
    [No. 5869.]
    JAMES O. WANZER v. W. F. SOMERS.
    State Lands — Curative Act of Maeoh 24th, 1870. — The Act of March 24th, 1870, “to legalize certain applications for the purchase of lands belonging to the State,” had the effect to validate the defective applications covered thereby.
    Appeal from the District Court of the Seventeenth Judicial District, County of Los Angeles.
    The defendant applied to purchase the land in controversy June 12th, 1868; his application was affirmed January 20th, 1878; a certificate of purchase was issued to him March 14th, 1878, the usual payment being made by him, and on the 15th of March, 1875, he paid the full purchase price to the Treasurer of Los Angeles County, and forwarding his certificate of purchase to the Surveyor General, demanded a patent.
    On December 21st, 1875, before the patent issued to the defendant, the plaintiff filed his application, and on the .following day filed his protest against the issuance of the patent to the defendant, demanding that the contest be referred to the Courts for adjudication. The reference was made May 3rd, 1876, and this action was commenced, in accordance therewith, June 29th, 1876.
    The complaint alleges that the defendant’s application was defective and void, in that it did not. show the applicant to be of lawful age, or that he was a resident of the State, or that the land was unoccupied: that it did not contain a sufficient description of the land; that it was not accompanied by affidavit's of witnesses verifying tlie said facts as required by law; and that the application was filed with the State Locating Agent prior to the date of the filing of the official map or plat of the township in which the land is situated.
    The defendant, in his answer, controverted these allegations.
    The application, affidavits, protest, and. accompanying papers were as follows:
    “ Grant of the sixteenth and thirty-sixth sections.
    “Application for location under the State. Location No. 927, San Francisco Land District.
    “ San Francisco, March 30th, 1868.
    “To State Locating Agent: I, William F. Somers, of Los Angeles County, State of California, do hereby apply, under the provisions of an act entitled “ An Act to provide for the sale of certain lands belonging to the State,” approved April 27th, 1863, to purchase and locate the following described land in Los Angeles County: Northwest one-quarter north one-half of northeast one-quarter lot number two, thirty-six and seventy one-hundredths acres; lot number three, twelve and two one-hundredths acres, and lot number four, twenty-seven and thirty-four one-hundredths acres, of section twenty-seven (27), township three (3) south, range fourteen (14) west, San Bernardino base • and meridian, containing three hundred and twenty-six and six one-hundredths acres,- according to the returns of the United States Surveyor General, and which I agree to accept in lieu of the full amount of three hundred and twenty acres, for which I agree to pay to the State of California one dollar and twenty-five cents per acre, in the following manner, viz: Twenty per cent, of the purchase-money, together with interest on the balance at the rate of ten per cent, per annum, in advance, from the date of location in the Locating Agent’s office. This location has been made by me in lieu of lieu lands included in number nine hundred and nineteen, to wit: East one-half of section sixteen, township four south, range five west, San Bernardino meridian, which is included in a private grant.
    
      “AFFIDAVIT FOR LOCATION.
    “State of California, County of Los Angeles — Location No. 927, San Francisco Land District.—I, William F. Somers, of Los Angeles County, State of California, being duly sworn, depose and say: That I am a native-born citizen of the United States, and a resident of the State of California, of lawful age ; that I am an applicant for the purchase and location of the above described lands; that the same are unoccupied by any person other than myself; and that to the best of my knowledge and belief, there is no valid claim existing upon the land so described adverse to the claim I hold and apply to be located, and that there is no improvement of any description on said land, other than my own. Witness my hand:
    William F. Somers.
    “ Sworn and subscribed to before me this 30th day of March, a. d. 1868. T. D. Mott,
    “ County Clerk Los Angeles County.
    “ By J. W. Gillette, Deputy.
    “We, Samuel B. Wick, Henry ITowkshirst, J. B. Treadwell, the first and third of Los Angeles County, State of California, being duly sworn, each for himself deposes and says that he is acquainted with the lands described in the above application and sought to be located by the above-named William F. Somers ; that there is no valid claim existing upon the land so described adverse to the claim above named, nor any improvements other than those owned by the said applicant, to the best of his knowledge and belief, and that he neither has nor expects to have any interest, directly or indirectly, in the claim so desired to be located by the said William F. Somers.
    “ Witness our hands: “ Samuel B. Wick.
    “Henry Howksiiirst.
    J. B. Treadavell.
    “ Sworn to and subscribed before me this 30th day of March, a. d. 1868. “ T. D. Mott,
    “ By J. W. Gillette, Deputy. ‘ County Clerk.
    
