No. *2,562.*

#### JAMES B. DAMRELL, Respondent, *v.*HENRICH MEYER, Appellant.

Pbe-emption op Unsubveyed Lands. — Declaeatoby Statement. — A party who desires to avail himself of the pre-emption laws, *authorizing*a settlement on unsurveyed land, must file his declaratory statement -within. three months after the filing of the township plat.

Idem. — A person who has neither filed his declaratory statement, nor been prevented from so doing by the fraud of another person, cannot avail himself of the benefits of an entry made by such other person and a patent issued in pursuance thereof.

Idem. — Agbeement to Divide Void tjndeb Pbe-emption Act. — An agreement between two persons, to the effect that if either shall succeed in establishing a pre-emption claim to a tract of land he shall divide the land with the other, is in contravention of the Pre-emption Act and cannot be enforced.

Appeal from tbe District Court of tbe Fifth District, San Joaquin County.

Action of ejectment to recover possession of tbe southerly-forty-seven acres of tbe west half of tbe southeast quarter *167of Section 18, (T. 2 N. E. 8 E. ) in tbe County of San Joaquin.

Tbe answer of defendant contains a cross-complaint in wbicb be alleges, that being a qualified pre-emptor in 1850, be entered upon and settled tbe land adjoining tbe land in controversy; tbat be bas ever since claimed and cultivated tbe land in controversy; tbat plaintiff bas used and cultivated tbe remaining tbirty-tbree acres of tbe west balf of tbe southeast quarter of Section 18 since 1856; tbat in consequence of an understanding and agreement between plaintiff and defendant tbat eacb party was to bave and take title to tbe said part of tbe west balf of tbe southeast quarter of Section 18, in their possession respectively, defendant suffered plaintiff in 1861, without opposition or contest, to go on and acquire title to tbe entire west balf of said southeast quarter, believing tbat plaintiff would, whenever be acquired title, and in conformity with tbe said understanding and agreement, convey tbe title to tbat part of tbe land in defendant’s possession to defendant on defendant’s reimbursing to plaintiff the costs and expenses and purchase money of such part. Tbat after plaintiff bad procured a certificate of purchase for tbe said west balf of tbe southeast quarter of Section 18, be refused .to recognize and abide by the understanding and agreement aforesaid, and claimed tbe right to procure and bold tbe title to said land and every part thereof, to tbe entire exclusion of any claim or right of defendant to said forty-seven acres in defendant’s possession, and tbat a patent bas been issued to plaintiff for said land by means of wbicb tbe plaintiff, by bis action at law, threatens to eject defendant from said premises.

Wherefore, tbe defendant prays tbe Court as a Court of equity, for a decree or judgment declaring tbat plaintiff bolds tbe legal title to said forty-seven acres in trust for defendant, and, tbat on payment to him by defendant of tbe costs, expenses and purchase money to be ascertained by said decree, plaintiff shall convey the legal title to said premises to defendant; and tbat plaintiff be enjoined and *168restrained from prosecuting further Ms said action of ejectment, etc.

Plaintiff demurred to defendant’s cross-complaint, and tbe demurrer was overruled by tbe Court. On tbe trial, after plaintiff bad closed bis testimony, tbe defendant offered to prove all tbe facts set out in bis cross-complaint, and wbicb were put in issue by plaintiff’s denial thereof. Plaintiff objected, and tbe objection was sustained by tbe Court.

Judgment was for plaintiff, and defendant appealed.

Tbe other facts are stated in tbe opinion.

*Sail & Montgomery,*for Appellant.

A Court of equity is tbe only tribunal empowered to restore to tbe defendant what be has lost by tbe deceit and fraudulent contrivances of tbe plaintiff. All tbe circumstances may be considered, and a decree made with such equitable conditions annexed as shall be deemed proper, without avoiding tbe grant by tbe patent. *(Polk’s Lessee*v. *Wendal et al.*9 Cranch. E. 87.)

