No 2,374.

#### THOMAS MONTGOMERY, Respondent *v.*L. P. WHITING, Appellant.

Pke-emption. — Right op Pabty to Pbe-empt Lands apteb Execution Sale op His pobmeb Possessoby Right. — Tlie sale of a possessory right held under a declaration to pre-empt, at Sheriff’s sale, and the subsequent eviction of the party in possession by the purchaser at such sale, under a judgment in ejectment, is no impediment to the filing, by the party evicted, of anew declaration of intention to pre-empt, and the perfecting of the same, under a new settlement, on the same subdivision of the public lands, and embracing the same lands from which he had been evicted.

Idem. — Relation op Contbact. — Newly-acqdibed Title. — There is no such relation of contract between the party so acquiring a new title, and the purchaser at the Sheriff’s sale, as to constitute the former the trustee of the latter, as to such newly-acquired title, nor does such title enure to-the benefit of the purchaser at the Sheriff’s sale.

*295Idem. — Judgment in Ejectment. — Estoppel.—The judgment in ejectment is no liar to tlie acquisition of sucli new title, nor does it operate as an equitable estoppel *in pais,*against the party acquiring such title.

Appeal from tbe District Court of tbe Second District, Lassen County..

Tbe facts are stated in tbe opinion.

*J. Lambert,*for Appellant.

*First*— Plaintiff being in possession as owner of tbe premises, and baying declared bis intention to pre-empt tbe same at tbe time of tbe execution of the Sheriff's deed, and tbe rendition of tbe judgment in ejectment, stood in tbe relation of a trustee to defendant, as to any after acquired title to tbe premises, and any such after acquired title would enure to tbe benefit of defendant. Tbe facts present clearly a case of constructive trust. By bis declaration of intention to pre-empt, plaintiff connected himself with tbe. United States title, and being indebted to defendant, tbe judgment of the County Court upon that indebtedness, tbe sale of tbe premises occupied by plaintiff, tbe execution of tbe Sheriff’s deed under tbe sale, conveying to defendant, all tbe right, title, and interest of plaintiff to tbe tract of land in dispute, and afterwards tbe judgment of ejectment recorded in favor of defendant for tbe same premises, conclusively force tbe plaintiff into tbe position of a trustee bolding tbe legal title for tbe benefit of bis trustor, tbe defendant. Defendant was, and is, tbe equitable owner of tbe land possessed and improved by plaintiff at tbe time of tbe execution of tbe Sheriff’s deed and tbe entry of tbe judgment of ejectment. If so, then plaintiff became tbe trustee of tbe equitable owner. *(Wilson*v. *Castro,*31 Cal. 436; *Estrada*v. *Murphy,*19 Cal. 272; *Emeric*v. *Penniman,*26 Id. 124; *Bludioorih*v. *Lake,*33 Id. 262-3.)

*Second*— Plaintiff is estopped by tbe judgment and tbe deed from asserting title now, in prejudice of defendant’s rights. Tbe acts of plaintiff were sufficient to create an equitable estoppel. *(Davis*v. *Davis,*26 Cal. 39.)

*296
      *E. V. Spencer,*for Bespondent.

A quit-claim deed, does not operate as an estoppel or create a trust as to subsequently acquired title.

At tbe moment of tbe completion of tbe Sheriff's sale and tbe execution of tbe quit-claim Sheriff’s deed (defendant having bid tbe whole amount of bis judgment, at tbe sale, and having accepted such deed), tbe relation of debtor and creditor ceased to exist; and there was no obligation, legal, equitable or moral, existing on tbe part of plaintiff to defendant to protect defendant in tbe property which be bad acquired by such purchase, or which could prevent plaintiff from afterwards acquiring title to tbe land in question, or from which a trust could be implied by any possible construction of tbe authorities cited by appellant. *(Clark*v. *Baker,*14 Cal. 632.)

It will be found upon examination, that in each of tbe cases cited by appellant, where tbe Court announced tbe existence of a trust, it is where tbe *cestui que trust*bad an actual equitable title to, and interest in tbe land prior to tbe acquisition of. tbe legal title, by tbe trustee. Such is not tbe case in tbe present suit, and, consequently, tbe authorities do not apply.

As tbe purchaser (appellant) could only acquire such an interest in tbe premises as tbe debtor bad at tbe time of tbe sale, it follows that be purchased only tbe improvements with tbe right to possession, until tbe Government or its vendee .(whoever be might be), should make an entry upon tbe land and exercise dominion over it.

In support of this view, I call tbe attention of tbe Oourt to tbe opinion of Attorney-General Speed, referred to and adopted by this Court in *People*v. *Shearer*(30 Cal. 651); and which has been recently affirmed by tbe Supreme-Court of tbe United States. (See also *Doran & Wilson*v. *O. P. B. B. Co.*24 Id. 245.)

