DEPARTMENT No. 1. [Filed November 26, 1880.] STEPHEN D. HOSMER, APPELLANT, VS. ABBY DUGGAN ET AL., RESPONDENTS. MEXICAN GRANTS OF SPECIFIC QUANTITIES WITHIN LARGER EXTERIOR LIMITS -SETTLEMENTS ON LANDS AFTERWARDS EXCLUDED. None of the lands within the exterior boundaries of a Mexican grant for a less quantity than is contained in such exterior boundaries is open to settlement under the pre-emption laws; and no occupation thereof by a settler previous to survey originates any right which the Government is bound to respect. PRE-EMPTION CLAIMS ADJOINING AND INTRUDING UPON MEXICAN GRANTS. Where a settler, who had been evicted from a Mexican grant, settled on adjoining land and filed a pre-emption claim for his settlement, including a portion of the land from which he had been evicted, and which was afterwards, on final survey, excluded from the Mexican grant: Held, that the claim and the settlement of the land outside the exterior limits of the grant conferred no rights to the lands inside those limits, they being at the time in the possession and use of the Mexican grantees. NO PRE-EMPTION OF LAND IN POSSESSION AND USE OF OTHERS. Settlement, inhabitation and improvement of one piece of land can confer no rights to another adjacent to it, which at the commencement of the settlement is in the possession and use of others, though upon a subsequent survey by the government it prove to be a part of the same sectional subdivision. Appeal from the District Court of the Twentieth Judicial District, Santa Clara County. Moore, Laine, Delmas and Lieb, for appellant. Ross, J., delivered the opinion of the Court: In 1842 the Mexican Government granted to one Francisco Estrada a rancho known as the "Pastoria de las Borregas Rancho," to the extent of two square leagues, to be located within certain exterior boundaries of larger dimensions. These exterior boundaries included the premises in controversy here. Notwithstanding that fact, the plaintiff in October, 1856, settled upon the tract in dispute with the intention of pre-empting it under the laws of the United States, he having at the time, and ever since, the personal qualifications necessary to enable him to pre-empt public land of the Government. In February, 1862, the parties holding the Mexican grant, but who are not named in the record before us, recovered judgment in ejectment against the plaintiff, and under it the latter was evicted from the said premises, and never afterward re-entered. In 1863 the plaintiff moved upon what was afterwards ascertained by the public surveys of the United States to be the northwest quarter of the northwest quarter of section one, township seven, range two, west of the Mt. Diablo meridian, where he had a house and outbuildings. He also occupied about twenty acres of the northeast quarter of the said northwest quarter, making in all about sixty acres of what turned out to be, when the public surveys were made, as hereinafter stated, the north half of the north half of section one aforesaid. Upon these sixty acres he has ever since resided. The other portion of the said north half, which included the premises in controversy, was then-to wit, in 1363-in the possession of one Daniel Lyons and others, to whom Estrada, the Mexican grantee, had sold it, with other land embraced within the boundaries of the grant. Lyons died on the ninth of July, 1866, leaving the defendants his heirs. The grant was finally confirmed, and in 1865 the final survey of the tract confirmed was made and approved, which excluded from its boundaries the premises in question. The land was afterwards surveyed by the authorities of the United States, the plat duly filed, and in July, 1866, the plaintiff filed a declaratory statement in the proper Land Office claiming to pre-empt the whole of the north half of the north half of said section one, alleging his settlement thereon in October, 1856, and in September following made proof of his claim before the Register and Receiver, and was by them allowed to enter the land. He then paid the purchase money and received a certificate. In the meantime the Act of Congress of July, 23, 1866, was passed, and under it the defendants, as heirs of Lyons, claimed the right to purchase the premises in question. Thereupon the Register and Receiver were directed by the Commissioner of the General Land Office to investigate the entry of plaintiff, and accordingly testimony was taken before them on behalf of the respective claimants, resulting in a decision by the Register and Receiver in favor of the plaintiff. On appeal to the Commissioner, and subsequently to the Secretary of the Interior, the decision of the Register and Receiver was reversed, and the land in dispute awarded to the defendants, to whom a patent was afterwards issued. The plaintiff, claiming that he has the equitable title to the land by reason of his settlement thereon in 1856, and the subsequent proceedings already mentioned, instituted the present action by which he seeks to charge the defendants as trustees of the title for his benefit, and to compel them to transfer it to him. The question mainly argued at the bar, and also in the brief of counsel for the plaintiff, namely, whether the heir of a purchaser, in good faith and for value, from a Mexican grantee, is entitled to purchase from the Government the lands mentioned in the seventh section of the Act of July 23, 1866, need not be considered, for the reason that it is incumbent on the plaintiff to show that he has the equitable title to the property before he can maintain the action; and this the record fails to establish. This is very clearly shown by the Supreme Court of the United States in the case of Hosmer vs. Wallace, 7 Otto, p. 579, when the Court speaks of the same settlement and the same proceedings on the part of the plaintiff as are shown in the present case. The Court there say: "The plaintiff had acquired by his settlement in 1856 no such interest in the premises as could control the disposition of them by the United States, should