People ex rel. Love v. Center

Citations

• 66 Cal. 551

Syllabus

<p>Action to Quiet Title—Plaintiff out of Possession—Nature of Belief.— Section 738 of the Code of Civil Procedure authorizes an action to quiet title to he maintained hy a plaintiff out of possession. The defendant in such action may assert a legal estate, or any equity which he may claim to have enforced; and the judgment, if in favor of the plaintiff, may provide for a restitution of the possession, and decree the claims of the defendant to he invalid.</p> <p>Swamp Lands—Act of April 10, 1862, Construed—Certificate of Reolamation—Patent—Possession.—In the absence of a certificate by the governor and surveyor general to the reclamation, as required by section 6 of the act of April 10,1862, a patent for swamp and overflowed lands, purporting to he issued under such act, is void, and conveys no title or right of possession as against the state to either the original patentees or their grantees ; and the fact that the patent was signed by the governor, and countersigned by the register of the state land office, is not equivalent to such certificate, although the office of register and surveyor general were held by the same person. Nor can a message addressed by the governor to the Senate and Assembly, in which he says, “ We believe that under the provisions of the act the grantees and their assigns are entitled to, or at least have a strong claim to, the odd-numbered sections,” etc., he construed to he such certificate.</p> <p>Id. — Performance of Reclamation — Condition Precedent. — Conceding that, if the governor and surveyor general bad made the statutory certificate, it would he conclusive evidence that the condition precedent as to the performance of the reclamation had been complied with, the patentees —the condition precedent not having in fact been performed—should not be permitted to remain in possession without the certificate.</p> <p>Id.—Presumptions as to Reclamation—Burden of Proof.—At the end of three years after the passage of the statute, no presumpti