nesses; and, secondly, where the witnesses are shown to have been active parties to the transaction that is the subject of the inquiry, you can consider their character, their profession, and vocation in judging of the probability of their being parties to such a transaction as has been detailed; you can judge whether these parties would have been likely to offer a bribe to an officer, and, in determining that as a fact, you can judge of the character of the party who, it is alleged, made that approach.”

It is claimed for the appellant that the foregoing part of the court's charge to the jury was contrary to law, and that they were thereby misled, to the prejudice of the defendant, in this: that the language thus used by the court was susceptible of the interpretation by that body that they could infer that the witnesses for the people, Scossa and Feliz, would be likely to approach an officer with a bribe from the fact that they were persons of bad character; and that from such probability of conduct on the part of those witnesses the jury could draw the further inference of the defendant's guilt as charged. It appeared by abundant evidence that those witnesses were persons of bad character,-the one a prostitute, the other a man who lived with her in a most disreputable relation. The jury may have been misled, as defendant contends, to his injury, by the portion of the charge to which he makes objection, as it is susceptible of the construction he places upon it. We perceive in the record no further prejudicial error. The judgment and order should be reversed, and cause remanded for a new trial.

BY THE COURT. For the reasons given in the foregoing opinion the judgment and order are reversed, and cause remanded for a new trial.

(68 Cal. 539)

GIBSON V. ROBINSON and others. (No. 8,268.)

Filed February 19, 1886.

1. PUBLIC LANDS-RIGHT TO PURCHASE STATE LANDS-REFERENCE OF CONTEST. On a contest of the right to purchase state lands, an order of the surveyor general reciting what had been done by and for each of the parties to give him a right to purchase the land, and that the plaintiff had filed a demand that the contest be referred to the proper court, and then reading as follows: "It is therefore ordered and directed that the said parties be, and they are hereby, referred to the district court of the Twentieth district, in and for Monterey county, for a final determination of said conflicting claims, "-is sufficient as an order of reference of the contest, and gives to the court jurisdiction. 2. SAME-CONTEST OF RIGHT TO PURCHASE STATE LANDS-PLEADINGS IN.

In a contest to determine the right to purchase state lands, each party is an actor, and must set forth in his pleadings, and show by his proof, that he has strictly complied with the law, and by such compliance has become entitled to become the purchaser of such land.

3. SAME

RIGHT TO PURCHASE STATE LANDS-REFERENCE OF CONTEST.

A contest to determine the right to purchase state lands may be referred, although a certificate of purchase has been issued to one of the parties, as the title of the state is not divested by such certificate.

v.10p.no.3-13

4. SAME-AFFIDAVIT FOR PURCHASE OF UNSURVEYED TOWNSHIP LAND.

An applicant for the purchase of land in a township the exterior lands of which have been surveyed, but which has not been subdivided, (under the California act of 1869, section 12,) must, in his affidavit for purchase, state that there is no legal claim to the premises other than his own, and that the same are not occupied by any bona fide settler, and if he fails to do so he is not entitled to relief in the court; and his application, if defective in such particulars, though made after the passage of the act of March 27, 1872, is not cured by such act, nor by the amendment thereto of April 1, 1878. Commissioners' decision.

In bank. Appeal from superior court, county of Monterey.
William H. Webb, for appellants.

T. Beeman and S. O. Houghton, for respondent.

BELCHER, C. C. This is an action to determine a contest as to which of the parties has the better right to purchase from the state the S. E. of a certain thirty-sixth section of land in Monterey county. In the court below judgment was entered in favor of the plaintiff, and the defendant has appealed. The case comes here on the judgment roll.

