Hemphill v. Davies , 38 Cal. 577 ( 1869 )

Rhodes, J., delivered the opinion of the Court:

McKee, who held the possessory title to the lands in controversy, executed the note and mortgage in suit, and subsequently conveyed the lands to the defendant, and the defendant filed his declaratory statement with the Register of the proper land district for the purpose of pre-empting a part of said lands, and the Register issued to him the usual certificate of the filing of such declaratory statement. There are certain other facts in the case, among which are, that McKee executed a subsequent mortgage to the defendant; that he leased the premises to the plaintiffs; that, at the time of the execution of the deed of McKee to the defendant, the defendant’s mortgage was released and plaintiff’s lease was cancelled, and the defendant paid a portion of plaintiff’s mortgage and promised to pay the balance, which was to remain a lien upon the premises, etc.; hut they have no material bearing upon the only point we deem it necessary to consider. Judgment was rendered for the plaintffs in the usual form, ordering the premises to be sold for the satisfaction of the amount due the plaintiffs.

The point upon which the appeal is taken is, that the Court erred in ordering all the title of the defendant in the premises to be sold, without reserving the title that he acquired from tho United States. There can be no question that whatever title passed to the defendant by means of McKee’s deed, is subject to sale in satisfaction of the mortgage debt. The defendant does not controvert this position. That title is the only title that appears to be involved in the action. A declaratory statement, or a Register’s certificate of the filing of such declaratory statement, is not title. It is merely an application—an offer to purchase, after the requisite proof of residence, qualifications, etc., shall be made. When this is done, and payment is made, and the certificate of purchase is issued, then the purchaser acquires what is recognized by the laws of this State as title derived from the United States. The defendant states in his answer that he made the requisite proof of his pre-emption claim, paid the purchase money and received a certificate of purchase; but it is not so found by the Court, nor does the record contain any evidence of his proceedings in that behalf, beyond the issuing of the certificate of the filing of the declaratory statement.

Judgment affirmed.