      “I, Leander Eansom, State Locating Agent for the San Francisco Land District, do hereby accept the above offer, under the following conditions: That if such location be made and approved by the United States, it shall be for the use and benefit of the applicant, on his complying with all the conditions and provisions of the Act for the location and sale of lands belonging to the State, approved April 27th, 1863. .
    “ Leander Eansom,
    “ Locating Agent.
    “ Office of Locating Agent, April 20th, 1868.
    “ State Land Office, State of California.—I hereby certify that the foregoing is a copy of a document on file in my office : that said copy has been compared by me with the original, and is a correct transcript therefrom, and of the whole of such original.
    “In witness whereof, I have hereunto set my hand and affixed my official seal, this 5th day of May, A. d. 1876.
    “ [seal.] _ • Wm. Minis,
    “ Surveyor General and ex-officio Eegister of the State Land Office.”
    “ AFFIDAVIT
    To acompany applications to purchase State lands, as required by Act of Legislature, passed April 27th, 1863 :
    “ I do solemnly swear that I will support, protect, and defend the Constitution and Government of the United States against all enemies, whether domestic or foreign; that I will bear true faith, allegiance, and loyalty to.the said Constitution and Government, any ordinance or law of any State, Convention, or Legislature, or any rule or obligation of any society or association, or any decree or order from any source whatsoever, to the contrary notwithstanding, and that I will support the Constitution of the State of California; and further, that I do this with a full determination, pledge, and purpose, without any mental reservation or evasion whatsoever, and that this oath is not taken for the purpose of acquiring title to, interest in, or possession of any land, in order that such title, interest, or possession may be transferred to any person or persons to enable such person or persons to evade the provisions of any law of the State of California, or any regulation of the General Land Office at Washington. [Signed] W. F. Somers.
    “ Subscribed and sworn to before me this 30th day of March, 1868. [Signed] T. D. Mott,
    “ County Clerk Los Angeles County.
    “ By J. W. Gillette, Deputy.
    
      
    
    “ I certify the above affidavit and indorsed description of land to be true copies of the original on file in the office of the County Recorder. 1 T. D. Mott,
    “ By J. W. Gillette, Deputy. “ County Recorder.
    “ Grant of the sixteenth and thirty-sixth sections for school purposes:
    “ State of California, Locating Agent’s Office—San Francisco Land District, Location No. 927.—I hereby certify that, in accordance with the provisions of an act entitled “ An Act to provide for the sale of certain lands belonging to the State,” April 27th, 1863, and, with the instructions of the Surveyor General, I have located as a portion of the school lands three hundred and twenty-six and six one-hundredths acres of public land in the County of Los Angeles, at the request and for the use of William F. Somers. Said land is described as follows: Northwest one-quarter north one-half of northeast one-quarter lot number three, twelve and two one-hundredths acres; lot number four, twenty-four and thirty-four one-hundredths acres, and lot number two, th'irty-six and seventy one-hundredths acres, in section twenty-seven, township three south, range fourteen west, San Bernardino meridian. Taken in lieu of lieu lands included in number nine hundred and nineteen, to wit: East one half of section sixteen, township four south, range five west, San Bernardino meridian. This location has been made by me in the name and for the benefit of the State of California, at the TI. S. Land Office for the San Francisco District, in the City of San Francisco, and with the consent of J ames W. Shanklin, Register of said District, bearing date the 22nd day of April, A. D. 1868, and the same is entered and numbered upon my Register of Locations.
    “ Witness my hand, at office in San Francisco, this 22nd day of April, 1868. Leander Ransom.
    
