8WEAT.r V. BURTOB.
(O£rcuit Court, S. D. California. AprU 28,1890.)
EJECTMENT-TITLE TO SUSTAIN-STATE CERTIFICATE OJ!' PURCHASE.
Recovery in ejectment being only on strict legal title, eJectment cannot be maintained on a state certificate of purchase, which is but a contract lor a patent on compliance by the purchaser with its terms, though such certificate is made by the state statutes primajacie evidence of title. .
Ejectment. Wells, Guthrie k Lee, for plaintiff. Frank P. Taylor, (T. M. McNa1Mra, of counsel,) for defendant. Ross, J. This is an action of ejectment brought by the plaintiff to recover of the defendant possession of certain land which was a portion of the land granted to the state of California as swamp and overflowed land by the act of congress of September 28, 1850. The plaintiff relies for a recovery upon a certificate of purchase issued by the receiver of the state land-office to one Lamberson on the 28th of August, 1884, to whose rights he claims to have succeeded by subsequent assignments and mesne conveyances. It will not be necessary to paRS upon the points made and argued by the counsel in the case, for the reason that ejectment cannot be maintained in the federal courts upon a state certificate of purchase, which is but a contract for the sale and conveyance of the land, to be followed by a patent conveying the legal title upon the compliance on the part of the purchaser with the terms of the contract and the full pay· mento£. the purchase price. It is true that by sectiori 3514 of the Political Code of California such certificates are made prima facie evidence of title, and that by the next succeeding section they, together with· all rights acquired thereunder, are made subject to sale by deed or assignment. But it is manifest from the provisions of the California statute upon thesubjectthat, until the issuance of the state patent, the legal title remains.in the state, and s.uch is the decision of the supreme court of thestaie in the case of Manly v. Howlett, 55 Cal. 97 j anli, since it is the 6j)tablished doctrine of the supreme court of the United States that in the federal courts a recovery in ejectment can be had alone upon the strict legal title,it follows necessarily that one holding such state certificate only, cannot maintain such an action in this court, whatever effect may be given in the state courts to the state statute making such certificates prima facie evidence of title. In a late case in the supreme court-that of Langdon v. Sherwood, 8 Sup. Ct. Rep. 429-the court,in speaking of a: statute ofihe state of Nebraska which declared that the duplicate receipt of the receiver of any land-office that the books of his office show the sale of a tract ofland to a certain individual "is proof oHitle, equiv. alent to a patent, Ilgainst all but the holder of an actual patent," saId that, "whatever effect may be given to this statute in the courts of the state of Nebraska, it is obvious that in the circuit .court of the United States it cannot be received as establishing the legal title in the holder
of such certificate.» It is true that the Nebraska case was one of a del'ivation of title from the U.nited Statesj ;where the existence of the certificate only implied that the legal title remained in the government. But it is just as plain 'fb1it; 'In'thecase' a'tbar, 'the existeJice' of the certificate only implies that I titlerexulilinB, in the for, /lccording, to theproviBions of the ,state statute·inrespect to the disposal oIthe swamp and overllow,eq',lanq's, <lcrtifiGlite;' which is but a contract' for the sale of the land., and is issued the payment of 20 per cent. of the purchase money, is to be followed by a patent conveying the title when the purchaser has complied with all of the conditions of the contract, and paid the full amount of the purchase nioney."The Circuit court," said the supreme¢ourt in Langdonv. Sherwood, "cannot, presume that a patent has been issued to the party to whom such certificate was issued, or to anyone towhorri he may have transferred it. ; ' If it never issued, it is obvious, that the legal title remains in the United States, and, ,according to the well-settled' principles' of the action of ejectment, the plaintiff 'cannot be entitled to recover in the action at law. To receive this evidence, and to give to. iUhe effect .ofproving a legal title in the holder of such a .receipt, because the statute ofihe state proposes to give to it suchan effect, is to violate the prinCiple asserted in Bagnell v. Broderick, 13 Pet. 436; that it is for the United States to fix the dignity and character of the