
    [No. 8,123.
    Department One.
    February 28, 1884.]
    O. S. McCOY, Appellant, v. PLEASANT BYRD, Respondent.
    State Lands—Application to Purchase—Affidavit.—An applicant for the purchase of State lands must set out in his affidavit the facts required by the statute to be stated therein, and among other things, he must state whether there are or are not settlers upon the land which he seeks to purchase.
    Appeal from a judgment of the Superior Court of the county of Tulare.
    The action was brought upon a contest originating in the State land office, concerning the rights of the parties to purchase a tract of swamp and overflowed land, and which was referred by the register of that office to the Superior Court for determination, under the provisions of section 3414 of the Political Code. The plaintiff set out in his complaint the terms of the affidavit made and filed by him upon his application to purchase, which failed to state whether there were or were not settlers upon the land. A demurrer to the complaint was sustained, and the plaintiff declining to amend, the defendant had judgment.
    
      
      T. M. McNamara, A. J. Atwell, and Wm. H. H. Hart, for Appellant.
    
      Brown & Daggett, for Respondent.
   Ross, J.

It is well settled that an applicant seeking to purchase land from the State must set out in his affidavit the facts required by the statute to be stated therein. (Botsford v. Howell, 52 Cal. 158; Hildebrand v. Stewart, 41 Cal. 387; Woods v. Sawtelle, 46 Cal. 389.) The statute under which the plaintiff’s application is made (Pol. Code, § 3443) requires the affiant to state, among other things, that he knows the land applied for and the exterior bounds thereof, and knows, of his own knowledge, that there are no settlers thereon; or, if there are, that the land has been segregated more than six months by authority of the United States. From the affidavit of the plaintiff it does not appear whether there are or are not settlers on the land which he seeks to purchase. The courts cannot hold immaterial, matters which the statute declares must be stated.

Judgment affirmed.

McKinstry, J., and McKee, J., concurred.  