The land in controversy is a part of a thirty-sixth section, and by virtue of the Act of Congress of March 3, 1853, as we construed it in Sherman v. Buick (45 Cal. 656), the title vested in the State; and by means of the State patent, the title was transferred to the defendant, unless the operation and effect of the judgment in Morris v. True,, which is set up in the complaint, precluded the defendant from relying on title derived from the State.

*608It is unnecessary to notice any of the preliminary objections of the plaintiff, to the effect that the answer- raises no issue as to the judgment in Morris v. True; and .that in the motion for a new trial there is no specification which calls in question the implied finding in favor of the. jdaintiff upon the issue in respect to the judgment, for the matters determined by that judgment are set forth in the complaint, and thereupon the question arises as to whether the defendant is thereby estopped to aver title in himself derived through his patent from the State.

It is averred that the defendant made application to purchase the lands from the State; that the plaintiffs in that case filed with the Register of the State Land Office their protest, etc., on the ground that the title was vested in them, and that the State had no title; and on the further ground that they had the prior right to purchase the lands from the State. After stating that a contest arose-before the State Register; that it was referred to the District Court; that an Action was instituted, in which the defendant appeared, etc., it is averred that a judgment was duly made and entered, whereby it was adjudged that the legal title to the premises was vested in the plaintiffs, under their patent from the United States; that the State had no title or interest therein, and that the defendant was not entitled to receive from the State Register a certificate of purchase. Upon looking into the judgment, it is .found that in addition to the matters averred in the complaint, it is adjudged that neither party is entitled, under his application, to purchase the lands from the State; and that the defendant have judgment for his costs. After the entry of that judgment, the State Register issued to the defendant a certificate of purchase, and subsequently a patent was issued to him by the State.

The defendant contends that the Court had no jurisdiction to decide the question of title—that is to say, to determine whether the title' had vested in the State—that the issue referred was necessarily confined to the question as to which of the applicants had the better right to make the purchase from the State. If this proposition be not sus*609tamable—if the Court had jurisdiction to determine that the title was not in the State—the conclusion is irresistible that the determination of that issue is binding upon the defendant, and that he is now estopped to aver that the title had in fact vested in the State. If the Court possessed such jurisdiction the judgment was binding upon the officers of the State Land Department, to the extent at least, that they had no authority to issue to either of the parties to that action a certificate of purchase or a patent. Tyler v. Houyhton (25 Cal. 26) was an application for a mandamus to compel the State Register to allow the petitioner to contest an application for the purchase, from the State, of certain lands as lieu-lands; and it was held that the petitioner was authorized to contest the application, although he was not an applicant to purchase the lands from the State. And it was held that “it is of primary consequence to ascertain what land belongs to the State. When application is made for the purchase of any given parcel of land, it is of the first importance, alike to the interest of the purchaser and the State, to ascertain whether such land is subject to selection and location by the State.” That is to say, the issue as to whether the land was the land of the State, or was subject to selection and location by the State, was a material issue in the contest. That issue would, also, be a material issue in the action instituted in pursuance of the reference of the contest to the District Court. It is manifest, we think, that the Court would have no jurisdiction in a contest between two rival claimants for the purchase of the same land, unless the State had acquired the title, or, what amounts to the same thing, had taken such steps in the selection and location of the land, that the title would pass to the purchaser from the State. The issue of title in the State must, therefore, be a material issue, and no reason is perceived why its determination in a contest which the State Register referred to the District Court, should not be as binding and conclusive on the parties, as a similar determination in any other action between the same parties. It results from this construction of the effect of the judgment in Morris v. True that the defendant is estopped to *610aver that the patent issued to him by the State, vested in him the title to the land in controversy; and by means of the same judgment he is estopped to deny that the patent issued by the United States to the plaintiff, transferred to them the title to the premises.

It is urged by the defendant that the plaintiff’s patent is void, as issued without authority of law. We are of the opinion, as stated in Durfee v. Plaisted (38 Cal. 83), that “the patent, although not expressly provided for in the Act, (The Suscol Act,) issues in pursuance of the entry as the usual, and perhaps necessary mode, in the absence of any other provision for the transmission of the legal title to, the purchaser.” The proceedings under the Suscol Act' had upon the plaintiff’s application to purchase, and the patent issued to the plaintiff, if liable to attack by a private person on the grounds now urged by the defendant, that they did not have the requisite possession of any legal subdivision of the quarter section which includes the lands in controversy, and that they were not entitled to purchase under that Act, etc., cannot be attacked by the defendant, because he does not connect himself with the title to the lands in controversy.

Judgment and order affirmed.

Neither Mr. Chief Justice Wallace nor Mr. Justice Niles expressed an opinion,