Flint

— The plaintiffs rely for a recovery of the possession of the premises upon a certificate of purchase issued to their grantor in 1862 by the register of the state land office, and the confirmation of the selection of the land, by virtue of the act of Congress of the 23d of July, 1866, to quiet land titles in California: 14 U. S. Stats., p. 218. Neither they nor their grantors were at any time in the possession of the premises. The plat of the United States survey of the township, which includes the lands, was filed in the office of the register of the proper land district, December 13, 1866. There is no evidence that the plaintiffs have taken any steps to “present and prove up their purchase and claim,5 ’ as provided for by the third section of the act.

The defendants entered upon the premises in May, 1869, and were in possession at the commencement of the action. They possess the requisite qualifications as pre-emptors, and have filed with the register their declaratory statements.

The certificate of purchase at the time it was issued was void, because the lands therein described had not then been surveyed, and the purchaser acquired no right in the land by virtue of the…