Dunn v. Ketchum

Sawyer, C. J., delivered the opinion of the Court:

On the 10th of March, 1868, respondent, Ketchum, applied to the County Surveyor of Tulare County for the purchase of the tract of land in question, under ‘ ‘An Act to provide for the sale of certain lands belonging to the State, ” approved April 27, 1863 (Stats. 1863, 591). He at the same time subscribed and filed with the County Surveyor the affidavit required by the third, and the oath required by the twenty-eighth sections of said Act, but no certificate of the oath required by the latter section or description of the land had been filed in the office of the County Recorder of said County of Tulare at the time of the commencement of this proceeding, The County Surveyor transmitted duplicate copies of the field notes of the survey of the land, and of the said affidavit and oath, to the Surveyor General, and they were filed in his office on the 11th of April, 1868.

Some two months after Ketchum’s application, to wit, on the 12th of May, 1868, appellant, Dunn, subscribed the oath prescribed by Section 28 of said Act, and filed in the office of the County Recorder of said county the certificate of the oath, indorsed upon a description of the land. He also made and subscribed the affidavit required by Section 3 of the Act, filed the same in the office of the County Surveyor, and made in due form a similar application to purchase the same land. Whereupon the County Surveyor also transmitted the proper papers to the Surveyor General, and they were filed in his office on the 25th of May, 1868. Upon demand of Ketchum, the contest for the purchase between the parties was referred by the Surveyor General, under the statute, to the District Court of the Thirteenth Judicial District, which determined the contest in favor of Ketchum. Dunn appeals.

No rights or equities of any kind are shown in favor of either party, except such as arise under the said statute, from the acts already stated. Ketchum took the first step in the proceedings to purchase, but he did not do all that was required by the statute, while Dunn commenced two months later, and did do everything prescribed. The question is, Did any right whatever attach under the statute in favor of Ketchum by the acts thus performed by him, before a right attached in favor of Dunn, in consequence of the acts performed by him? Section 28 provides that: “No location of land made under the provisions of this Act, or any proceedings in accordance therewith, shall be construed to give any title to, interest in, or right of possession or occupation of any of the public lands in this State, unless the person for whose benefit the location is made, or the proceedings taken, shall have first taken and subscribed the following oath or affirmation,” etc. And Section 29, that: “ The certificate of the oath or affirmation prescribed in the preceding section shall be indorsed on a description of the land over which ownership or control is sought to be acquired, setting forth when the land has been surveyed by the General Government; the section and subdivision of the section, town and range in which such land is situated; and the said description, with the certificate of the oath or affirmation indorsed as prescribed by this section, shall be filed in the office of the Recorder of the county in which the land described is situated; and the right of the person making the oath or affirmation shall not be deemed to attach to such land by virtue of any proceedings under this Act, until the moment of the filing of the description and certificate of the oath or affirmation in the office of the County Recorder; and no certificate of purchase or patent shall be issued to any person for lands located under this Act until a certified copy of said description and oath or affirmation has been filed in the office of the State Register.” (Stats. 1863, 600.)

It seems clear to us, that, under this provision, no right whatever, inchoate or otherwise, attaches under the statute till the certificate of the oath prescribed by the twenty-eighth section, indorsed on a description of the land, is filed in the office of the County Recorder. Such appears to be the express provision. It is, that “the right of the person making the oath or affirmation shall not be deemed to attach to such land by virtue of any proceeding under this Act, until the moment of the filing of the description and certificate of the oath or affirmation in the office of the County Recorder. ” The Act itself, then, fixes the moment when the right attaches by virtue of proceedings under the Act, and says it shall not attach before that moment. It was undoubtedly competent for the Legislature to determine the acts necessary to be performed before any right should be deemed to attach, and for the purpose of obviating any uncertainty on this point it was highly proper to do so. There is no right whatever shown in this case, unless 'one arises from the proceedings had under the Act, and no other is claimed. Ketchum had not performed an Act which the statute expressly makes an essential prerequisite to the attaching of any right under its provisions at the time when all the prescribed acts had been fully performed by Dunn, The lands were open to the purchase of all upon the same terms. As no right had attached in favor of Ketchum under the statute or otherwise, we do not perceive how there could be anything to prevent a right from attaching in favor of Dunn, upon a complete performance by him of all the acts prescribed. The lands were certainly open for purchase under the statute, until a right of some sort should attach in favor of some party; otherwise all lands, by acts giving no rights to the party performing them, might be withdrawn from the operation of the statute, and the policy of the law, and the sale of the State lands, be defeated. In this case Dunn first performed all the acts required by the statute, as a condition precedent to the attaching of any right under its provisions, and we think he is entitled to make the purchase rather than Ketchum.

It is claimed that Sections 28 and 29 are inoperative, because no officer is designated to administer and certify the oath. When an affidavit is required to be made, or an oath administered and certified, and the statute does not designate the particular officer before whom the act may be performed, it may be done before any officer having general authority under the public statutes of the State to administer and certify oaths. In other provisions of this very Act, as in the third section, it is expressly provided that the affidavit may be made before “ any person competent to administer oaths.” Of course, the officer administering the oath is the proper one to certify it.

We think the District Court erred in determining the contest in favor of Ketchum.

Judgment and order reversed, and the District Court directed to enter judgment in favor of the appellant, Dunn.