Rutledge

If the ruling in Hosmer v. Wallace ( 47 Cal. 461 ) was correct, the judgment in this case for the defendant must be affirmed, as the cases are not distinguishable in the particulars on which that decision rests. But counsel for the plaintiff (appellant) contends with . earnestness, that the ruling in that case cannot be supported on reason and auhority, and asks us to review it. We find it unnecessary, thowever, in this case, to discuss anew the questions of law decided in Hosmer v. Wallace , as the judgment must be affirmed on other grounds. But we are not to be understood as admitting by implication the incorrectness of that decision, which was founded on the authority of Johnson v. Towsley ( 13 Wall. 73 ). It is claimed, however, that in the late case of Warren v. Van Brunt ( 19 Wall. 646 ), decided since Hosmer v. Wallace , the ruling in Johnson v. Towsley has been commented upon and explained by the Supreme Court of the United States, so as to show that our construction of that decision was erroneous. But we have deemed it unnecessary to consider to what extent, if at all, the decision in Warren v. Van Brunt has modified the ruling in Johnson v. Towsley, as we construed it,…

dissenting:

The defendants claim under Swinford, who in 1863 purchased a portion of the rancho above-named, the exterior lines of which comprised the land in controversy. In the month of May, 1867, Swinford filed his application to purchase the land in controversy, under the provisions of the *398 act of Congress of July 23, 1866, “An Act to quiet lnncl titles in California.” The Commissioner of the G-eneral Land Office directed the register and receiver to reinvestigate the entry of the plaintiff, to take the testimony offered by the plaintiff and Swinford in support of their respective claims, and report the same, together with their decision thereon, to him. The testimony was taken, and those officers decided in favor of the plaintiff; but on appeal to the commissioner, and from him to the Secretary of the Interior, the decision of the register and receiver, so far as it related to the land in controversy, was reversed, and the land awarded to Swinford. It is admitted by the pleadings that the plaintiff possessed the requisite qualifications of a pre-emptor, and that he had performed all the acts, and taken all the proceedings requisite on his part to entitle him to pre-empt…

concurring:

If the plaintiff had actually received his certificate prior to the passage of the act of 1866, the defendant—as purchaser from the Mexican grantee, in actual possession— would have been entitled to prove before the officers of the Land Department that the pretended pre-emption had been asserted, and the certificate obtained against the policy of the laws by fraud practiced on those officers. Congress recognized the equities of those who had purchased from Spanish or Mexican grantees, and who held actual possession under such purchases, and determined to give them, at the minimum price, the lands of which they so held possession, unless some other person had acquired a patent, or an absolute right to a patent, prior to the passage of the act. And, to render the grant effectual, Congress further gave to or recognized in such purchasers from Spanish or Mexican grantees the right of challenging, before the land officers, the legal title, or an apparent perfect equity, acquired by a pretended pre-emptioner fraudulently.

Thus construed, the act of 1866 was declaratory of the law, as subsequently held by the Supreme Court of the United States in the Suscol cases. The…