
    [L. A. No. 4988.
    In Bank.
    September 22, 1920.]
    BENJAMIN F. HUNTINGTON, Appellant, v. JOSEPH G. DONOVAN, Respondent.
    
       Evidence—Overlapping Land Grants—Judicial Notice.—The supreme court will take judicial notice of the invalidity of the grant by the United States to the Southern Pacific Bailroad in 1871 as to 'lands which overlap the grant to the Atlantic & Pacific Bailway in 1866.
    
       Public Lands — Government Patent — Collateral Attack.— While it is the general rule that government patents cannot be collaterally attacked, a void patent can be so attacked.
    
       Id.—Cancellation op Void' Patents—Period op Limitation-Acts op Congress—Bights op Grantees ,op Portions op Patented Premises.—The five-year period provided by the acts of Congress of 1891 and 1896 for the bringing of actions to cancel railroad patents was not intended to protect grantees of small portions of the lands patented, where the patent was attacked in time and decreed invalid, unless such grantees were tona fide purchasers.
    
       Id.—Bona Pide Purchaser—Burden op Proop.—The grantee of a patentee claiming under a void railroad patent has the burden of showing that he is a tona fide purchaser/in order to obtain the benefits of the acts of Congress of 1891 and 1896, when attacked by the government or by a private party.
    
       Id.—Purchaser op Tax Title — Not B'ona Pide Purchaser.— A purchaser of a tax title cannot be considered a tona fide purchaser under the acts of Congress of 1891 and 1896 which protect tona fide purchasers of government lands claiming under void railroad patents, where at the time of such purchase the land office records showed a valid desert entry thereon, and the patent under which he claimed had been declared void and the decree was of record in the office of the clerk of the district court.
    
       Id.—Evidence—Becitals in Conveyances.—Beeitals of consideration in conveyances are not competent evidence against third persons not parties or privies thereto on the issue as to whether a grantee of a patentee under a void railroad patent is a tona fide purchaser.
    
       Deed — Subsequently Acquired Title — Bulb Inapplicable to Government Patent.—The rule declared in section 1106 of the Civil Code to the effect that where a grantor acquires title subsequent to his grant it passes to the grantee, does not apply to a government patent.
    
      APPEAL from a judgment of the Superior Court of Los Angeles County. Paul J. McCormick, Judge.
    Affirmed.
    The facts are stated in the opinion of the court.
    Andrews, Toland, Gregg & Andrews, Cedrie E. Johnson and F. E. Dunlap for Appellant.
    Frank C. Prescott and Prescott & Prescott for Respondent.
   WILBUR, J.