The findings show the facts to be as follows: In the year 1854, the north and south exterior lines, and in 1855 the east and west exterior lines, of the township in which the land in controversy is situated were run by the United States surveyor general, but no other steps were taken relative to the survey of the township until the fall of 1874. In the fall of 1874 the township was surveyed and subdivided into sections and quarter sections, as directed by section 2395 of the Revised Statutes of the United States, and on the twenty-seventh day of November of that year the map or plat of the survey was duly approved by the surveyor general and filed in the proper United States land-office. In 1869 one Kellogg settled upon the quarter section in controversy, and placed thereon valuable improvements, consisting of a dwelling-house, barn, corrals, fences, etc. He inclosed and cultivated a part of the land, and resided in the dwelling-house with his family until June, 1871, when he sold and conveyed his improvements and possession to the mother of plaintiff. She at once took possession of the premises, and remained in possession until March, 1873, when she died, leaving the plaintiff her sole heir. From the time of her purchase till her death the plaintiff resided with her on the land, cultivating a part of it and using the balance as a dairy pasture, and ever since her death he has continued in the exclusive possession and occupation of it, claiming ownership as the heir of his mother. On the twenty-first of October, 1870, the defendant filed in the office of the state surveyor general an application to purchase the quarter section, and his application was approved on the twentyninth of December, 1873. On the third of March, 1874, he made the first payment, as required by the statute under which the application was made, and the register of the land-office issued to him a certificate of purchase. When he made his application the defendant was not, nor has he ever at any time been, in the possession or

occupation of any part of the land which he sought to purchase. On the thirteenth of January, 1875, the plaintiff filed in the surveyor general's office an application to purchase from the state the south half of the quarter section upon which his buildings and improvements were located, and afterwards, on the fifth of April, 1876, before any action was taken upon his application, and before any intervening adverse rights had accrued or attached, he amended his application so as to include the entire quarter section, of which he was then in the actual possession. All the land in the township was agricultural land, and fit for cultivation, and each of the applicants was qualified and competent to purchase school land from the state.

1. It is claimed for the appellant that the court below had no jurisdiction to hear and determine the case, because no proper and sufficient order was made by the surveyor general referring the contest between the parties to the court for trial. In the complaint it is alleged that the plaintiff demanded of the surveyor general that the contest between the plaintiff and defendant be referred to the proper court for determination, and thereupon that officer did refer said contest to the district court, etc., for adjudication. These averments are not denied. by the answer. Attached to the complaint is a copy of the order made by the surveyor general, which, after reciting what had been done by and for each of the parties to give him a right to purchase the land, and that the plaintiff had filed a demand that the contest be referred to the proper court, reads as follows: "It is therefore ordered and directed that the said parties be, and they are hereby, referred to the district court of the Twentieth judicial district in and for Monterey county for a final determination of said conflicting This order was sufficient, we think, to refer the contest,

and to give the court jurisdiction of the case.

It is further claimed that there was no contest to be referred, because a certificate of purchase had been issued to appellant, and nothing was left for the surveyor general or register to do, except, when final payment should be made, to prepare and issue to him a patent. In support of this view Somo v. Oliver, 52 Cal. 378, is cited. In that case it was held that a contest cannot be made before the surveyor general in respect to the right to purchase land for which a patent has been issued to one of the parties; but that is not in point here. A patent divests the state of its title, but a certificate of purchase has no such effect. It has been held in many cases in this state that a contest may be made where only a certificate of purchase has been issued. Woods v. Sawtelle, 46 Cal. 389; Cunningham v. Crowley, 51 Cal. 128; Christman v. Brainard, Id. 534.

2. When the defendant made his application the land was in the occupation of Kellogg, to whose possession the plaintiff afterwards succeeded. The application was made under the act of March 28, 1868. St. 1867-68, p. 507. Section 52 of that act provides that whenever any resident of this state desires to purchase any portion, not

less than the smallest legal subdivision of a sixteenth or thirty-sixth section of any township in the state, which has been surveyed by authority of the United States, he shall make an affidavit stating, among other things, "that there is no occupation of said lands adverse to any that he or she may have; or, if there shall be adverse occupation, then he or she shall state that the township has been sectionized and subject to pre-emption three months or over; and that said adverse occupant (giving his or her name) has been in such occupation for more than sixty days." Section 12 of the act, as amended in 1870, (St. 1869-70, p. 875,) provides "that in cases where the townships have not been subdivided, but township and other lines have been established so as to clearly show that a tract of land is included in any thirty-sixth section, and the parties applying for the same make affidavit that there is no legal claim to the same other than his or their own, and that the same is not occupied by any bona fide settler, the surveyor general may approve such locations without the acceptance of the register of the United States land-office, and the register of the state land-office may issue certificate of purchase for the same."

