Moir

— Three justices of the court concurred in the opinion filed in this case, and three dissented. I concurred in the judgment only. At the time of expressing this qualified concurrence, it did not occur to me that the result was to leave it uncertain what particular points had been decided. To relieve this uncertainty, I take occasion now to say that I concur in that part of Justice Thornton’s opinion relating to the claim of plaintiff based on the United States patent to Marsicano. As to the claim based upon Mullan’s application to purchase from the state, I express no opinion, because the record does not show to my satisfaction that Mullan ever received a certificate of purchase covering the demanded premises, and the points discussed are not involved.

The following is the former opinion of the court, referred to in the above dissenting opinion of Mr. Justice Paterson, rendered in Bank on the 31st of July, 1889:—

— Ejectment. The complaint is in the ordinary form. The answer specifically denies plaintiff’s ownership, and that the defendant wrongfully or unlawfully entered into or withholds possession of the *109 premises. Plaintiff claims title under a patent of the United States and a certificate of purchase from the state of California. Defendant contends that the patent is void, because the United States had no title, the land having been listed to the state in 1870, and confirmed by Congress; that the certificate of purchase issued to Mullan, defendant’s grantor, is void, because the state never had any title until the passage of what is known as the Booth bill, March 1, 1877, eight years after Mullan’s certificate of purchase had been issued, and seven years after the act of March 24, 1870, had been passed. The defendant’s answer does not allege, and the evidence does not show, that he occupies such a status as authorizes him to control the legal title, or to question the authority of the officers who issued the patent. A party seeking to attack a patent must show that he is connected in some way with the original source of title, so as to be able to aver that his rights are…

—Ejectment. Judgment for plaintiff; appeal by defendant from judgment and order denying his motion for a new trial.

The land in controversy is the west half of section 22, of township one (1) south, range seven (7) west, San Bernardino meridian.

The plaintiff claimed under a patent of the United States for this land issued to one Marsicano, bearing date March 20, 1886, and a deed from Marsica.no to it conveying this land, bearing date the 15th of December, 1886.

The documents above mentioned were introduced in evidence by plaintiff, and it then rested.

This land was listed to the state of California on the 1st of July, 1870.

On the 11th of December, 1885, the commissioner of the general land-office of the United States canceled this listing to the state for the reasons stated in his letter, which appears in the record.

The reasons stated in this letter are as follows: The whole of section 22, above mentioned, had been listed to the state of California on the date above mentioned in lieu of section 16, township 13 south, range 3 west, San Bernardino meridian; but a part only of this sixteenth section, viz.', 343.13 acres, was within a private grant. The remainder of the said…