
    [No. 6,715.
    In Bank.]
    I. W. HELLMAN et al. v. HARDY JONES.
    State Lands—Indemnity School Selection — Construction oe Statute.— The land in controversy was listed to the State in lieu of a 36th section, lying within a Mexican grant, of which the final survey had not been made. The defendant, a qualified pre-emptor, settled upon the land after the selection by the State but before the listing, and in due time filed his declaratory statement, and offered to prove up and pay for the land, but his offer was refused by the register and receiver, and was not renewed after the passage of tlie Act of Congress of March 1st, 1877 (“relating to Indemnity School Selections in the State of California”). In an action of ejectment, the plaintiffs deraigning title under the State selection, held, that the defendant, having failed to present his claim and proofs to the district land officers within twelve months after the passage of the act, did not come within the saving clause contained in the 3rd section of the act referred to, and that therefore the title of the State, though originally void, was confirmed by the act, and the plaintiffs entitled to recover.
    Appeal from a judgment for the plaintiffs, in the Seventeenth District Court, County of Los Angeles. Sepulveda, J.
    The land in controversy, as appears by the findings, was selected by the State April 22nd, 1868, and listed to the State November 24th, 1871, and a certificate of purchase issued to the plaintiffs’ predecessor in interest, May 9th, 1872. The defendant settled upon the land in July, 1872.
    
      Will D. Gould, and James H. Blanchard, for Appellant.
    The case, in its main points, is identical with Rosecrans v. Douglass, 52 Cal. 313. The listing of the land to the State was void, made so by the Act of Congress of August 3rd, 1854. (Huff v. Doyle, 50 Cal. 16; Rosecrans v. Douglass, cited supra.) The Act of Congress of March 1st, 1877, does not apply to this case, as the defendant settled on the land prior to the listing of it to the State. There was no title in the State at the time the patent issued; and even supposing the title of the State to have been confirmed by the act, it did not pass to the plaintiffs’ grantor.
    
      R. M. Widney, for Respondents.
    This is a case where the defendant, without title or color of title, or the hope of either, makes a defense to a suit in ejectment, where the plaintiffs hold a patent from the State.
    
      The defendant did not within twelve months after the passage of the Act of March 1st, 1877, offer his claim and proofs, as required by the 3rd section of the act; and the act, therefore, confirms the title to the State.
    The defendant neither has nor can have any privity with the paramount source of title; and cannot, therefore, attack our patent. (French v. Fyan, 3 Otto, 169; Moore v. Robbins, 6 id. 530.) The former of these cases expressly overrules the series of decisions of this Court, commencing with Kernan v. Griffith, 27 Cal. 87.
   McKinstry, J.:

The action is ejectment, the plaintiffs claiming title through a patent from the State of California. Defendant Jones is in possession of the land, and claims right thereto as a pre-emption settler. The jury found special facts and a general verdict for defendant Jones. The court below set aside the general verdict, and gave judgment for plaintiffs upon special findings. The land in lieu of which the land in dispute was applied for by the assignor of plaintiffs was at the date of the application within the exterior limits of a Mexican grant, the final survey of which has never been confirmed. (FindingKo. 10.) The listing of the land in controversy to the State, therefore, did not transfer the title of the United States. The land in lieu of which the land was selected was not then lost to the State. (Rosecrans v. Douglass, 52 Cal. 213.) The first section of the Act of Congress of March 1st, 1877, hoAvever, provides: “ The title to the lands certified to the State of California, knoAvn as indemnity school selections, Avhich lands were selected in lieu of the 16th and 36th sections, lying Avithin Mexican grants, of which grants the final survey had not been made at the date of such selection by said State, is hereby confirmed to said State in lieu of the 16th and 36th sections, for which the selections were made.”

The third section of the same act provides: “ The foregoing confirmation shall not extend to the lands settled upon by any actual settler claiming the right to enter not exceeding the prescribed legal quantity under the homestead or pre-emption laivs ; provided, * * * that the claim of such settler shall be presented to the register and receiver of the district land office. together with proper proof of his settlement and residence, within twelve months after the passage of this act,” etc.

The only action of defendant after the refusal of his offer and payment in 1872 was limited to an ex parte motion, asking for a hearing, in September, 1876. He did not within a year, nor at any time after the passage of the Act of Congress of March 1st, 1877, present his claim or proofs to the district land officers. Judgment affirmed.

Ross, J., Thornton, J., and Sharpstein, J:, concurred.

McKee, J., concurred in the judgment.  