Rosecrans

A patent may be attacked collaterally when the State has no title in the land patented. (Patterson v. Winn, 11 Wheat. 352 ; Stoddard v. Chambers, 2 How. 284 ; Durfee v. Plaisted, 38 Cal. 80 .)

No lieu land can be located in place of land included within *215 the limits of a Mexican grant until the survey of the grant becomes final.

A pre-emptor who has made his application is in such privity with the source of title as to enable him to attack a patent which is void. (Frisbie v. Whiting, 9 Wall. 187 .)

John D. Bicknell and Haight & Taylor, for the Respondent.

The land having been listed to the State, the fee-simple passed. (Act of Congress of August 3rd, 1854; Lester’s Land Laws, vol. 1, p. 236; Bugnall v. Broderick, 13 Peters, 436 .)

The purchaser from the State is not bound to look back of the listment.

The patent cannot be impeached collaterally. (Hodopp v. Sharp, 40 Cal. 69 .)

The defendant is not in such privity with the title as to enable him to impeach the patent. (Rhodes v. Craig, 21 Cal. 422 ; People v. Stratton, 25 Cal. 243 .)

The plaintiff claims under a patent issued to him by the State for the land in controversy, which in the year 1868 was selected by the…