RHODES, J., delivered the opinion of the Court

Omitting certain intermediate conveyances, upon which no question arises, the case is simply this: The defendant purchased from the State certain parcels of the five hundred thousand acres of land granted by Congress to the State for the purpose of internal improvements; paid the portion of the purchase money required by law, and received a certificate of location and purchase of the land. Subsequently, he sold and conveyed to the plaintiffs several parcels of the land, and they entered into possession thereof, and paid to the State the balance of the purchase money - the portion due for the parcels they had purchased from the defendant being paid on their own account, and the residue being paid for the defendant; and thereafter the defendant received from the State a patent for the whole of said lands. The deeds under which the plaintiffs claim title are, in effect, quitclaim deeds in three of them the grantor having granted, bargained and sold his right, title and interest in the several parcels of land described, and two of the deeds being quitclaim in form. The defendant, after having procured the patent, refused to convey to the plaintiffs the lands he had sold to them, and claims to hold the title for his own use.

The case is too plain for argument. Whatever right, title or interest the defendant acquired in the lands sold to the plaintiffs, by means of his purchase and the certificate of location and purchase, vested in the plaintiffs by virtue of their several deeds. The most important of those rights was the right to a patent from the State, conveying the legal title, upon the payment of the residue of the purchase money. The plaintiffs, by their purchase from the defendant, and their payment to the State of the residue of the purchase money, acquired the entire equitable and beneficial interest

Points decided.

and estate in the lands, leaving the naked legal title in the State; and when the defendant took that title in his own name, he necessarily acquired it in trust for the plaintiffs. (Bludworth v. Lake, 33 Cal. 255.) A clearer case of constructive trust than this, it would be difficult to imagine, and the defendant has been unable to assign even a plausible pretext for his refusal to execute the trust, by a conveyance of the legal title.

Judgment affirmed.

H. A. DEVLIN, RESPONDENT, v. JAMES ANDERSON, APPELLANT.

REGISTRATION OF VOTERS.- Presence in the State more than six months and in the county more than thirty days, under orders as a soldier in the military service of the United States, does not by itself entitle a person to be registered as a voter.

IDEM. Mere presence as a soldier of the United States, in obedience to military orders, does not make a residence, in the sense of the Constitution and laws, in relation to the elective franchise.

IDEM.-D. being a citizen of New York, enlisted in that State as a soldier in the service of the United States. Having come to this State under military orders, and having been in the State more than six months, and in the County of Mendocino more than thirty days, but still in the ser vice, and under military orders, applied to the County Clerk to be registered as a voter in that county. Held, that in view of the foregoing facts only, he was not entitled to be registered.

APPEAL from the County Court of Mendocino County.

The case is stated in the opinion of the Court.

J. B. Lamar and Thomas B. Bond, for Appellant.

Thomas L. Carothers, for Respondent.

SANDERSON, J., delivered the opinion of the Court:

This was a proceeding by mandamus, in the County Court of Mendocino County, to compel the County Clerk to enter the name of the petitioner upon the Great Register of that county. A mandamus was allowed, and the defendant has appealed.

Points decided.

The testimony shows that the petitioner is a soldier in the service of the United States, and that he came to this State in that capacity, having enlisted in the State of New York. That at the time of his application to be registered he had been in this State more than six months, and in the County of Mendocino more than thirty days. That he came to the State and to the county under military orders, and was so in the county at the time of his application.

This testimony fails to show that the petitioner, at the time of his application, was entitled to be registered as a legal voter of Mendocino County. It merely establishes his presence in the State and county as a soldier in the military service of the United States, and nothing more. Such a presence alone does not establish a residence in the State or county, in the sense of the Constitution and laws upon the subject of the elective franchise. On the contrary, the Constitution provides that, "for the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of the United States * " or in other words,

*

in ascertaining the fact of residence, as we held in the case of The People v. Holden (28 Cal. 137), presence or absence in the service of the United States is a false quantity. In merely proving, therefore, a presence in the State and county, while in the service of the United States, the petitioner proved nothing, in effect, by which his right to be registered could be determined. Judgment reversed.