it be ultimately determined that they were not covered by the grant. The land within the boundaries of the grant was not open to settlement under the pre-emption laws, and his occupation from 1856 to his eviction in 1862 was that of a trespasser, and did not originate any rights which the Government was bound to respect. The land was not then 'public land,' in the sense of those laws; and even if it had been public land, to which no private claim was made, it would not have been subject to settlement under them until it had been surveyed. The Act of Congress of March 3, 1853, allowing a settlement on unsurveyed lands in California, was limited in its operation to one year. (10 Stat. 246, proviso to section 6.) By the Act of March 1, 1854, this privilege was extended for two years from that date, when it expired. (Id. 268.) No other statute was passed opening unsurveyed lands in California to pre-emption settlement until May 30, 1862. (12 Id. 409.) The occupation, therefore, of the plaintiff in October, 1856, was a mere intrusion upon the claim of another, without any license of the Government; and after he was evicted by legal process in February, 1862, the premises were in the possession of the defendant, and, therefore, not open to settlement by him. Whatever right of pre-emption the plaintiff acquired by his settlement to land outside of the boundaries of the Mexican grant originated after May 30, 1862; but as to land within those boundaries, no right could be initiated until the land was excluded from the tract confirmed by the approved survey in June, 1865. In neither case could the right of pre-emption extend to land in the occupation of the defendant at those dates. To create a right of pre-emption there must be settlement, inhabitation, and improvement by the pre-emptor, conditions which cannot be met when the land is in the occupation of another. Settlement, inhabitation, and improvement of one piece of land can confer no rights to another adjacent to it, which at the commencement of the settlement is in the possession and use of others, though upon a subsequent survey by the Government it prove to be a part of the same sectional subdivision. Under the pre-emption laws, as held in Atherton vs. Fowler, 96 U. S. 513, the right to make a settlement is to be exercised on unsettled land, the right to make improvements is to be exercised on unimproved land, and the right to erect a dwelling house is to be exercised on vacant land. None of these things can be done on land when it is occupied and used by others. There was, therefore, no valid adverse right or title, except that of the United States, to the premises in controversy, when they were excluded by the approved survey from the tract confirmed; nor had the plaintiff the right of a preemption claimant to them. Judgment affirmed. We concur: McKinstry, J., McKee, J. In the Superior Court OF THE CITY AND COUNTY OF SAN FRANCISCO. F. D. BRANDON, PLAINTIFF, VS. THE CALIFORNIA SUGAR MANUFACTURING COMPANY ET AL., DEFENDANTS. ATTORNEY'S PURCHASE OF A CLAIM WITH INTENT TO BRING SUIT THEREON. Section 161 of the Penal Code, making it a misdemeanor for an attorney to buy any evidence of debt, or thing in action, with intent to bring suit thereon, is constitutional; and a contract contrary thereto is unlawful. C. S. Roe, defendant's attorney, for the motion. Van Ness & Moore, plaintiff's attorney, against the motion. SULLIVAN, J.: This is a motion by defendants for leave to amend their answer by setting up that the plaintiff in the action, who is the assignee of the claim sued upon, was at the time of purchasing the claim an attorney, practicing law in the Courts of this State, and that he purchased the claim with intent to bring suit thereon. The motion is based on Section 161 of the Penal Code, which reads as follows: "Every attorney who, either directly or indirectly, buys, or is interested in buying, any evidence of debt or thing in action, with intent to bring suit thereon, is guilty of a misdemeanor." Under Section 1667 of the Civil Code, a contract must be held unlawful which is contrary to an express provision of law. Section 161, Penal Code, above cited, contains the provisions found in two sections of the New York Statutes, which were passed upon by the Court of Appeals of that State in the case of Mann vs. Fairchild, reported in 2 Keyes, at page 115. The purchase made in the case referred to was made in good faith and with a view to subserve the interests of a client; but after a lengthy discussion of the question, the Court held that the attorney could not enforce in Court any rights acquired under the purchase. They say: "The purchase in this case was contrary to public policy and to good morals, and is in contravention of the positive statutes of the State, and cannot be enforced." (See Weeks on Attorneys, p. 466; Pennington vs. Townsend, 7 Wend. 276.) Plaintiff objects to the amendment, claiming that it sets out no defense, for the reason that Section 161 above cited is, as he claims, unconstitutional. In support of this position counsel cites Article I, Section 1, and subdivisions 2 and 33 of Section 25 of Article IV of the Constitution. The first section recites that all men "have the inalienable right of acquiring, possessing, and protecting property." But this right is not absolute; the acquisition and enjoyment is regulated in a number of ways for the general good of society. The right of attorneys to acquire and possess property of the character here in question has in many places been limited, and such limitations have been declared constitutional. (Weeks on Attorneys, 222; People vs. Wallbridge, 6 Cow. 222; People vs. Wallbridge, 3 Wend. 120.) * * Section 25, Article IV, provides that "the Legislature shall not pass local or special laws, * Second. For the punishment of misdemeanors. Thirty-third. In all other cases where a general law can be made applicable." In answer to the objection based on Section 25, several considerations suggest themselves. The object of that sec |