McCoy v. Byrd

Ross, J. It is well settled that an applicant seeking to purchase land from the State must set out in his affidavit the facts required by the statute to be stated therein. (Botsford v. Howell, 52 Cal. 158; Hildebrand v. Stewart, 41 Cal. 387; Woods v. Sawtelle, 46 Cal. 389.) The statute under which the plaintiff’s application is made (Pol. Code, § 3443) requires the affiant to state, among other things, that he knows the land applied for and the exterior bounds thereof, and knows, of his own knowledge, that there are no settlers thereon; or, if there are, that the land has been segregated more than six months by authority of the United States. From the affidavit of the plaintiff it does not appear whether there are or are not settlers on the land which he seeks to purchase. The courts cannot hold immaterial, matters which the statute declares must be stated. Judgment affirmed. McKinstry, J., and McKee, J., concurred.