As the township was not surveyed and sectionized until 1874, it is apparent that defendant's application was not, and could not have been, made under section 52. Medley v. Robertson, 55 Cal. 396. Was it made under section 12? If it was, his affidavit must have stated that there was no legal claim to the premises other than his own, and that the same were not occupied by any bona fide settler. But there is nothing in the complaint, answer, or findings to show that the affidavit contained such statement, and no presumption can be indulged in that it did. In cases of this kind each party is an actor, and must set forth in his pleadings and show by his proofs that he has strictly complied with the law, and by such compliance has become entitled to purchase the land. If he fails to do this, he can obtain no assistance from the courts. Woods v. Sawtelle, 46 Cal. 392; Cadierque v. Duran, 49 Cal. 356; Christman v. Brainard, 51 Cal. 536; Lane v. Pferdner, 56 Cal. 122.

But it is said that defendant's application, however defective it may have been, was made good by the act for the relief of purchasers of state lands, which was passed March 27, 1872. St. 1871-72, p. 587. The first section of that act provides:

"When application has been made to purchase lands from this state, and payment made to the treasurer of the proper county for the same, in whole or in part, and a certificate of purchase or patent has been issued to the applicant, the title of the state to said lands is hereby vested in said applicant, or his assigns, upon his making full payment therefor: provided no other application has been made for the purchase of the same lands prior to the issuance of said certificate of purchase.'

Obviously this had reference to cases where not only the application, but part or full payment, had been made, and the certificate of

purchase issued prior to the time of its passage. Rowell v. Perkins, 56 Cal. 226. It was a curative act, and not prospective in its operation; and as the defendant did not make any payment, or receive his certificate till March, 1874, he can claim nothing under it.

Our attention is also called to the act of April 1, 1878, amending the last-named act. St. 1877-78, p. 914. This act cannot affect the case for the reason that it was passed after the plaintiff made his application, and after this action was commenced, and by its terms is not to be "construed to remedy any defect in any application, or the issuing of any certificate, other than that of payments in the wrong county."

When the plaintiff made his application to purchase the land he was in possession, and had a right to purchase it, unless the defendant had acquired a prior and better right to do so. As no such prior and better right was shown, the court properly entered judgment in favor of the plaintiff, and that judgment should be affirmed.

BY THE COURT. For the reasons given in the foregoing opinion the judgment is affirmed.

(68 Cal. 559)

KLUMPKE v. BAKER and others. (No. 9,098.)
Filed February 25, 1886.

1. HUSBAND AND WIFE-GRANT TO WIFE BY HUSBAND-SUBSEQUENT TITLE VESTS IN WIFE.

A conveyance of land by a husband to his wife by deed, containing the word "grant" in the proper clause thereof, and containing no other words in any part of the deed indicating a less estate, raises the presumption that a fee-simple title was intended to pass, and a subsequent reconveyance to him of a naked legal title from those to whom he had previously executed a deed of trust to secure the payment of a debt does not inure to the benefit of the community, but passes, by operation of law, to the wife by virtue of such former conveyance by the husband to her by grant.

2. TAXATION-ASSESSMENT TO ONE NOT OWNER-VALIDITY OF TAX Deed.

A tax deed to land owned by a married woman will pass no title if it be based upon an assessment to her husband, who does not own the land, nor any interest therein.

Commissioners' decision.

Department 1. Appeal from superior court, city and county of San Francisco.

E. W. Ashby, for appellant.

W. C. & Isaac Burnett, for respondents.

FOOTE, C. The appellant, Klumpke, instituted this action to quiet the title to land which he had bought at tax sale. The court below (the trial being had without a jury) gave judgment for him, but afterwards, on motion of defendants, made and entered an order granting them a new trial, and from that this appeal is prosecuted. That tribunal assigned as a reason for making the order that, as appeared