Marquez v. Frisbie

Opinion — Crockett

By the Court, Crockett, J.:

It is conceded by the plaintiff’s counsel that this case comes strictly within the decision in Hutton v. Frisbie, 37 Cal. 475, unless it can be distinguished from it on the ground that the plaintiff was in the actual possession of the premises in controversy for many years prior to the passage of what is known as the Suscol Act (12 U. S. Stats. at Large, 808), and that Frisbie, the patentee under that Act, had not at any time reduced this land into his actual possession; and it is insisted that, under the second section of the Act, Frisbie was not entitled to enter lands of which he had never been *626in possession. But it is made the special duty of the Register and Receiver, before permitting entries under the Act, to take proof of the necessary facts entitling the applicant to the benefit of the Act. Such proof has been taken in this case, and the land has been awarded to Rrisbie. There is no allegation that the Land Department has been imposed upon by any false or fraudulent proofs offered by Rrisbie in respect to his possession; and the ground of the plaintiff’s complaint is that the Land Department has decided (erroneously, as he claims) that the Suscol Act had the effect to withdraw from the operation of the general preemption laws of the United States all the lands included in the grant to Vallejo, and for that reason refuses to entertain the plaintiff’s application as a preemptioner. But in Hutton v. Frisbie, and in the more recent decision of the Supreme Court of the United States in Whitney v. Frisbie, 9 Wallace, 191, the construction given to the Act by the Land Department was sustained. If the land was withdrawn from preemption under the general law, as decided in these cases, it results that the attempt of the plaintiff .to enter it was futile, and conferred no title, either legal or equitable.

Judgment affirmed.