This is an action to quiet title to a quarter-section of land near Del Sur, Los Angeles County, within the overlapping United States land grant to the Atlantic & Pacific Railway, made by Congress in 1866 (14 U. S. Stats. 292) in aid of its proposed railroad from the Colorado River to the Pacific Ocean, and the grant made in 1871 (16 U. S. Stats. 573) to the Southern Pacific Railroad Company for its “branch line” from Tehachapi to Yuma via Los Angeles. The latter grant was void as to lands in the overlapping grants, and in 1886 the rights of the former reverted to the United States, and the land was restored to the public domain (24 U. S. Stats. 123; United States v. Southern Pacific R. R. Co., 146 U. S. 570, [36 L. Ed. 1091, 13 Sup. Ct. Rep. 152]; United States v. Colton Marble & Lime Co., 146 U. S. 615, [36 L. Ed. 1104, 13 Sup. Ct. Rep. 163]; Southern Pacific R. R. Co. v. United States, 183 U. S. 519, [46 L. Ed. 307, 22 Sup. Ct. Rep. 154]; United States v. Southern Pacific R. R. Co., 184 U. S. 49, [46 L. Ed. 425, 22 Sup. Ct. Rep. 285, see, also, Rose’s U. S. Notes].) Plaintiff claims under the grant to the Southern Pacific Railroad Company and the defendant under a desert land entry made in 1910. A patent was issued to this company on January 9, 1885, in pursuance of the grant of 1871, for 33,249 acres of land, including the land in controversy. On January 28, 1890, the company by a grant deed conveyed 1,280 acres, including the land in controversy, to Nathan Cole, Jr. The latter, by deed dated February 8, 1890, recorded March 13, 1890, conveyed the land in question to C. A. Sargent. On March 17, 1890, a suit was brought by the United States against the Southern Pacific Railroad Company, Nathan Cole and other grantees and mortgagees of that company, to cancel the patent of January 9, 1885, and other similar patents. This suit was twice appealed to the supreme court of the United States (Southern Pacific R. R. Co. v. United States, 168 U. S. 1, [42 L. Ed. 355, 18 Sup. Ct. Rep. 18]; United States v. Southern Pac. R. Co., 184 U. S. 49, [46 L. Ed. 425, 22 Sup. Ct. Rep. 285, see, also, Rose’s U. S. Notes]). The patents were canceled. Plaintiff - claims that he is not bound by this cancellation because C. A. Sargent, his predecessor, was not a party to the suit, although he was the record owner, and for the further reason that the final decree excluded the land in controversy. It is true that Sargent was not bound by the decree, or by the cancellation of the patent upon which his title depends, as by an adjudication, but plaintiff’s rights, so far as they are affected by the law therein declared, must be determined in accordance therewith. The supreme court of the United States in that ease determined the effect of certain acts of Congress, and we must give to them the same construction in this ease. That case turned, in part, upon the question as to whether the Atlantic & Pacific Railroad had made an effective location of its line of railroad, so as to vest in it the title of the lands along such line in such overlap. So far as this question of fact is concerned it is not open to litigation between the parties here, as we take judicial notice of the invalidity of this grant to the Southern Pacific Railroad Company. (Southern Pacific R. R. Co. v. Painter, 113 Cal. 247, [45 Pac. 320].) And where it appears that the land is within this overlapping grant we have held the patent to the company void. (Owen v. Pomona Land & Water Co., 6 Cal. Unrep. 438, [61 Pac. 472].) This court has frequently taken notice of the invalidity of these patents. (Southern Pac. R. R. Co. v. Wood, 124 Cal. 475, [57 Pac. 388]; Southern Pac. R. R. Co. v. Lipman, 148 Cal. 480, 491, [83 Pac. 445]; Wilson v. Southern Pac. R. R. Co., 150 Cal. 731, [89 Pac. 1089].) Plaintiff claims that as he holds under a United States patent to the Southern Pacific Railroad Company, that patent cannot be collaterally attacked. The general rule is that patents cannot be so attacked (United States v. Stone, 69 U. S. (2 Wall.) 525, [17 L. Ed. 765]; Michigan L. & L. Co. v. Rust, 168 U. S. 589, 593, [42 L. Ed. 591, 18 Sup. Ct. Rep. 208]), but a void patent can be so attacked (Marsh v. Nichols etc. Co., 128 U. S. 605, [32 L. Ed. 538, 9 Sup. Ct. Rep. 168]; Steel v. St. Louis etc. Co., 106 U. S. 447, [27 L. Ed. 226, 1 Sup. Ct. Rep. 389, see, also, Rose’s U. S. Notes], cited in Klauber v. Higgins, 117 Cal. 451, 465, [49 Pac. 466]). That this patent is void and subject to collateral attack is clear, for its invalidity-results- from the fact that the lands covered thereby had been previously granted by act of Congress to the Atlantic and Pacific Railroad, and the title thereto was in such railroad when the patent was issued (1885) to the Southern Pacific Railroad Company. (Marsh v. Nichols etc. Co., supra; Southern Pac. R. R. Co. v. United States, 168 U. S. 1, 41, [42 L. Ed. 355, 18 Sup. Ct. Rep. 18, see, also, Rose’s U. S. Notes].) Plaintiff also claims that even if the patent is invalid, Congress has declared by acts passed in 1891 (26 U. S. Stats. 1093, [U. S. Comp. Stats., sec. 4992]), and in 1896 (29 U. S. Stats. 42, [U. S. Comp. Stats., secs. 4901-4903]), that no suit can be brought to determine such invalidity after March 2, 1901 (five years after the act of March 2, 1896), and that the effect of this limitation is to validate the patent after that date. In this connection appellant calls attention to the decision of the supreme court of the United States in United States v. Chandler-Dunbar Water Power Co., 209 U. S. 447, [52 L. Ed. 881, 28 Sup. Ct. Rep. 579, see, also, Rose’s U. S. Notes], in which it was held that the failure of the United States to bring a suit to cancel a void patent results in confirming title in the patentee. The court said: “We can see no reason for doubting that the statute (26 Stats. 