Bernhard v. Wall

The appeal is from the judgment.

The objects of the action, as expressed in the prayer of the complaint, were to obtain a decree declaring void certain state land patents issued to Bobert M. Bankin and Thomas J. Dunlap, respectively, or, in case the patents should be held legal, to declare that defendant holds title to the lands, described therein in trust for the plaintiff and that he be compelled to convey said lands to plaintiff, and for general relief. The findings are within the issues and the principal, if not the only, points urged in support of the appeal are that the findings do not support the judgment. The facts will be stated as we proceed with the argument.

The land in controversy is the south half, the northwest quarter, and the south half of the northeast quarter of section 36, township 34 north, range 9 east, Mt. Diablo meridian, situated in Lassen County. Said section is one of the school sections granted to the state by the United States. On May 11, 1903, Peter D. Bernhard, the plaintiff, offered to the surveyor-general an application and affidavit, in due form, to purchase said land and also offered to pay the fee and make the deposit required by law on the filing of such an application. The surveyor-general refused to receive or file said application and affidavit or accept the money tendered, claiming that the land was subject to certain taxes assessed against it while it was held under a previous purchase from the state, after the purchase and before said purchaser’s right became extinguished by foreclosure, and that Bernhard was required to pay the taxes, penalties, interest, and costs so assessed, as a condition of making his entry. Bernhard on the same day began an action in the superior court of Sacramento County against the surveyor-general for a writ of mandate to compel him officially to accept said fee and receive and file said application and affidavit as of the date of May 11, 1903. An alternative writ of mandate was issued in said action on May 14, 1903, and was duly served on the surveyor-general on May 15, 1903.

Notwithstanding this offer to purchase and the pendency of the action and service of the writ upon him, the surveyor-general, on May 27, 1903, accepted from Dunlap an appliea

Upon the facts above stated, considered apart from the other findings of the court, it is clear that the plaintiff was entitled to the relief asked. Section 1 of the act of 1889 (Stats. 1889, p. 434) provides that applications to the surveyor-general to purchase school lands must be accompanied by a deposit of $20, and that the surveyor-general should give the applicant a receipt therefor, and that the receipt should be accepted by the county treasurer as part payment of the purchase price. Section 9 provided: “Any number of filings on any section of land is hereby permitted and allowed under the provisions of this act. Should the first filing be abandoned by the applicant, the next filing on such section, in order, shall have the same right as if it had been the first filing.”

[1] Section 3499 of the Political Code then provided that “if two or more claim the same land,” the contest must be determined as provided in section 3414. That section provides that when “a question of law is involved,” the contest

[3] It follows that the right of the plaintiff, under his patent, would relate back to the time when he made his application and offered the necessary deposit to make the same good, and that as this was prior to the applications of the other patentees, the plaintiff’s patent would prevail.

In the court below the defendant contested the priority of the plaintiff’s patent upon substantially the same grounds that were presented by the surveyor-general in opposition to the writ of mandate in the mandamus proceeding. The court below held that the judgment in the mandamus case was not binding on the defendant as an adjudication of his right or title, and on the defense set up it made findings in favor of the defendant. We proceed to consider the points arising from these findings.

In 1873, one George Foster obtained a certificate of purchase from the state for the south half of the section, upon a partial payment of the price. On January 24, 1881, his right to purchase was forfeited by the filing of a certified copy of a foreclosure decree against him in the surveyor-general’s office, and the land thereupon again became subject to entry and sale. (Pol. Code, secs. 3458-3554; Directors v. Avila, 106 Cal. 355 , [ 39 Pac. 794 ].) In 1886, Lawrence J. Parkinson obtained from the surveyor-general a certificate of purchase for the whole of section 36, and made a partial payment thereon. He afterward transferred his right thereunder to Boggs & Champlain. The deferred payments to the state were not made and, on June 20, 1896, a foreclosure

