Bond v. Walters

LENNON, P. J.

These suits were brought to have a trust declared in certain lands. The complaints are identical in every respect except the names of the plaintiffs and the description of the real property involved; and from a stipulation contained in the transcript it appears that it is agreed that the decision in one case shall he determinative of the other.

Plaintiffs have appealed from the judgment of dismissal entered by the trial court after the entry of the default of the plaintiffs, which in each instance was for failure on their part to amend the complaint after the sustaining of general demurrers to the same.

In the complaint in the Bond case plaintiff seeks to obtain a decree, adjudging that the defendant, to whom a United States patent for the lands described in the complaint was issued, holds the title to such land in trust for the plaintiff, and prays for a decree directing the defendant to execute a .proper conveyance to him of the land in question.

While it is true that courts of equity will entertain proceedings to decree that persons who have received and hold patents to land hold the same in trust for the true owner, a plaintiff in such action must show by his complaint that he is entitled to the relief sought; that he occupies such a status as entitles him to control the legal title; that the officers who awarded the land to another, to whom the title was issued pursuant to the judgment, were imposed upon and deceived

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by the fraudulent practices of him in whose favor the judgment was given. Such facts must be distinctly alleged and proven

(Kentfield

v.

Hayes,

57 Cal.

409 Aurreocoechea

v.

Sinclair,

60 Cal. 532). No such allegations are here presented. The complaint alleges, among other things, that in a contest for the lands between plaintiff and defendant filed before the land office, and at a hearing had before the Land Department, the register and receiver of the United States land office filed their decision, holding that the defendant herein had the legal title to the land in question; that after the entry of such opinion plaintiff appealed to the general land office, where the action of the register and receiver was affirmed; that thereafter the plaintiff appealed to the Secretary of the Interior, where such action was again affirmed, and the homestead entry of plaintiff was canceled as to the lands in question because of the prior right of defendant thereto and a patent issued to her. As pointed out by defendant, there is no allegation in the complaint that plaintiff in his contest before the Land Department introduced any evidence whatever showing that he had complied with the rules and regulations of the Department of the Interior entitling him to the lands in question but for the adverse claim and contest instituted by the defendant. Nor does the plaintiff in his complaint claim that defendant practiced any fraud or misrepresentation on the government in her contest nor in any of the proceedings had by her in obtaining the patent to the lands in question. The allegation that defendant was not entitled to receive the land does not suffice. Plaintiff must go further and show that 'he occupied such a status as entitled him to control the legal title