Rogers v. De Cambra

VAN DYKE,J.

—Upon the hearing of this case in Department One, the following opinion was therein rendered, to wit: —

[503]

“This is an action in ejectment. In addition to the answers of defendants, the defendant Manuel S. De Cambra filed a cross-complaint. A demurrer to this cross-complaint having been sustained, the action was tried upon the complaint and the answers thereto in the nature of denials. The plaintiffs offered in evidence a patent from the government of the United States, running to Enos J. Rogers, his heirs and.assigns forever, conveying the property described in the complaint; also, testimony showing that plaintiffs are the heirs of the said patentee, who had previously died, Hanna Rogers being the widow, and Frank J. Rogers the son, of said deceased. Defendants De Cambra declined to submit any evidence on their part, but admitted possession of ninety acres of the land described in the complaint.

“ The main point made on the part of the appellants is, that the court below erred in sustaining the demurrer to the cross-complaint. The cross-complaint was quite voluminous, covering twenty-three pages of the printed transcript, but the substance of it may be very much condensed. It is alleged that Enos J. Rogers,

alias

Ignatio Farpelha, in 1871 bought an undivided half interest in a tract of land of 450 acres from the appellant Manuel S. De Cambra, which tract at the time was claimed to be within a private Mexican grant; that by the final survey of said grant in 1878, a portion thereof, including the premises in controversy, was restored to the United States as public lands; that it was agreed between said Rogers and the said De Cambra that they should make application respectively for certain subdivisions thereof as public lands according to the United States survey; that said De Cambra could not read or write; that in filing their notices of pre-emption claims, Rogers, who, it is alleged, acted for both, filed on the claim which it had formerly been agreed that De Cambra should have. But it is further alleged that after De Cambra discovered the mistake in 1883, he retained counsel, and had a true pre-emption notice and claim prepared and filed for the portion of the claim which it is alleged he was entitled to under the agreement; and that Hanna Rogers, the widow of said Enos J. Rogers, who had in the mean time died, also filed a pre-emption notice; that a contest came on between the plaintiffs, as heirs of said Enos J. Rogers, and the defendant Manuel S. De Cambra, before the registrar and receiver of the United States land-office, in April, 1884, and thereafter, in