OCR Text |
Show Supreme Court Decision.. Washington, 29, The full opiuionl of the supreme court in the case of Samuel S. Sherman us. Buick, delivered de-livered by Judge Miller, is published. Suerman sues to recover possession of land claimed under a United States patent dated May 15th, 1869, which defendant claimed under a patent from the state of California, dated January 1st, 1S69. The laud was part of section 36, township 5 south, range 1 east, Mount Diablo meridian, aud the Btate's title is supposed to rest on! the act of congress, March 3d, 1853, granting to Baid state for school purposes pur-poses every sixteenth and thirty sixth Bectioo, according to the surveys thereafter to be made, of the public lands. Plaintiff offered to prove that he settled upon the land as early as December, 1862, and had ever since resided on it; that the land was not surveyed until August lhb, 1866, and that he filed and proved his preemption pre-emption claim in November, lfitJO, receiving a patent certificate. The court excluded this evidence, gave judgment for defendant, and ; the California supreme court affirmed it. The federal supreme court reverses this judgment and holds that the testimony, whether oral or documentary, which shows want ol power in otilcers who issue a patent, is admissible in an action at law to defeat a title set up under it. In Buch cose the patent is absolutely void, and not merely voidable aud tbe party is not obliged to resort to a court of equity to have it so declared. In construing the act of March 3d,' 1853, the court held that school sec- j tions granted by section six to the state, are also excepted from the : operation of the preemption law, to vnich by tbe same section the public lands generally are subjected; that the seventh section of the a.:t pro- i vides that the rule by which thej right of preemption in the school sec-1 tion is governed, aud by that rule a settlement is protected if surveys i ascertain iti location to be on a school ! section. In such case the only right; conferred on the stale by the statute i to select other land in lieu of thai, eo occupied. Tbe proviso in section : e-x forbidding preemption on uusur- veyed lands alter one yesr from the ! passage of the act is limited to the. lands not excepted out of that section, and has no application U) the school sections bo excepted. I |