The defendant Simms had, at the date Woods filed his application to these lands, no legal or equitable claim thereto. (Pre-emption Acts 1841, 457, Vol. 5, Statutes at Large; Amendatory Acts 1853, 257, Vol. 10, Id. Sec. 6; also Act 1862, 410, Vol. 12, Id. Sec. 7, which requires declaratory statement to be filed within three months after receipt of plat, in United States Land Office.)
Onewho settles on unsurveyed public lands as a pre-emptor, but who fails to file with the register of the proper land office his declaratory statement within three months after the plat of survey of the lands is filed in the Register's office, looses his pre-emption claim as against one who in the meantime has taken the necessary steps to acquire the title to the lands. (Poppe v. Atherton , 42 Cal. 606; Decision Sec. Int., Nov. 6, 1868, Lester L. L. 405.)
Courts have no power to dispense with the requirements of the acts of Congress, that pre-emptors must file their declaratory statement within three months after the return of the plat to the land office. (Megerle v. Ashe , 33 Cal. 74; Damrell v. Meyers , 40 Id. 116.)
Under the provisions of the act of Congress, passed March 3, 1853, the declaratory statement of a pre-emptor must be filed within three months from the time the plat of the survey of the township is returned to the local land office, or it will not secure the claimant's right of pre-emption. (Megerle v. Ashe , 47 Cal. 632.)
A person who has neither filed his declaratory statement, nor been prevented from so doing by the fraud of another person, cannot avail himself of an entry made by such other person and a patent issued in pursuance thereof. (Damrell v. Meyer , 40 Cal. 166.)
OPINION A petition was filed for a rehearing, and the Court filed the following opinion denying the same:
The fourteenth finding of the Court is as follows:
" Fourteenth. That neither Woods nor Hollinshead have at any time resided upon or occupied any portion of this land, or ever made any improvements whatever upon the same."
The sixth finding is as follows:
" Sixth. Upon the 23d of May, 1871, the said Woods, still acting as agent for Hollinshead, filed with the land office of the University another affidavit and application for this land, in this affidavit setting forth that he was in the occupation of this land; that there were no legal or equitable claims of any other person upon the same, and that there was no occupation or settlement of this land other than the occupation of said affiant," etc.
It is not claimed that the evidence given at the trial did not support the findings.
It is further found by the court that this affidavit of Woods was false in fact; that neither he nor Hollinshead ever, at any time, occupied any portion of the land in controversy; that, on the contrary, the fact was, as both Woods and Hollinshead well knew, that Simms, a qualified pre-emptor, with his family, was in occupation with the intention to acquire the title; that he had placed on the premises improvements of a valuable and permanent character, consisting of a dwelling-house, out-buildings, fences, fruit trees, etc., and that these were of a conspicuous and prominent character, and easily to be seen from every portion of the general tract.
In short, it is in effect found that the title acquired by Hollinshead was acquired by sheer fraud and through bald perjury. Upon looking into the record, we were of opinion, and we are still of opinion, that under such circumstances a constructive trust would arise in favor of Simms which the law would fasten upon the conscience of Hollinshead, and compel him to convey to Simms the legal title which had been obtained in the manner and by the means already adverted to.
In arriving at the conclusion reached by us at the hearing, we did not suppose, as is now claimed in the petition for a rehearing filed in this case, that we had disturbed " principles and rules of law * * * settled by a long line of decisions" governing the acquisition of titles to portions of the public lands in this State. Those decisions necessarily presuppose that the conduct of the parties has been fair--at least not positively fraudulent.
But in the present case Hollinshead, through actual fraud, and as the result of perjury committed, has obtained for himself an estate to which Simms had the only equity, coupled with the right as against the government, to acquire the legal title. Nor does Simms seem to have been lacking in diligence in the assertion of his claim. That under such circumstances, Hollinshead should be decreed to relinquish his title to Simms, is not opposed to any " line of decisions" with which we are acquainted.