Rosecrans v. Douglass

A patent may be attacked collaterally when the State has no title in the land patented. (Patterson v. Winn, 11 Wheat. 352; Stoddard v. Chambers, 2 How. 284; Durfee v. Plaisted, 38 Cal. 80.) No lieu land can be located in place of land included within [215] the limits of a Mexican grant until the survey of the grant becomes final. A pre-emptor who has made his application is in such privity with the source of title as to enable him to attack a patent which is void. (Frisbie v. Whiting, 9 Wall. 187.) John D. Bicknell and Haight & Taylor, for the Respondent. The land having been listed to the State, the fee-simple passed. (Act of Congress of August 3rd, 1854; Lester’s Land Laws, vol. 1, p. 236; Bugnall v. Broderick, 13 Peters, 436.) The purchaser from the State is not bound to look back of the listment. The patent cannot be impeached collaterally. (Hodopp v. Sharp, 40 Cal. 69.) The defendant is not in such privity with the title as to enable him to impeach the patent. (Rhodes v. Craig, 21 Cal. 422; People v. Stratton, 25 Cal. 243.) By the Court : The plaintiff claims under a patent issued to him by the State for the land in controversy, which in the year 1868 was selected by the State, in lieu of a thirty-sixth section alleged to have been lost to the State by reason of its having been included in the final survey of the Rancho Santa Margarita y Las Flores, a confirmed Mexican grant. But the Court finds that at the date of the State selection that rancho had not been, and has not yet been finally surveyed, and consequently that the said thirty-sixth section was not then, and has not yet been, lost to the State. It is clear that as between the State and the United States, the patent is void, notwithstanding the land was listed over to the State by the Commissioner of the General Land Office before the patent issued. The Act of Congress of August 3rd, 1854, (1 Lester’s Land Laws, p. 136) provides that when lands are granted to the several States by any law of Congress, and when said law does not convey the fee of the lands, or require patents to be issued therefor, the lands granted shall be listed to the State by the Commissioner of the General Land [216] Office, and such lists “ shall be regarded as conveying the fee-simple of all the lands embraced in such lists that are of the character contemplated by such Act of Congress, and intended to be granted thereby; but where lands embraced in such lists are not of the character embraced by such Acts of Congress, and are not intended to be granted thereby, said lists, so far as these lands are concerned, shall be perfectly null and void, and no right, title, claim, or interest shall be conveyed thereby.’* The listing was therefore null and void unless the land was “ intended to be granted ”.to the State by some law of Congress. But there is no law of Congress granting lands to this State in lieu of a sixteenth or thirty-sixth section, except in the cases wherein these sections have been lost to the State by reason of a prior settlement upon them, or because they have been reserved for public uses, or taken by private claims, as provided by the seventh section of the Act of Congress of March 3rd,, 1853. (1 Lester’s Land Laws, p. 207.) The plaintiff’s patent, therefore, acquires no additional validity from the fact that the lands were listed to the State; and there can be no doubt that as between the State and Federal Government, the State selection was void, as having been made without authority of law, and being void, the State had no title which it could convey to the plaintiff. It is contended, however, on behalf of the plaintiff, that the patent is not void on its face, and that the defendant has no such privity with the title of the United States as will enable him to-attack the patent in an action at law. The defendant is a qualified pre-emptioner, living on the land, who has duly filed his application to purchase, has offered to prove up his claim, and has tendered the purchase-money. His application is yet pending and undecided; and we think these facts establish such a privity with the paramount source of title as enabled the defendant to attack the patent in an action at law. (Kile v. Tubbs, 23 Cal. 431, and authorities there cited; Terry v. Magerle, 24 Cal. 609; Robinson v. Forrest, 29 Cal. 317.) Judgment reversed and cause remanded for a new trial.