And this is a proper case for tbe interposition of tbe Court. It is true that tbe contract between these parties was contrary to tbe policy and provisions of tbe pre-emption law of September 4, 1841, (sec. 13), and tbe fact appearing to tbe Department, plaintiff could not have been permitted to make entry. Aside from this prohibition, however, there was nothing unlawful in tbe promise of plaintiff to convey title, when be received it, to defendant for a part of tbe land, on defendant paying him therefor what tbe part bad cost. It was an agreement to sell for a stipulated price— tbe payment and conveyance to be made -when tbe seller could give title. Tbe contract does not avoid tbe patent. Tbe only consequence is that wbicb the Act affixes. Tbe agreement was in part performed immediately after it was made. Thenceforth, each party held possession 'of bis part under and subject to its terms. Eelying upon tbe supposed security it afforded, tbe defendant waived bis superior incipient right and commenced another claim to only forty acres.

*169Tbe defendant faithfully adhered to his bargain; and if the Court cannot interfere he will be deprived of the possession of the part held by him, and to have become his by title, although he was only in equal fault with the plaintiff in the act of entering into the forbidden engagement. But assuming (as we have a right for the present purpose,) that the alleged facts are capable of proof, the plaintiff is doubly culpable by reason of his having taken the oath preliminary to entry required by Section 13 of the Pre-emption Act.

On the other hand, the plaintiff has received all the benefits of the contract. He retains his portion in possession, and having caused defendant to voluntarily withdraw from conflict, he consummates his title, and demands that he shall be allowed to appropriate all the land to himself. To allow this to be accomplished, would seem to be a judicial reward for a two-fold breach — of a private engagement and of public law. To prevent this result, equity should treat the defendant as still clothed with his original elder and better incipient right, and give him the benefit of an application of those principles which protect it against loss by the fraud of an adverse claimant, who, by means of such fraud, overreaches it with the legal title. *(Brush*v. *Ware,*15 Pet. 93; Pry on Specific Performance of Contracts, secs. 204, 309-313; *Combs*v. *Jelly,*28 Cal. 501-2; *Sillies*v. *United States,*4 Wal. U. S. 232; *Truesdell*v. *Galloway et al.*6 Mo. 605; *Bird et al.*v. *Ward et al.*1 Id. top page 281; *Burn-ley*v. *Jeffersonville,*3 McLean, 336; *Huntsáker*v. *Ciarle,*12 Mo. 337; *Grove’s Heirs*v. *Fulsome,*16 Id. 554; *Smithy. Stephenson,*7 Id.; 2 Story’s Eq. Juris, sec. 896; *Bussell*v. *Beebe,*2 Hemp. 704.)

The proof of the fraud should be heard; and for this reason the judgment ought to be reversed.

*J. H. Budd,*for Respondent.

Rhodes, C. J.,

delivered the opinion of the Court, Crockett, J., Temple, J., and Wallace, J., concurring:

*170Tbe cross-complaint of tbe defendant, does not state facts sufficient to constitute a cause of action. Tbe defendant baying settled on tbe land adjoining tbe land in controversy, and claiming and cultivating tbe land in controversy, as be alleges, in 1850, and tbe township plat having been filed in tbe local Land Office in July, 1858, it became bis duty, if be desired to avail himself of tbe preemption laws authorizing a settlement on unsurveved land, to file bis declaratory statement within three months after tbe filing of tbe township plat. *(Megerle*v. *Ashe,*33 Cal., 30, and see decision of tbe Commissioner of tbe General Land Office, February 21, 1868.) There is no pretense, that tbe plaintiff prevented tbe defendant from filing bis declaratory statement at that time, nor after tbe land was relieved from tbe suspension in November, 1861 — even if bis filing after that time would have been of any avail to him. No law has been called to our attention, which will enable a person, who has neither filed bis declaratory statement, nor been prevented from so doing by tbe fraud of another person, to avail himself of the benefits of any entry made by such other person, and a patent issued in pursuance thereof.

It is very clear, that an agreement between two persons, by which it is stipulated that if either shall succeed in establishing a pre-emption claim to a tract of land, he shall divide the land with tbe other, will not be enforced; for it is in direct contravention of tbe express ■ provision of the Pre-emption Act.

Judgment affirmed.

Sprague, J., expressed no opinion.