[4] The court below was in error in holding that the record in the Parkinson foreclosure did not show jurisdiction. Its decision on that point was based on the fact that in a copy of the summons attached to the proof of publication included in the judgment-roll the description of the land described the section as “Sec. 16,” instead of section 36. No other form of proof of service was on file, nor was the original summons among the papers. The decree itself, however, contained the following recital: “In this action the defendant Lawrence J. Parkinson having been regularly served with process; as required by law, and having failed to appear and answer the complaint of the plaintiff herein, and the legal time for answering having expired, and the default of said defendant, Lawrence J. Parkinson having been duly entered according to law. ’ ’ It further recited that the case was legally brought on for hearing and duly submitted to the court and that the court heard “the proof necessary to enable it to render judgment herein.” The defect in failing to correctly state the number of the section in the description of the land was not fatal to the jurisdiction. Where there is a recital of service, such as that contained in the present decree, the fact that there appears among the papers what purports to be a copy of the summons which incorrectly describes the land is not sufficient to overcome the recital in the decree. “It will be presumed that other proof than that contained in

[5] The conclusion of the court that it was necessary for a purchaser, in order to make a legal application to purchase these lands, to pay the taxes assessed against the land while it was under the Parkinson purchase is also erroneous. This conclusion was founded upon the provisions of section 3788 of the Political Code that, when land purchased from the state, and not fully paid for, has been sold to the state for delinquent taxes assessed thereon against the purchaser or his successor in interest, and a tax deed has been issued to the state upon such sale and has been filed with the surveyor-general, the land “shall again become subject to entry and sale” in the same manner as before, except that the applicant must, as a condition to purchasing, pay into the state treasury, in addition to the price fixed for such lands, a sum equal to the delinquent taxes, penalties, costs, and accruing costs, by virtue whereof the state became a purchaser of the land at the tax sale and also the taxes subsequently accrued on the land prior to the date of the application. These provisions necessarily imply a valid sale to the state upon the tax assessment. They have no application where a deed has been made which is void on its face. [6] In the present case both the deed executed upon the Poster assessment and

[7] Section 3787, which makes the tax deed “conclusive evidence of the regularity of all other proceedings, ’ ’ from the assessment down to the deed, does not apply to or cure this defect. Sections 3786 and 3787 must be read and construed together. The phrase “all other proceedings,” in section 3787, refers back to section 3786, and, therefore, includes only such proceedings as are not included in section 3786. The presumption as to the proceeding which fixes the time for the sale is prescribed by section 3786. It declares that the tax deed is “primary,” meaning prima facie, evidence of the fact that the property was sold “at a proper time.” (Subd. 5.) The statement in Warden v. Broome, 9 Cal. App. 175 , [ 98 Pac. 252 ] to the effect that this matter was covered by section 3787 is inaccurate, and this was evidently overlooked or considered unimportant by this court in denying a rehearing in that case. The “proper time” here referred to is the time designated in the published notice, as provided in section 3767. That time is to be fixed by the tax collector when he prepares the notice and publishes it with the delinquent list. (Sees. 3764, 3765.) The tax deeds here in question were, therefore, only prima facie evidence that the tax sales on which they were founded were made “at a proper time.” This prima facie proof was completely refuted by recitals in the deeds to the effect above stated, showing that the sales were not made at “a proper time,” but were made at a time when any lawful proper time had expired. Each tax deed was, therefore, void on its face. [8] It is proper here to explain that the phrase “such deed,” with which both sections 3786 and 3787 begin, must, in the present condition of the code, be understood to refer both to the deed authorized by section 3785 and to that authorized by section 3785b.

The result is that the surveyor-general was not authorized to demand payment of any taxes by the plaintiff as a condition of accepting and approving plaintiff’s application to purchase the land in controversy and that he should have accepted and approved the same upon plaintiff’s tender of the necessary amount of money.

[9] The validity of the foreclosure decree against Parkinson and the validity of the tax deed filed in the surveyor-general’s office based on the assessment to Boggs & Champlain were questions directly put in issue in the mandamus proceeding of Bernhard against the surveyor-general. That judgment was an adjudication that the Parkinson foreclosure was valid and that the tax deed was invalid. It was conclusive, not only of the matters actually alleged in opposition to the writ, but also of any fact which might have been alleged and proven in that proceeding to show that Bernhard was not entitled to the relief given by the judgment. (Crew v. Pratt, 119 Cal. 149 , [ 51 Pac. 38 ].) It follows, therefore, that if the tax deed on the Poster assessment would have been a defense to the mandamus proceeding, it would have been the surveyor-general’s duty to plead it therein, and, failing to do so, he. would be forever estopped to claim that it was a defense. [10] Unquestionably that judgment was a final adjudication of the right of Bernhard binding on the surveyor-general in his official capacity. He is the state official in charge of all matters pertaining to the disposal of the public lands of the state. He is ex-officio register of the state land office. (Pol. Code, sec. 497). His duties in relation to public lands are prescribed in sections 3395 to 3573, inclusive, of the Political Code. In any proceeding against him to compel him to per