1093, c. 561, sec. 8), which is the voice of the United States, had that effect. It is said that the instrument was void and hence was no patent. But the statute presupposes an instrument that might be declared void. When it refers to ‘any patent heretofore issued,’ it describes the purport and source of the document, not its legal effect. If the act were confined to valid patents it would be almost or quite without use. Leffingwell v. Warren, 2 Black (U. S.), 599,” [17 L. Ed. 261, see, also, Rose’s U. S. Notes], In the case at bar, however, the patent relied upon by appellant was attacked by the government in 1890, and in that suit was decreed to be void and canceled. It is evident from the act itself that this five-year period for the bringing of actions to cancel patents was not intended to protect grantees of small portions of the lands patented, where the patent was attacked in time and decreed invalid. If such grantees are bona fide. purchasers they were protected by elaborate provisions of the act by which they could secure title from the government. No ease has been called to our attention, and we have discovered none, in which the federal-courts have been called upon to determine the effect of the five-year limitation upon the rights of a grantee of a portion of the patented premises where the patent itself has been canceled in an action between the government and the patentee, and the grantee is not made a party to the action in which the patent was canceled. In the case of United States v. Norris, 222 Fed. 14, 19, [137 C. C. A. 552], an action had bee'n commenced against the patentee to cancel the patent within the five-year period. After the expiration of that period the grantee of the patentee was made a party, and it was held that he was protected by the five-year limitation, and that not having been made a party until after the expiration of that period the suit as' to him must fail because begún too late. In that case, however, the patent had not been canceled at the time the grantee was made a party and the action failed because the grantee had taken the title to the entire tract. The supreme court of the United States has construed with strictness the five-year limitation upon the power of the government to bring suit to annul a patent. (United States v. New Orleans Pac. Ry. Co. et al., 248 U. S. 507, [63 L. Ed. 388, 39 Sup. Ct. Rep. 175].) The rule is thus stated in United States v. St. Paul M. & M. Ry. Co., 247 U. S. 310, 313, [62 L. Ed. 1130, 38 Sup. Ct. Rep. 525, 526]: “Laying aside other questions raised by the government, we have reached the conclusion that, having regard to the general principle which requires a strict construction to be given to legislation in derogation of the public right, and in view of the legislative history of this particular enactment, the proviso must be given the effect of a curative measure confined to lands theretofore patented, and not granting dispensation for frauds or .mistakes thereafter occurring. It will be observed that the proviso is not 'a mere statute of limitation, but an absolute bar of suits by the United. States; not merely of suits to vacate and annul patents, but of suits to recover either the land or the value thereof; not merely in favor of bona fide purchasers, but also of the immediate recipient of an unlawful certification or patent. The general principle of public policy applicable to all governments, that the public interest should not be prejudiced by the negligence or default of public officers, which underlies the rule of strict construction for statutes of limitation, applies with peculiar force to a statute of this character. (United States v. Knight, 14 Pet. (U. S.) 301, 315, [10 L. Ed. 465]; Gibson v. Chouteau, 13 Wall. 92, 99, [20 L. Ed. 534]; United States v. Thompson, 98 U. S. 486, 489, [25 L. Ed. 194]; Fink v. O’Neil, 106 U. S. 272, 281, [27 L. Ed. 196, 1 Sup. Ct. Rep. 325]; United States v. Nashville, Chattanooga & St. Louis Ry. Co., 118 U. S. 120, 125, [30 L. Ed. 81, 6 Sup. Ct. Rep. 1006, see, also, Rose’s U. S. Notes]); United States v. Whited & Wheless, 246 U. S. 552, [62 L. Ed. 879, 38 Sup. Ct. Rep. 367].)” The purpose of this remedial legislation fixing a limitation within which patents may be attacked and exempting a bona fide purchaser from the results of the invalidity of the patent is fully accomplished as to plaintiff if he is allowed in this action to prove that he is in fact a bona fide purchaser and thus show title. It remains to be determined whether he is protected as a bona fide purchaser under acts of Congress passed for that purpose. The law of March 2, 1896, confirmed the title of bona fide purchasers from the Railroad Company. (United States v. Southern Pacific R. R. Co., 117 Fed. 544, affirmed Southern Pac. R. Co. v. United States, 200 U. S. 341, [50 L. Ed. 507, 26 Sup. Ct. Rep. 296]; United States v. Winona etc. R. R., 165 U. S. 463, 477, [41 L. Ed. 789, 17 Sup. Ct. Rep. 368, see, also, Rose’s U. S. Notes].) Under the previous acts of 1887 and 1891, for the protection of a bona fide purchaser, it was necessary for the purchaser to take some affirmative action to secure a patent in order to fully protect himself (San Jose Land & Water Co. v. San Jose Ranch Co., 129 Cal. 673, [62 Pac. 269], affirmed 189 U. S. 177, [47 L. Ed. 765, 23 Sup. Ct. Rep. 487, see, also, Rose’s U. S. Notes]), but this was unnecessary under the act of March 2,1896, supra. Without some such affirmative action, however," it is necessary for the grantee of the patentee to show that he is a bona fide purchaser in order to claim the benefit of this remedial legislation. The burdén of proof of his good faith is on such purchaser when attacked by the government (Wright-Blodgett Co. v. United States, 236 U. S. 397, [59 L. Ed. 637, 35 Sup. Ct. Rep. 339]), or by a private party. (Great Northern Ry. Co. v. Hower, 236 U. S. 702, [59 L. Ed. 798, 35 Sup. Ct. Rep. 465, see, also, Rose’s U. S. Notes]; Code Civ. Proc., secs. 1869, 2061, subd. 5.)

