Cunningham

The defendant’s application for the location of the lands in contest was insufficient. The statute of April 27, 1863 (p. 593), under which the application for the location was made, requires that the application be accompanied by the affidavit of three disinterested persons, stating, among other things, that the applicant is a resident of the State, and that the lands were unoccupied by any person except the applicant. The affidavit, filed on behalf of the defendant, failed to state those facts. After the location was approved, the defendant failed to make payment within the time required by the statute. The defendant, not insisting that the proceedings on his part were sufficient to authorize the issuing of the certificate of purchase, contends that the court has no jurisdiction of the subject-matter of the action, and that the certificate of purchase. is not void, but at most only *132 voidable at the suit of the State, and not at the suit of a private party who claims under proceedings subsequent to those under which the certificate issued to the defendant.

In respect to the first point, the defendant’s position is, that the court acquires jurisdiction only by virtue of the…