But, although the attorney-general and the state were both precluded from claiming any right or title to the land adversely to Bernhard’s title under his patent, or from disposing of the land contrary to the decision in the mandamus proceeding, the defendant, Wall, claims that he occupies a different position in regard to the matter. The surveyor-general made no entry or memorandum whatever in the records of his office concerning the making of the application by Bernhard or the service of the alternative writ of mandate against him or the pendency of those proceedings. The records and files of his office disclosed nothing relating thereto. After Dunlap and Rankin obtained their patents in 1904, their titles by mesne conveyances became vested in one Burgess. The land never was occupied. Wall desired to purchase the land and with that in view he had the records of Lassen County searched to ascertain the condition of the title. Bernhard had not caused any notice of the action to be filed in the recorder’s office of that county, as provided in section 409 of the Code of Civil Procedure. Wall found nothing in the records to show any interest, right, or title of Bernhard in or to the land, but ascertained that the record showed that the title was vested in Burgess under state patents, and

[12] The rule is well settled that where land is unoccupied and a person holds title thereto by a contract or deed which is not recorded, and a third person, in ignorance thereof, in good faith and for value, buys the land from the apparent record owner thereof, he takes the title free from the prior, but undisclosed and unrecorded title of the other party. (Civ. Code, see. 1214.) [13] The plaintiff claims that this rule does not prevail where the party claiming to be an innocent purchaser holds under a deed or patent which is absolutely void. The proposition cannot be denied. It applies as well to private conveyances as to patents issued for public lands of the state or of the United States, If the land in question never was public property, or if it had previously been disposed of or withdrawn from sale or disposition, or if the law had not made any provision for the sale thereof, or had reserved it from sale temporarily at the time the initia-i tory steps for its acquisition.were taken and the proceeding initiated had not been subsequently' ratified or authorized, a patent issued to a claimant would be absolutely void, at least as against a prior valid claim, although regularly obtained in form as provided by law. (Lake Superior etc. Co. v. Cun ningham., 155 U. S. 354 , [ 39 L. Ed. 183 , 15 Sup. Ct. Rep. 103 , see, also, Rose’s U. S. Notes]; Parker v. Duff, 47 Cal. 554 ; McGarrahan v. New Idria etc. Co., 49 Cal. 335 .)

[14] The plaintiff claims that the land was withdrawn from sale the moment Bernhard made his application to purchase accompanied with the legal tender of the fees and the required deposit of money. The argument is that this application, although not accepted or approved, was the first initiitory step in his proceeding to obtain the state patent, that it has been diligently followed up to patent, and that under the decisions of this court and of the United States supreme

The same reasoning applies to the cases wherein the initiatory step which created the prior equity was the filing of some paper in the public land office, or the making of some entry in the books thereof, showing the claim of such first claimant and constituting a part of the public record and files of the office. Such writings would impart notice to a subsequent claimant and would prevent him from occupying the position of an innocent purchaser. The following cases, cited by the plaintiff, are of this class: Smith v. Athern, supra; People v. Carrick, 51 Cal. 325 ; Stoddard v. Chambers, 43 U. S. (2 How.) 284, [ 11 L. Ed. 269 , see, also, Rose’s U. S. Notes];

The only other ease cited by plaintiff on this point is Boyles v. Kelly, 10 Serg. & R. (Pa.) 217. The facts in that case occurred before, during, and immediately after the war of the Revolution and it concerned land subject to sale under the laws of Pennsylvania, to which we have not access. It appears from the opinion, however, that the prior settler whose successors finally prevailed had, in regular form, made application to the public land officers to buy the land, and that the only defect in his proceeding was the failure of the public surveyor to return the survey he had made for that settler. As to that, the court held that such misconduct of the officer could not prejudice the claimant, who was in no default, that the survey must “be considered as if it had been actually returned, ’ ’ and that the person who bought bona fide from a subsequent claimant who had secured a patent “was bound to take notice of the survey at his peril,” and for that reason did not stand in the position of an innocent purchaser for value. The case is somewhat similar to the class of cases last mentioned. At all events, the first claimant was in actual privity with the state as a purchaser, and was shown to be so by the record, at the time the second claim was initiated.