IN THE MATTER OF THE CONFLICTING LAND CLAIMS OF JOHN DUNN, APPELLANT, v. LORIN R. KETCHUM, RESPONDENT.

STATE LAND - PURCHASE Or.- Under the Act of April 27, 1863, no title to the land, and no right of possession or of purchase, inchoate or otherwise, attaches from any proceedings taken, until a certificate of the oath, prescribed by the twenty-eighth section of the statute, is indorsed on the description of the land, and filled in the office of the County Recorder.

OATH BEFORE WHAT OFFICERS TO BE TAKEN.- When a statute does not designate the particular officer by whom a required oath may be admin

istered and certified, it may be taken before any officer having general authority to administer and certify oaths.

Argument for Appellant.

APPEAL from the District Court of the Thirteenth District, County of Tulare.

This proceeding arose under the provisions of the statute directing the Surveyor General, in certain cases, to refer the contest between conflicting claimants of State lands to the decision of the District Court.

Judgment was entered in favor of Ketchum, and Dunn appealed.

The case is stated in the opinion.

H. P. Barber, for Appellant.

It is clearly evident that, under the provisions of the statute, the following requisites are necessary to enable the first applicant to perfect his right to purchase the land sought:

First That he shall make affidavit required by Sec. 3. Second-That he shall file his application and said affidavit in the County Surveyor's office, as required by Sec. 3. Third- That he shall take and subscribe the oath required by Sec. 28.

Fourth-That he shall file in the County Recorder's office the certificate of the oath required by Sec. 28, with a partic ular description of the land claimed, as required by Sec. 29.

A party claiming statute title to land, must show a full compliance with the prescribed provisions. (Sweetland v. Froe, 6 Cal. 144; Wright v. Whitesides, 15 Cal. 47.)

He who claims property by virtue of a grant, must comply with the conditions of such grant. (2 Wash. on Real Property, 547; Megerle v. Ashe, 33 Cal. 92; Mott v. Hawthorne, 17 Cal. 58.)

Williams & Thornton, for Respondent.

It seems to have been the policy of the law to secure the ownership of the lands mentioned in the Act to citizens who could stand the test of loyalty indicated in the provisions of the oath; and to that end, the provisions of the Act are such as not to require the oath to be taken until something like

Argument for Respondent.

ownership is attained. The provisions of the law are satisfied if the oath is taken when the officers of the State are about to do some act conferring ownership or dominion, and its provisions are not violated if the oath is not taken during the preliminary stages of the application, when it is uncertain whether the applicant will be invested with any right of property in the land asked for. While the preliminaries are going on, the matter of taking this oath is regarded as idle and useless; and the State, in bestowing the right to purchase, requires no such manifestation of loyalty until she choses to confer some right of property.

For this reason, the language used in the twenty-eighth and twenty-ninth sections is selected - and the significance of the words used is apparent.

Now, we contend that the Act does not require the oath to be taken until something has been done, by which a right to the land of some character passes to the applicant. This is not the case until the certificate of purchase issues, for until then, the applicant has not a right to take possession. If he takes possession, he is a trespasser. He has no right of property until he has paid some portion of the purchase money; and, until that time, according to the principles of the judgment of this Court in the People v. Shearer (30 Cal. 645), the State might take away his right to apply for the land. Until he has paid something, he stands on a privilege, or preference right, extended to him by the bounty of the State not on a right of property guaranteed to him by its laws. The State, in so shaping its legislation as to deprive him of this privilege, does nothing unconstitutional, for it deprives him of no property. The preference right of application is not affected by reason of not taking this loyalty oath. The privilege of applying, with its priority, is still conserved to the applicant to purchase. The mere application, with its survey and location made by the County Surveyor, even if approved by the Surveyor General, gives no "title to, interest in, or right of possession or occupation" of the land (language used in twenty-eighth section), nor does it "attach" the "right" (language of twenty-ninth section) of the applicant to the land. This is not the case until the