evidences of,titles,which.issue from the government. And .it is also in violation of the other principle settled by the cited decisions, that in the courts of theUnited States a recovery in ejectment can be had alone upon the strict;!egal title, lind that the courts of law do not enforce in that manner the ,equitable title evidenced by these certificates. » To the same effect is Hwper v. Scheimer,28 235j Fenn v. Holme, 21 How 482;andSheirbum v. De .Gwdova, 24 How. 425, in which latter case tbe,coilrtsaid: "By a statilte of Texas, 'all cei'tiftcates for head-rights, land scrip, bounty warrants, or any. other eVidenceof.:right to land recognized by the laws of this government, which havebeenillllcateq,c;>rs\1fveyed,sball be deemed and held as sufficient toauthqrize of acti()ns of ejectment, trespass, or any other)egal remedy given ,by law.' Hart. Dig. .art. 3230. The mony adduced by the plaintitf;itwould seem, would have authorized a suit in the courts of Texas, where rights, whether legal or equitable, are disposed of in the s&mesuit. But this court has established, after full consideration, ,that in the courts of the United States suits for the recovery of land can only .00 maintaine4uppna legal .It is not conteI\dlld in this case that the plaintiff has mOre than an incipieyt eql,ljty. This was so fully considered by the court in Fenn v. Holme, 21 How. 481, that a further discussion is unnecessary;" ... , .
In view,gf,these decisions,,itseems to me clear that. there must be judgmenUol' .defendant,regp,fplees of the by counsel in the case. ·is ,proper to add in the case of SmiJh v. MiJ.chell, 32 Fed. rRep.' 680, .the point now consjc;lere;d and determined was not bl'oughtto the attentioDof the court. Judgment for. defendant.
BAWITZBR t7. W'I'.tift.
WYATT It aL
CoNNOR fl. SAMB.
(c-trcwtt COUrt, S. D. CaUfO'mf.a, April 1(, 18110.)
ReV'. St. .N. Y. pt. 2, e. 4, tit. 1, § 7, upon the formation of limited partnerships, r&quires that'an affidavit of one or more general partners shall be 1lled with the original certificate, stating that the sum .therein speqi1ied to hal'e been contributed by special partner was actually and in good faith paid in cash. Held tnat, on a auit to charge a special ass general partner; an· answer whien, instead of an averment that Buch sum was paid t alleges that suell aftldavit duly filed, is not de-. murrable" since the affidavit Itself, if given in. evidence, would be prima JaclI proof ofsbchpayment.
At Law. On demurrer t<), the answer. Rothchild &- Ach and Brunson,. Wilson &-. Lamme, for plaintiffs. Dooner &- Burdett, for defendants. Ross, J. In this case the plaintiffs seek to charge the defendant Newhall as a general partnf:lr in the firm of C. A. Wyatt & Co., composed of the defendants Wyatt and and. heretofore existing and doing business in the state 'of New York. To the complaint, Newhall has answered, and among other things sets up that he was a limited partner, only, in the firm, and that prior to the commencement of this action the business of the firm was suspended, and the firm practically dissolved, by the absconding of Wyatt; that subsequently, and also prior to the bringing ,of this suit, defendant Newhall ,pommenced an action against Wyatt in the supreme court of the state of New York, in which action a receiver was duly appointed by the court of all of the property and aseetS of the firm, which receiver qualified, and took into his possession all of its property and assets, which he still holds; that prior to the going into, effect of the copartnership, and to the commencement of business by ·the firm, the respective partners, under and pursuant to the provisions ofthe statutes of the state of New York proViding for the formation of such limited partnerships, acknowledged, and caused to be recorded and published, the certificate required by the statute; and that at the same time each of the partners filed his affidavit, in due form, setting forth that the amount specified in said certificate as contributed of the United by. the. special partner was actually paid in in . . States. .The pOint of the demurrer which has been filed to this defense is that the answer should expressly allege that the contribution of the special: partner waspaid:in, in cash, before the .certificate was filed. doubte,dly such payment must have been made before the protection afforded'bythe statute could attach to the specialparther. But tlia question now is one of and. the answer of the'defendant Newhall'seems:to me to comply with the requirements of the rule as stated inBates'Law of Limited Partnership at section 1991, and in the C888I