In all cases where a prior equity has prevailed over a patent issued upon a subsequent claim, it appeared that the first applicant had done some act which had the effect, under the law, of bringing him into privity with the state as a purchaser of the land. He had been recognized, both by the law and the officers who were administering it, as an eligible purchaser. In the case of a pre-emption claimant, his settlement and residence on the land and the improvement thereof, with intent to purchase, were sufficient to bring him into privity with the United States as a purchaser. In the ease of land which could be purchased without a previous entry thereon, the making of a proper application by one qualified under the law to purchase it, accompanied with the payment of the legal

The terms of the statute do not sustain the claim that the mere rejected offer of Bernhard operated to withdraw the land from sale to other applicants, or to put him in privity with the state. It is the making of a filing which establishes the status of the applicant and gives him preference over subsequent filings, unless his filing is abandoned. It is, therefore, clearly apparent that so far as third persons are concerned, who acted without knowledge of his offer and paid money for the land on the faith of the record title, the plaintiff has no prior equity. He paid nothing for the land until long after the defendant purchased it. The delay of nearly seven years in bringing to judgment the action in mandamus indicates that he used little diligence in prosecuting the same. There was ample time before the Dunlap and Rankin applications' were approved for him to have had them brought in as defendants to the action, and thus have concluded them by that judgment. Plaintiff’s ease does not present as strong an appeal to the principles of equity as that of the defendant.

[15] The plaintiff claims, however, that the surveyor-general, as a public officer in charge of the land department of the state, represented the state in the mandamus proceeding and all persons thereafter coming in privity with it, and

[18] No notice of the pendency of the action in mandamus as provided in the code was filed either in Sacramento County or in Lassen County, where the land lies. It is at least doubtful if section 409 of the Code of Civil Procedure applies to such actions. If it does, the terms of that section, in effect, declare that if there is a failure to. comply with it there can be no constructive notice 6f the pendency of the action. If that section does not apply to such action it then comes within the rule stated in MacDermot v. Hayes, 175 Cal. 108 , [ 170 Pac. 616 ], and other decisions there referred to, to the effect that section 409 is exclusive, and that an action of any other character than is there provided for does not constitute constructive notice of its pendency.

[17] Finally, the plaintiff claims that the defendant cannot assert his title as an innocent purchaser for value without notice, unless he avers and proves that, at the time of the execution of the deed from Burgess to him, Burgess was in possession of the land. He supports this claim by the following quotation from Eversdon v. Mayhew, 65 Cal. 167 , [ 3 Pac. 644 ] : “To entitle a party to protection as such a purchaser he must aver and prove the possession of his grantor, the purchase of the premises, the payment of the purchase money in good faith, and without notice, actual or constructive, prior to and down to the time of its payment, for if he had notice, actual or constructive, at any moment of time before the payment of the money, he is not a bona fide purchaser.” This passage is a part of the argument to support the proposition that one claiming as an innocent purchaser must show that he took without notice of the adverse claim. The question of possession was not involved. Several later decisions of this court are cited, each of which either paraphrases or quotes the passage in Eversdon v. Mayhew. All of them, however, were directed to the subject of notice and the question of possession was not involved. The rule there stated is substantially that enunciated by the supreme court of the United States in Boone v. Chiles, 35 U. S. (10 Pet.) 210, [ 9 L. Ed. 388 , see, also, Bose’s U. S. Notes]. That case related to transactions which took place near the beginning of the last century. The law applying to such transactions of that period was the common law of England and the rule

The judgment is affirmed.

Olney, J., Wilbur, J., Lennon, J., Sloane, J., Lawlor, J., and Angellotti, C. J., concurred.