      “ State Locating Agent for the San Francisco Land District.
    “ Surveyor General’s Office—Sacramento, 21st day of January, 1873.—The above location is hereby approved, and the Treasurer of Los Angeles County shall receive in payment therefor from Wm. F. Somers one hundred and twelve dollars within fifty days from the record of the Surveyor General’s approval, being twenty per cent, of the purchase money and one'year’s interest on the balance in advance, at the rate of ten per cent, per annum from the date of location in the Locating Agent’s office. Robert Gardner,
    “ Surveyor General.
    “ State of California—Sacramento, December 22nd, 1875. —To Hon. Wm. Minis, Register of State Land Office: I hereby protest against the issuance of patent, or other evidence of title, to Wm. F. Somers, or any other person other than myself, for the following described land, viz: The northwest one-quarter, north one-half of northeast one quarter, lot two (2) and lot four (4) of section twenty-seven, (27) township three south, range fourteen west, San Bernardino meridian, lying and being situated in the County of Los Angeles, State of California, on the ground that all the applications now on file for said land (except my own) are void and insufficient, and especially that the application of W. F. Somers to purchase said land is so void and insufficient, inasmuch as it does not conform to the requirements of the Act of April 27th, 1863, under which it was made, and is not accompanied by the affidavit of three disinterested persons, stating, among other things, that the applicant, W. F. Somers, is a resident of this State, and that the lands were unoccupied by any person except said applicant, W. F. Somers. That said application of W. F. Somers, not being accompanied by such affidavit of three disinterested persons, is insufficient under a decree of the Supreme Court of this State, in the cause of Jas. F. Cunningham v. John Crowley, rendered at its October Term, 1875, and to which decree reference is hereby made. And I also protest against the issuance of patent for said lands to said Somers for other reasons not necessary to be stated in this protest. I also hereby claim that location number one thousand one hundred and ninety-five of Los Angeles Land District, in my own name, and embracing the land herein described, is a good and valid application for said land, and is on file in the office of the Surveyor General of this State, and that under said application I have the right, as against any other person or persons, to become the purchaser of said land.
    
      “ Wherefore, I demand that the contest so arising as to who has the better right to become the purchaser of said land fA>m the State of California be referred by you to the proper Court for judicial determination. James O. Wanzer.
    “ State Land Office, State of California.—I hereby certify • that the foregoing is a copy of a document on file in my office; that said copy has been compared by me with the original, and is a correct transcript therefrom, and of the whole of such original.
    “ In witness whereof, I have hereunto set my hand and affixed my official seal, this 5th day of May, A. D. 1876.
    “ Wm. Minis,
    “ Surveyor General.
    “ Received and filed December 23rd, 1875.
    “ Wm. Minis,
    “ By E. Twitchell. Register.
    Judgment was rendered for the plaintiff, and the defendant appealed.
    
      John D. Bickell and Thos. A. Brown, for Appellant, argued that the defects in the defendant’s application, if any there were, were cured by the Act of March 24th, 1870 (Stats. 1869-70, p. 352).
    
      H. T. Hazard, Blanchard & Van Fleet, and Coghlan & McClure, for Respondent, contended that the Act of March 24th, 1870, only applied to applications made under the Act of March 28th, 1868, while the defendant’s-application was made under the Act of April 27th, 1863.
   By the Court :

We shall assume that the acts of defendant looking toward the acquisition of title prior to June 12th, 1868, when his application was filed in the Surveyor General’s office, are not to be considered as in any way strengthening his claim.

But that application, however defective, was made valid and effectual by the curative statute of March 24th, 1870. The plaintiff’s application was not filed until after the last-named date. When, therefore, the defendant made application, there were not “ two or more applicants for the purchase of the same land, or conflicts between claimants.”

The defendant'is therefore entitled to purchase the land from the State.

Judgment reversed and cause remanded, with directions to the Court below to enter judgment for defendant.  