documentary evidence; but the facts upon which the claim rests, cannot be shown as against a person claiming title through another and a different course of procedure, by the recitals in official documents to which he bears no relation. The Court instructed the jury, at the request of the plaintiff, that,, the plaintiff had shown such a compliance with the laws of the United States and the regulations of the Land Department as entitled him to a pre-emption claim to the premises. In this we think the Court was in error. The term “ compliance ” we understand as meaning in that connection, not only the performance of the requisite acts by the claimant, but also that he possessed the necessary qualifications as to age, citizenship, etc., prescribed by the Act of Congress granting rights of pre-emption. -The instruction was doubtless given under the idea that the decision of the Secretary of the Interior, together with the other official documents, showed both qualification and performance on the part of the plaintiff, and that they were conclusive on that matter; but, as we have already stated, they were not admissible as evidence of those matters as against third persons. The facts going to show performance were for the jury, and when found, it was the province df the Court to declare their effect. If the jury should find that the plaintiff possessed the statutory qualifications, and filed his declaratory statement within three months after the return of the plat to the Land Office, and thereafter performed the acts required on Ms part by the regulations of the General Land Office, they should be instructed that he was entitled to a pre-emption claim to the premises, which, when completed by a patent from the General Government, vested him with the legal title, and that the title took effect by relation at the time of the first act performed by him to acquire the right of pre-emption. But the question of performance of the requi *86 site acts, including qualifications, was a question of fact for the jury.

Judgment reversed and the cause remanded tor a new trial.