Action to cancel a patent issued by the state of California, in 1876, to A. W. Macpherson for certain lands in Mendocino County.
It is alleged in the complaint that the lands in question are agricultural lands which were listed to the state February 15, 1870, in lieu of a section 36, that section then supposed to be within the exterior limits of a reservation, but subsequently ascertained to be excluded therefrom; that said selection was confirmed to the state by the provisions of the act of Congress approved March 1, 1877, entitled, “An act relating to indemnity school selections in the state.of California”; that Macpherson made application September 23, 1868, to the state surveyor-general to purchase the lands in lieu of said school section, and that on March 20, 1870, his application was approved by the surveyor-general, and that thereupon he paid to the county treasurer of Mendocino County twenty per cent of the purchase-money with the first year’s interest on the balance, and received from the register of the said land-office a certificate of purchase thereof; that on the 21st of September, 1876, upon paying the balance of the purchase-money and surrender of said certificate,, letters patent were issued to him by the state; that on the 29th of March, 1888, the defendant succeeded to whatever right and interest in the land Macpherson had by virtue of said application, certificate of purchase, and letters patent, but did not enter into possession to the lands until September, 1890. The complaint further alleges that the application of Macpherson was null and void, for the reason that in his affidavit therefor he failed to describe the lands by legal subdivisions; and was also false and fraudulent for the reason that he stated therein that there were no improvements on said land other than his own, whereas, in fact, the said land was at that time in the actual occupation and possession of one Joseph Hardy, who remained in such occupation and possession until his death in 1874, and whose son succeeded to Ms interest and con-*460tinned in the possession of the land until within two years prior to the commencement of this action (August 6,1891). The complaint further alleges that on the eleventh day of July, 1891, the relator possessed the requisite qualifications therefor, and on that day made application to the state surveyor-general to purchase the said lands as a portion of the state school lieu lands, but that officer refused to file said application, for the reason that the said patent to Macpherson was outstanding and uncanceled. Plaintiff therefore asks that the letters patent issued to Macpherson be canceled and that the relator be adjudged to have the right to file his application to purchase said lands. To this complaint the defendant demurred, and his demurrer having been sustained, judg- ■ ment was entered in his favor, and the plaintiff has appealed.
Whatever defects there may have been in the application of Macpherson, they were cured by the act of March 24, 1870. (Stats. 1870, p. 372; Copp v. Harrington, 47 Cal. 236; Rooker v. Johnston, 49 Cal. 3.) The provision in the act of March 27, 1872, limiting the effect of that act in the matter of school lands to-the amount of three hundred and twenty acres for any one purchaser, has no application to the present case. As MacphersoAs application to purchase was made September 23, 1868, prior to the passage of the Curative Act of 1870, after his application had once been validated it was not in the power of the legislature to place other limitations to the title thus conferred upon him. Moreover, the act of 1872 was superseded by section 3573 of the Political Code, which is substantially the same as the act of March 24,1870. Hence the averment in the complaint, that prior to March 24, 1870, he had purchased from the state more than three hundred and twenty acres of school lands, is immaterial.
By the act of Congress approved March 1, 1877 (19 U. S. Stats., p. 267), commonly known as the “ Booth Act,” the title to these lands was confirmed to the state. “This statute was a full and complete ratification by Congress, according to its terms, of the list of indemnity school selections which had' been before that time certified to the state of California by the United States as indemnity school selections, no matter how defective or insufficient such school certificates might originally have been, if the lands included in the lists were not of the *461character of any of those mentioned in section 4, and if they had not been taken up in good faith by a homestead or pre-emption settler prior to the date of the certificate.” (Durand v. Martin, 120 U. S. 372, affirming Martin v. Durand, 63 Cal. 39.) This ratification by the United States of the listing of the lands was equivalent to a grant of those lands to the state as of the date of the listing, February 15, 1870, and the title thus ratified was within the effect of the Curative Act of March 24,1870, and was thereby validated as though the lands had belonged to the state at the time of the passage of the act. The expression to the contrary in the opinion of Mr. Justice Thornton in Cucamonga Fruit Land Co. v. Moir, 83 Cal. 105, did not receive the approval of the court and cannot be regarded as authority.
Section 338 (4) of the Code of Civil Procedure declares that an action for relief on the ground of fraud or mistake must be commenced within three years after the cause of action accrues, and further provides that the cause of action in such case is not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake. In People v. Blankenship, 52 Cal. 619, this provision was held to apply to an action by the state to cancel a patent for land alleged to have been procured by fraud. The plaintiff herein seeks to take the present case out of this limitation by averring: “ That the fraudulent and false statement made by Macpherson was not known by the relator until within the past two years, nor was it discovered by the land-officers or the attorney-general of this state until on or about the eleventh day of July, 1891.” The relator is not, however, the “aggrieved party,” within the meaning of section 338, and the averment that the “false statement” was not known to the officers is not sufficient to exempt the action from the provisions of the section. The statement itself must have been known to the officers at the time it was received by them from Macpherson, and as any defects in that statement, whether fraudulent or false, were cured by the act of 1870, it is immaterial whether or not they were subsequently ascertained by the land-officers of the state.
The judgment is affirmed.
Paterson, J., and Garoutte, J., concurred.
Hearing in Bank denied.