Sullivan v. Shanklin , 1883 Cal. LEXIS 423 ( 1883 )


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  • Ross, J.,

    concurring specially.—I agree that the petitioner in this case is not entitled to the writ sought. His purpose, as evidenced by the record, is to recover back from the State the money paid by him for certain land for Avhich the State issued to him its patent, he claiming that the State had no title to convey. But it also appears that petitioner has availed himself of the benefits of the Act of Congress of March 1, 1877, entitled “ an act relating to indemnity school, selections in California.” By that act it is provided that when land has been selected and sold by the State, but to which the State has no title, and such land is held by an innocent purchaser for a valuable consideration, such person shall be allowed to prove such facts before the proper land officer, and shall be permitted to purchase the land at one dollar and twenty-five cents per acre, not to exceed three hundred and twenty acres for any one person. Pursuant to the provisions of this act the petitioner made application to purchase the land from the United States, and according to his petition has made proof to the satisfaction of the register and receiver that he is the owner and holder of the State patent to the land, and that he is an innocent purchaser from the State for a valuable consideration. In order, therefore, to acquire the land from the general government at a special rate, and as a pre*252ferred purchaser, he represented, to that government that he had already paid the State for it. For that purpose he relied upon the fact that the State had his money, and having thus secured the title, he now seeks by means of mandamus to recover back the very money on the faith and strength of which he secured the advantage. To my mind this does not appear just, and mandamus ought not to be awarded to enforce an inequitable demand. (Wood on Mandamus, p. 17, and authorities there cited.) So far as the equities of the case are concerned, the petitioner would be in an altogether different position could he say here, in effect: The State purported to sell me a piece of land, for which it received my money and gave me its patent. The State had no title, and I got nothing by the pretended sale and conveyance, and am therefore entitled to a return of my money. But this, as shown above, is by no means petitioner’s position.

    Morrison, C. J., and Myrick, J., concurred in the opinion of Mr. Justice Eoss.

    McIIinstry, J., Sharpptein, J., and Thornton, J., dissented.

    Garber, Thornton & Bishop, of counsel for petitioner, applied for a rehearing, which was denied.

Document Info

Citation Numbers: 63 Cal. 247, 1883 Cal. LEXIS 423

Judges: McKee, Ross

Filed Date: 3/16/1883

Precedential Status: Precedential

Modified Date: 11/2/2024