Sacramento Savings Bank v. Hynes

By the Court, Rhodes, J.: The defendant ought to have objected to the filing of the supplemental complaint, by which it was attempted to set up title acquired after the commencement of the action; for it is a rule in the action of ejectment, of such universal recognition, that the plaintiff can recover only on such title as he held at the commencement of the action, that we forbear to state any reason or cite an authority in its support. The admission in evidence of the patent issued to the plaint [201] iff’s grantor, after the commencement of the action, was erroneous; but the error was rendered immaterial by the introduction in evidence of the certificate of purchase issued to the plaintiff's grantor, and the finding of that fact by the court; for the certificate was sufficient to make out a prima facie case for the plaintiff. It was not found or proven that the land in controversy was swamp and overflowed land; but it is claimed by the defendant that the evidence offered by him would, if admitted, have shown that the title vested in the State by virtue of the act of Congress of July 23, 1866 (14 U. S. Stat. at Large, 218); and it is also insisted, that the evidence showed a valid selection of the lands, in accordance with the provisions of the act of Congress of March 12, 1860. (12 U. S. Stat. at Large, 3.) As to the latter act, it is sufficient to say that it relates only to lands which were, in fact, swamp and overflowed, and therefore it is inapplicable to the lands in controversy. It is provided by the fourth section of the act of July 23, 1866, that “the commissioner shall direct the United States Surveyor-General for the State of California to examine the segregation maps and surveys of the swamp and overflowed lands made by said State, and when he shall find them to conform to the system of surveys adopted by the United States, he shall construct and approve township plats accordingly, and forward to the General Land Office for approval. The act does not expressly declare that the lands thus selected by the State shall, after the performance of the several official acts therein mentioned, be certified over to the State, as swamp and overflowed land; but as we construe the act, that must be held to be its intent. The defendant had the right to prove, if he could do so, that the State had made “segregation maps and surveys,” which designated this land as swamp and overflowed land, and that all the official acts had been performed by the United States which were necessary to be done, in order to vest the title to the land in this State. He proved, as we understand by the bill of exceptions, that the land had been segregated by the State as swamp and overflowed land in 1861, [202] but the evidence which he offered in connection therewith did not tend to prove any other fact which was requisite in order that the title should pass to the State, under the operation of the act of July 23, 1866, and therefore its exclusion was not error. The demurrer to the equitable defense was properly sustained. One point only will be considered. The defendant cannot maintain the position that he is entitled, in equity, to the legal title which was acquired by the plaintiff, unless he, the defendant, complied with the provisions of the preemption law applicable to his ease, or was prevented from so doing by some act, by means of which the plaintiff acquired an undue advantage in the proceeding. Among others is the provision that the claimant must prove to the satisfaction of the register and receiver, the facts upon which his claim rests. The allegation of the equitable defense that when the defendant appeared before those officers to prove his right of pre-emption, he was not permitted to make such proof, because of the “wrongful and fraudulent acts of the plaintiff,” is not the allegation of any fact which caused or induced those officers to refuse to hear his proofs. The allegation is too vague to be considered as the allegation of a fact. It is also alleged that the plaintiff made false and fraudulent representations “to the register and receiver at Marysville ■ and other land offices of the United States at Washington,” respecting his settlement upon and occupation and improvement of the lands, and procured certain persons to testify before the register and receiver that such false and fraudulent representations were true. It may be assumed that these are the acts alluded to as the “wrongful and fraudulent acts of the plaintiff,” but they did not and could not have the effect to prevent the register and receiver from hearing the defendant’s evidence in support of his claim. If the plaintiff supported his claim by false testimony the defendant was not thereby precluded from introducing testimony to contradict it, and to prove the truth of his own declaratory statement. If the register and receiver refused to hear the defend [203] ant’s evidence in support of his claim, because the plaintiff had produced evidence, whether true or false, in support of his own claim, or on any other insufficient or captious ground, the defendant had an effectual remedy by application to the Commissioner of the General Land Office, or by some other appropriate proceeding, to compel them to proceed and take the defendant’s evidence, and pass upon the question of his right of pre-emption. Judgment and order affirmed.