Is the plaintiff shown to be a bona fide purchaser or grantee thereof? By mesne conveyances from C. A. Sargent title was in Susana and Isabel Schell from and after .1892. If they were bona fide purchasers their title was confirmed by Congress the first Monday in March, 1896 (March 2d). The land was assessed for state and county taxes for. the year 1896, which became a lien on the first Monday in March of that year. Previous thereto it had not been taxable. (People v. Shearer, 30 Cal. 645; San Jose Land & Water Co., v. San Jose Ranch Co., supra.) The land was sold to the state for these taxes (1897) and deeded to the state July 3, 1902; and sold by the state t.o C. W. Eastman February 21, 1912; and by the latter to the plaintiff July 31, 1912. The plaintiff on June 13, 1913, secured a decree quieting his title against Susana and Isabel Schell, in whom by mesne conveyances the title of the Railroad Company had vested and still remained subject to such tax deed. Defendants’ vendors made a desert land entry of the land at the United States land office at Los Angeles on June 2, 1910, and thereafter proof of annual work was filed. Margaret G. McCartney assigned her rights to the defendant November 8, 1913. He has made final proof. Plaintiff claims as a bona fide purchaser of the tax title. Although such title was purchased for a valuable consideration he cannot be considered a bona fide purchaser within the meaning of the act of 1896 for two reasons, first, at the time qf his purchase the United States land office records showed a valid desert land entry thereon; second, at that time the patent under which he claims had been declared null and void and the decree was of record in the office of the clerk of the United States district court of Los Angeles. Plaintiff visited the land and found no evidence of occupation, but this did not make him a bona fide purchaser. His rights, then, must depend upon the decree to quiet title, in which, in effect, he secured the title of the Schells, but not by a bona fide purchase. If they had title plaintiff should prevail in this ease. To establish this it was necessary for plaintiff to prove that they or their predecessors were purchasers in good faith. The only evidence on that subject is the recitals of consideration in the various conveyances and the fact that in the suit to invalidate the patent Nathan Cole, Jr., was held to be a bona fide purchaser as to certain other land in the grant to him. Recitals in these conveyances are not competent evidence against third persons not parties or privies thereto. (Simmons Creek Coal Co. v. Doran, 142 U. S. 417, 437, [35 L. Ed. 1063, 12 Sup. Ct. Rep. 239, see, also, Rose’s U. S. Notes]; Long v. Dollarhide, 24 Cal. 218; 4 Encyclopedia of Evidence, 188, sec. 12; 22 C. J. 859, sec. 1028.) The decree in favor of Nathan Cole, Jr., declaring him to be a bona fide purchaser of land other than that in his deed to Sargent, plaintiff's predecessor, has no tendency to prove he was such purchaser as to other land. Moreover, the validity of his title to the land involved here was expressly reserved by the decision. Plaintiff relies on certain sections of our code (Code Civ. Proc., secs. 1962, subd. 2; Civ. Code, secs. 1614, 1615; sec, also, Code Civ. Proc., sec. 1963, subd. 39), but these sections merely relate to the sufficiency of the consideration to sustain the deed. It follows that plaintiff failed in an essential particular to establish his title. Appellant also claims title because the United States, having acquired title to the lands by forfeiture in 1886, the title passed under its previous patent of 1885 to the Southern Pacific Railroad under the rule of our Civil Code, to the effect that where a grantor acquires title subsequent to his grant it passes to the grantee. (Civ. Code, sec. 1106.) This rule does not apply to a government patent. If so, all the decisions in the litigation between the United States and the Southern Pacific Railroad Company were erroneous.

