Botwin v. Wise

[466]

GOSBEY, J.,

pro tem

Appeal by defendants from a judgment in plaintiff’s favor. The action was submitted to the trial court and to this court upon agreed and stipulated facts as follows:

On the twentieth day of March, 1913, the defendant, Nathan Wise, was the entryman upon a homestead of the United States government consisting of 160 acres, located in the county of Los Angeles, state of California, and particularly described as follows, to wit: The northwest one-quarter of section 5, township 1 south, range 18 west, S. B. M. Said Nathan Wise (to be designated’ hereinafter as defendant) as such entryman then and there was and continued to be in possession of said property until the twenty-fourth day of April, 1916, when a patent was issued to defendant for said land by the government of the United States; that ever since the last-mentioned date said defendant continued to be the owner in fee of said property. On said twentieth day of March, 1913, plaintiff made and entered into a written agreement with said defendant and said Alfora Wise in substance as follows: That whereas defendant had been in possession of said property under an entry of homestead from the United States government, had made certain improvements thereon, and was about to commute the said homestead and receive patent thereon; in consideration of the sum of one thousand one hundred dollars paid by plaintiff to defendant, the receipt whereof was acknowledged, said defendant agreed that when he had completed the commutation with the said United States government and had received his final receipt therefor, he would grant to plaintiff an undivided one-half interest in and to said property together with the improvements thereon. It was further provided in said agreement that should defendant fail to procure or receive said patent the parties thereto would make a settlement, which has no concern in this appeal and need not be considered.

On the seventeenth day of February, 1913, defendant offered commutation proof in the land office of the United States at Los Angeles, California, of his homestead entry of the above-described property; on the seventeenth day of January, 1916, he completed said commutation, proof, and on the twenty-fourth day of April, 1916, the United States