EBENEZER WORMOUTH, Respondent, v. PETER GARDNER et al., Appellants, 105 Cal. 149

De Haven, J. Action to recover possession of a tract of land containing forty-six and twenty-six hundredths acres. The case was tried by the court without a jury, and the issues of fact being found in favor of the defendants, judgment was thereupon rendered against the plaintiff. Subsequently, the plaintiff's motion for a new trial was granted, and from this order the defendants have appealed. 1. The motion for a new trial was properly granted.

The plaintiff’s right to the possession of the land in controversy was based upon a United States homestead entry, made May 20, 1881, and a receipt given by the receiver of the proper United States land-office, on his making full cash payment for the land July 22, 1892. The defendants are not in privity with the United States, and there was evidence tending to show that plaintiff was residing on the land embraced in his homestead entry when such entry was made, and continued to reside thereon, and to comply in good faith with the United States homestead law until final payment for the land.

This was sufficient to entitle him to recover under

section 2 of the act of March 23, 1874, “for the protection of pre-emption and homestead claimants” (Stats. 1873-74, p. 543), notwithstanding the fact that the defendants and their predecessors were at the date of plaintiff’s homestead entry in the adverse possession of so much of the land covered by such entry as is involved in this action, and have at all times since continued in such adverse possession. 2.

On the other hand, if it be conceded, as claimed by appellants (and as to whether the fact is so or not there appears to be some confusion in the evidence), that the house in which plaintiff was living at the date of the homestead entry was not upon the land so entered, but was a short distance therefrom, and within the boundaries of the Mexican grant known as the Rancho Corte Madera del Presidio, still the court was justified in finding from the testimony that plaintiff believed at the time of the entry that his house was outside of the boundaries of the grant mentioned, and upon the land entered by him as a homestead, and the mistake in the location of his house, if it was one, was corrected by plaintiff by the removal of his actual residence to the land covered by such entry, as soon as the true boundaries of the adjoining rancho were discovered.

Under these circumstances the original homestead entry was valid under the laws of the United States (Case of Higgins, 1 Copp’s Public Land Laws and Decisions, 1882, p. 406; 3 Opinions of Attorney General, 312, Opinion of March 10, 1838; 1 Lester’s Land Laws, 385), arid the plaintiff’s right to the possession of the land embraced therein, as against trespassers and persons having no superior right, is clearly within the spirit, if not the strict letter, of

section 2 of the act of March 23, 1874, before cited. Upon the whole, we cannot say that the superior court abused its discretion in granting the motion for a new trial; and its order must be affirmed. Order affirmed. McFarland, J., and Fitzgerald, J., concurred.