GEORGE MILLER, Respondent, v. GEORGE D. PRENTICE, Appellant, 82 Cal. 104

Sharpstein, J. Ejectment. Complaint in the usual form, all the allegations of which are denied by the answer. The demanded premises were state school lands. Plaintiff relies on a certificate of purchase as establishing his title and right to the possession of said premises. The court found for plaintiff, entered judgment in his favor, and denied defendant’s motion for a new trial. From the judgment and order denying his motion for a new trial, defendant appeals.

His contention here is,-that he proved on the trial that the land is suitable for cultivation, and that plaintiff had never been an actual settler on it; and that plaintiff is not a citizen of the United States. That the plaintiff was never an actual settler on the demanded premises is shown by evidence free from conflict. And by evidence likewise free from conflict it is shown that the defendant was an actual settler on said premises, and that he had applied in the proper mode to purchase the same from the state.

One of the requirements of the code is that any person desiring to purchase any portion not less than the smallest legal subdivision of any of the sixteenth and thirty-sixth sections must make an affidavit, stating “whether the land is or is not suitable for cultivation; and, if it is, that the applicant is an actual settler thereon.” In this case the plaintiff did not state in his affidavit whether the land was or was not suitable for cultivation, and the evidence on the trial, we think, without material conflict shows that it was suitable for cultivation.

The plaintiff states in his testimony “that the land is what you would call grazing land. Some of it could be plowed, but not more than the smallest legal subdivision at any one place. I don’t think you could find more than eighteen or twenty acres at any one place, if you could find that, which you could plow. The land is hilly, and, in my judgment, not fit for agriculture.” We do not think that this materially conflicts with the testimony of witnesses who testify that they are well acquainted with the land in controversy and that it is suitable for cultivation.

The evidence as to the citizenship of plaintiff is clearly insufficient to establish that fact. He swears that he was born in France and was naturalized in the city of New York, but has lost his naturalization papers. We do not doubt that the defendant who is in the actual occupation of the premises is in a position to show, when his right of possession is assailed, that his assailant has no title or right of possession in and to the premises. The plaintiff’s certificate is only prima facie evidence of his title, and may be impeached by proving that he could not legally purchase the land.

As we have before stated, his affidavit is defective in omitting to state whether the land was or was not suitable for cultivation, and the evidence shows that it was and that plaintiff was not an actual settler upon it. Therefore, the finding of the court that the plaintiff is the Owner of and entitled to the possession of the demanded premises is not justified by the evidence. Judgment and order reversed. Thornton, J., and McFarland, J., concurred.