Peabody v. Prince

Works, J. The complaint is ejectment in the usual form. The defendant pleaded, by way of cross-complaint, in substance, that the.lands in controversy were properly listed, and on or about .March 1, 1869, relinquished and certified over to the state of California by the United States as lieu lands; that on the twenty-first day of March, 1870, the plaintiff .made application to purchase the same from the state,-which application was approved by the surveyor-general February 12,1872; that plaintiff paid to the county treasurer of the proper county the amount required by law to be paid on the land, but did not pay the three dollars required to be paid for the certificate of purchase; that -the surveyor-general had no authority to accept any application for the purchase of said lands, because there'was no law then in force authorizing the sale thereof; that on the fourteenth day of May, 1878, one Benjamin made application to purchase said land, and his application was approved July 27,1878; that on the 30th of June, 1879, the plaintiff filed his protest, and demanded that the contest between Benjamin and himself be certified to -the proper court for trial, which was done on said day; 'that on August 28, 1879, the plaintiff brought his action against Benjamin to have said contest adjudicated and determined, to which action Benjamin appeared and answered.

The cross-complaint, then proceeds to allege such facts as were necessary to show that said lands were vacant and open to settlement and purchase; that on the tenth day of August, 1882, the defendant made and filed his application to purchase the land,.stating therein the facts required by law; .that on the twenty-seventh day of October, 1882, he filed in the office of the surveyor-general the necessary proof that he was an actual settler, in good faith, on said land, and had resided thereon continu[514]ously; that in said month of October he filed his protest against any evidence of title being issued to either the plaintiff or said Benjamin, which protest the surveyor-general refused to recognize, and refused to certify his said protest to any court.

It is further ■ alleged that the plaintiff, well knowing that his application was invalid, fraudulently confederated with said Benjamin, with the intent to defraud the defendant out of his rights, and in pursuance of that object paid to said Benjamin a sum of money, in consideration of which Benjamin executed to him a conveyance of said land, and withdrew his answer in the contest pending, between them, and stipulated that plaintiff should be allowed to proceed in said action, without any defense thereto; that plaintiff failed to record said deed and concealed the same; that on the twelfth day of April, 1884, the plaintiff presented said stipulation to the court and procured a judgment by default, and without offering any proof, procured a judgment entitling him to a patent for the land upon payment of the balance of the purchase-money, and thereafter procured a patent vesting the legal title to said property in him; that neither the plaintiff nor Benjamin were ever in possession of said real estate, or any part of it; that plaintiff was not entitled to judgment in his favor in said contest under the allegations of his complaint, and only procured the same through said fraud and conspiracy, and that by said "fraud, the defendant was prevented from exercising the right given him by law of purchasing and acquiring the legal title to said land.