Temple, J.,

delivered the opinion of tbe Court:

In November, 1866, plaintiff was in possession of and bad inclosed a certain tract of public land of tbe United States. *297Before that time be bad filed in tbe proper land office bis declaration of intention to pre-empt a piece of public land, including bis inclosure and other lands not tben inclosed by bim, but wbicb were tben in tbe possession of other parties. On that day, judgment was docketed against bim, in tbe County Court of Lassen County — the lands being located in that county — in favor of tbe defendant in this suit, who afterwards purchased tbe land at Sheriff’s sale, bad in pursuance of said judgment. Tbe defendant, at tbe proper time — tbe premises not having been redeemed — received a Sheriff’s deed for tbe property, and, thereafter, brought bis action of ejectment and recovered tbe property, and put tbe plaintiff in this action out.

This plaintiff, tben being out of possession, abandoned bis right to pre-empt, and going upon another portion of tbe same subdivision of public lands, outside of bis former possessions, again made bis declaration of intention to preempt tbe whole tract, claiming that be bad made a new settlement, and claiming tbe right to pre-empt by virtue of such new settlement. On tbe 22d of June, 1869, plaintiff made tbe proper proof and payment, and received from tbe proper officers tbe certificate of purchase of tbe whole tract. Before receiving bis certificate, however, be caused citation to be issued from tbe Land Office and served upon tbe defendant, commanding bim to appear at tbe Land Office on a day stated and make proof of bis claim, ox it would be awarded to tbe plaintiff. Tbe defendant failed to appear or to contest the plaintiff’s right, and never resided upon or assumed tbe possession or occupancy of any portion of tbe land in controversy. Plaintiff was in tbe actual possession of tbe whole tract at tbe time this suit was commenced.

This action was brought to quiet tbe plaintiff’s title. Tbe above is tbe substance of tbe facts found by tbe Court, which, upon tbe findings, rendered judgment for tbe plaintiff. This appeal is taken from tbe judgment,

Tbe defendant contends: First — That plaintiff being in possession as owner, and having declared bis intention to pre-empt at tbe time of tbe execution of tbe Sheriff’s deed *298and the rendition of the judgment in ejectment, stood in the relation of trustee to the defendant as to any after acquired title, and that such title would inure to the benefit of defendant. Second — The judgment in ejectment operated as an equitable estoppel *in pais,*and precludes the plaintiff from maintaining this suit, and from asserting title in him'self.

At the time of the sale under the judgment against Montgomery, and the execution of the Sheriff’s deed to "Whiting, Montgomery was not the owner of the land nor of any interest in it. He had no title whatever, inchoate or otherwise. By his settlement and filing his declaratory statement, he obtainéd the right to purchase at a fixed rate, when -the lands should be sold by the United States, provided he complied with the provisions of the laws of the United States in regard to pre-emption rights; and also provided the Government of the United States did not withdraw the lands from the operation and effect of the preemption laws, before he had actually entered and paid for it. *(Hutton*v. *Frisbie,*37 Cal. 475; *Whitney*v. *Frisbie,*9 Wall. 187.) Montgomery was not in possession as owner, but as a pre-emptor. He entered and settled upon the land in pursuance of the laws of the United States, which authorized him to take possession, and made his doing so a condition precedent to his becoming a preferred purchaser. He had no title to connect with that of the United States; he was there merely as an applicant for the privilege of purchasing. The Sheriff’s deed conveyed to Whiting nothing more than the possessory right of Montgomery, the right, title, and interest in the land, which he then had. After the sale and conveyance there was no relation of contract between the parties. Montgomery was not bound to proceed and acquire the title for Whiting, and he was not bound by a warranty or covenant which would prevent his acquiring title himself from an independent source, nor was there any relation between him and Whiting which should make it inequitable for him to do so. All relations between the parties were dissolved upon the execution of the conveyance, without warranty. *299
      *(Clark*v. *Baker,*14 Cal., 632.) Suppose tbe land bad not been pre-empted by any one, but at tbe public sale plaintiff bad become tbe purchaser, would it be contended that tbe title thus acquired would inure to tbe benefit of Whiting ? We do not understand that Montgomery obtained tbe title, or was enabled to pre-empt by reason of any settlement prior to tbe Sheriff’s sale. If, at that time, be bad, as seems to be supposed by appellant, an inchoate right, which afterward ripened into a title, there would be some plausibility in'tbe position of tbe defendant. But as we understand tbe findings of fact, Montgomery was allowed to preempt by reason of a settlement made after be bad been ousted from tbe land under Whiting’s judgment.

We do not understand bow tbe judgment in ejectment can be claimed to operate as an equitable estoppel *in pais.*A man is said to be estopped when be has done some act which tbe policy of tbe law will not permit him to gainsay or deny. We see no element of an estoppel in this matter of tbe judgment. Tbe judgment was not a bar to any title acquired by Montgomery after its rendition.

Tbe judgment is affirmed.