The judgment is affirmed.

Lennon, J., Lawlor, J., and Angellotti, C. J., concurred.

OLNEY, J., Concurring.

I concur for the following reasons: The plaintiff and the defendants claim under conflicting rights from the United States. The plaintiff’s chain of title runs back to a patent by the government to the Southern Pacific Railroad Company. That patent was void, but by the act of Congress of March 2, 1896 (29 U. S. Stats. 42), the title of any bona fide purchaser for valhe from the Railroad Company was confirmed to Mm. This act was in effect a grant to bona fide purchasers for value of such portions of the land as they had purchased from the Railroad Company. All other lands covered by the patent were public lands open to entry.

The defendants claim under entry upon the particular lands in question here as public lands open to entry, the entry being made in 1910. No question is made but that if these lands were in fact public lands when entry was so made, the entry was valid and the defendants have the superior, right. It is evident that whether or not they were public lands open to entry turns on whether or not at that time the title or claim of title of the Railroad Company had come into the hands of a bona, fide purchaser for value. The plaintiff purchased subsequently,' so that whether he purchased for value or not is immaterial. Unless some predecessor of his in his chain of title prior to 1910 was a bona fide purchaser for value, the lands were public lands when the defendants’ entry was made. The burden of showing this rested on the plaintiff. No evidence whatever was introduced upon' the point, unless the deeds of mesne .conveyance from.the Railroad Company down may be so considered. They each recite a consideration, and' a consideration would also be presumed for the purpose of supporting them. But, as the main opinion states, neither the presumption for that limited purpose nor a recital of consideration can operate to prove that the grantees were bona fide purchasers for value. The result is that it must be held that the lands were public lands open to entry at the time of the entry under which the defendants claim, and that the plaintiff has no interest therein.

Shaw, J., concurred.

Rehearing denied.

All the Justices concurred.  