The lands in controversy were selected on the part of the State, and a certificate of location was issued to the plaintiff in 1863; but, as the lands had not then been surveyed by the United States, the certificate was void.
The official plat of the survey of the township was returned to the Begister of the proper land office on the 28th day of November, 1865, and on the 9th day of December, 1865, the plaintiff re-located the lands; and on the 10th day of April, 1867, the lands in controversy were listed to the State. On the 15th day of April, 1870, the Begister of the State Land Office issued to the plaintiff a certificate of purchase, reciting therein that it appeared from the certificate of the County Treasurer, bearing date December 9, 1865, that the plaintiff had paid twenty per cent, of the purchase-money, and the interest on the balance, etc.
The defendant claims the premises as a part of his homestead claim, taken up under the Act of Congress of May 20, 1862, and produced the receipt issued to him by the Begister of the United States Land Office at San Francisco, dated December 18, 1865, for the fees required to be' paid upon the filing of a homestead claim.
The fourth section of the Act of March 28, 1868 (Stats. *281867-8, p. 508), provides that the certificate of purchase “ shall be received in any Court of justice in this State as being prima facie evidence of title,” and that provision is applicable to all certificates of purchase issued after that Act took effect.
The certificate of purchase gave the plaintiff the right of possession of the premises, unless the proceedings on his part were rendered unavailing by" the homestead claim of the defendant; and conceding that the latter proved that he had taken the requisite steps to acquire a homestead, and that it would be valid and entitle him to the possession, except for the proceedings taken by the plaintiff, the question presented is; which party acquired the better right; which party would acquire the title, if each should thereafter proceed in the mode prescribed by law. The party who first commenced his proceedings to acquire the title has the better right. (Smith v. Athearn, 34 Cal. 506.)
The plaintiff re-located the land before the defendant filed his homestead claim, and that act secured him the better right to purchase the premises.
Judgment and order affirmed.