Public-domain · open source
OpenJurist

49 Cal. 449

Kaiser v. McLaughlin

California Supreme Court

Decided July 1, 1875

California Supreme Court · decided 1875-07-01

<p>Appeal from the District Court, Fifth Judicial District, County of San Joaquin.</p> <p>John Roland claimed a tract of eleven square leagues of land at the junction of the Tuolumne and San Joaquin rivers, under a grant alleged to have been made to him by Pio Pico, Governor of California, on the 2d day of May, 1846. On the 18th day of May, 1852, he petitioned the Board of Land Commissioners for the confirmation of the grant. The grant was rejected by the United States District ■ Court, and, on the 27th day of March, 1866, the District Court granted an appeal to the Supreme Court of the United States. The Western Pacific Railroad Company, on the 1st day of June, 1867, contracted to sell the demanded premises to Charles McLaughlin, and on the 26th day of November, 1869, McLaughlin contracted with the plaintiff, who was then in possession of the land, to sell him the same, and to give him a deed after the Western Pacific Company had received a patent therefor, and within twenty days after a demand. The plaintiff paid McLaughlin $800 on the purchase-money. The plaintiff afterwards pre-empted the land under the laws of the United States, paid for the same, and received a certificate of purchase therefor, on the 28th day of November, 1870. The Court below rendered judgment for the plaintiff, and the defendant appealed.</p> <p>The other facts are stated in the opinion. See also <7. P. B. B. Co. v. Yolland, .ante p. 438.</p>

Decided 1875-07-01

By the Court, Rhodes, J.:

¶1The plaintiff purchased from the defendant McLaughlin, the north-west quarter of section eleven, township three south, range seven east, for $1,600, of which sum $800 was-paid in hand, and the remainder was to be paid in one year from the date of the contract, June 1, 1867. The defendant agreed to convey the land to the plaintiff after the Western Pacific Railroad Company should receive a patent therefor from the United States, and twenty days after a demand for the deed. The plaintiff sues to recover back the first instalment of the purchase-money paid by him, on the ground that the land was excepted from the grant made by the Act of Congress of July 1, 1862, and July 2, 1864, to the rail*452road company, because it was then within the limits of an alleged Mexican grant, which was claimed by one John Roland. The last step in the proceedings taken by the claimant for the confirmation of his claim was the granting of an appeal by the District Court of the United States for the District of California, to the Supreme Court, from the decree of the District Court rejecting the claim of Roland; but the required bond does not appear to have been given, nor the appeal to have, in fact, been taken. The decree of the District Court rejecting the claim, therefore, remains in full force.

¶2The question here presented is the same as that in C. P. R. R. Co. v. Yolland, ante p. 438, and C. P. R. R. Co. v. Robinson, ante p. 446, and upon the authority of those cases, judgment and order reversed, and cause remanded for a new trial.

¶3Mr. Justice McKinstry, did not express an opinion.

/49/cal/449 · .json · Public domain