WILLIAM BORLAND v. S. S. LEWIS, 43 Cal. 569

By the Court, Rhodes, J.: Ejectment to recover a parcel of swamp and overflowed land. The plaintiff appeals from the judgment. It appears from the findings that the plaintiff purchased the land in 1855; that in 1856 he paid one year’s interest and received a certificate of purchase; that he made no further payment until 1865, when he paid all the interest which had accrued, except for two years, which the Legislature had remitted. The plaintiff never had the possession of the premises in controversy.

Traverse, the defendant’s grantor, made application to purchase the land January 4th, 1858; caused a survey to be made; received and recorded a certified copy thereof; paid one year’s interest on the purchase money; and he, and the defendant after his purchase, paid the interest for several succeeding years; but neither Traverse nor the defendant received a certificate of purchase. It also appears that in 1861 Traverse conveyed the premises to the defendant; that Traverse, from his purchase to his conveyance to the defendant, had the possession of the premises, and that thereafter the defendant was in possession.

The purchase of each party was made under the provisions of the swamp land Act of 1855 (Stats. 1855, p. 189). It was provided by

section five that a person might purchase such lands on a credit of five years, by paying to the County Treasurer the interest for one year in, advance. Thereafter the interest was required to be paid annually in advance. It was made the duty of the County Treasurer to pay over the money to the Treasurer of State, at the times when the State revenues were required to be paid, and transmit a certificate showing the purchase; and it was made the duty of the Treasurer of State to certify the same to the Secretary of State, who was required to issue a certificate of purchase. The sixth

section provided, that “ if any person or persons, purchasing lands upon a credit of five years, as provided in

section five of this Act, shall fail or neglect to pay the principal and interest within the said term of five years from the date of the certificate of purchase, or shall fail or neglect to pay the interest, as required by this Act, for the space of one year from the time such interest may become due, or shall fail or neglect to reclaim at least one half of the land so purchased within the said term of five years, such neglect or failure shall work a forfeiture of such lands, and the same shall be resold as if no purchase had been made.” The plaintiff argues that there is no forfeiture in fact, because of his failure to pay the annual interest, until it is so judicially declared by a competent tribunal; that the statute merely specified certain facts, which, being proved, furnish the basis for a judgment or forfeiture.

In our judgment it >was intended, by the sixth section, to make the failure to pay the interest for one year after it became due operate as a complete forfeiture of the purchaser’s rights in and to the land. Had it been designed that the officers charged with the sale of these lands should delay further action until the forfeiture had been judicially determined, it would have been so expressed in the Act; but, on the contrary, that

section provides that a failure on the part of the purchaser to pay the interest, etc., “ shall work a forfeiture of such lands, and the same shall be resold as if no purchase had been made.” The last clause would be useless if the resale could not be made until the forfeiture had been pronounced by a Court, for that would effectually rescind and put an end to the contract, when, of course, the lands would be subject to sale without further directions.

It requires no argument to prove that the State may waive a forfeiture—as it is contended by the plaintiff was done by the Act of April 9tl^ 1861 (p. 140)—and it is equally clear that if the State, after the forfeiture and before the waiver, resells the land, the waiver will not have the effect to divest the rights acquired by the second purchase. Judgment affirmed. Mr. Justice Crockett did not participate in this decision.