Avery

— The plaintiff, to prove his title, introduced a patent issued by this state for the lands in controversy, Which has been selected by the state in lieu of a portion of a, *874 sixteenth section; but there was no evidence that the lands had been listed to the state by the United States. The seventh section of the act of Congress of March 3, 1853, to provide for the survey of the public lands in California and granting lands to the state for the purposes of public schools, etc., provides that lands in lieu of sixteenth and thirty-sixth sections reserved for public use, taken by private claims or preemption claims, shall be selected “agreeably to the provisions of the act of Congress approved on the twentieth of May eighteen hundred and twenty-six, entitled ‘An act'to appropriate lands for the support of schools in certain townships and fractional- townships not before provided for, ’ and shall be subject to approval by the Secretary of the Interior.” Neither that act nor the act of March 3, 1853, provides for the issuing of patents for the lands so selected nor do the acts themselves “convey the fee simple title of such lands.” The act of Congress of August 3, 1854, provides that…