Sanders v. Dutcher

KERRIGAN, J.

This is an appeal from a judgment. The issue framed 'by the pleadings, and a full discussion thereof, may be found in the opinion filed on a former appeal taken in this case (168 Cal. 353). The complaint was in ejectment, to which the defendant filed an answer and

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cross-complaint. In the latter he alleged that one Orpha C. Johnson had made an entry on the lands in question for the purpose of acquiring title to the same under the desert land law of 1891; that thereafter she complied with the terms of said act and made final proof and payment, subsequent to which she sold, assigned, and transferred all her right, title, and interest in the land to the defendant, Gordon L. Dutcher, who entered into possession thereof under the conveyance, and has since expended large sums of money upon the land in the further reclamation and improvement thereof; that thereafter Louis N. Sanders, the plaintiff, instituted a contest against the Johnson entry, alleging that the land had not been reclaimed, irrigated, or improved as required by law; that said contest was the result of a conspiracy between the plaintiff and one Jordan to deprive the defendant of the land; that said contest came on for hearing at the land office, and although the plaintiff introduced no competent evidence to sustain the allegations of his affidavit, nevertheless the officers of the Land Department held in favor of said contestant on the theory that the entry made by Orpha C. Johnson was invalid, for the reason that she had not personally done the reclamation work required by law, and also that her final proof was made under and after a contract of sale, said contract being contrary to the policy of the law. Under these allegations it was claimed that Sanders stood as trustee for the defendant of the land, and that a court of equity would compel him to convey the land to the defendant. The supreme court, upon the former appeal above alluded to, held that when the officers of the Land Department err in a matter of law in such a way as to deprive a person, who has a valid claim under the laws of the United States, of rights vested in him, their decisions may be reviewed in a proper proceeding, and that a court of equity in such a proceeding will grant appropriate relief to the injured party against the one obtaining title as a result of such erroneous decision. That court also held that under the provisions of the desert land law an entry could be assigned, and that it was not necessary for the entryman to personally do the work required by the terms of the act; that therefore it appeared from the allegations of the cross-complaint (deemed admitted to be true upon a motion for judgment on the