JAMES B. DAMRELL, Respondent, v. HENRICH MEYER, Appellant, 40 Cal. 166

Rhodes, C. J., delivered the opinion of the Court, Crockett, J., Temple, J., and Wallace, J., concurring: Tbe cross-complaint of tbe defendant, does not state facts sufficient to constitute a cause of action.

Tbe defendant baying settled on tbe land adjoining tbe land in controversy, and claiming and cultivating tbe land in controversy, as be alleges, in 1850, and tbe township plat having been filed in tbe local Land Office in July, 1858, it became bis duty, if be desired to avail himself of tbe preemption laws authorizing a settlement on unsurveved land, to file bis declaratory statement within three months after tbe filing of tbe township plat. (Megerle v.

Ashe, 33 Cal., 30, and see decision of tbe Commissioner of tbe General Land Office, February 21, 1868.) There is no pretense, that tbe plaintiff prevented tbe defendant from filing bis declaratory statement at that time, nor after tbe land was relieved from tbe suspension in November, 1861 — even if bis filing after that time would have been of any avail to him.

No law has been called to our attention, which will enable a person, who has neither filed bis declaratory statement, nor been prevented from so doing by tbe fraud of another person, to avail himself of the benefits of any entry made by such other person, and a patent issued in pursuance thereof. It is very clear, that an agreement between two persons, by which it is stipulated that if either shall succeed in establishing a pre-emption claim to a tract of land, he shall divide the land with tbe other, will not be enforced; for it is in direct contravention of tbe express ■ provision of the Pre-emption Act.

Judgment affirmed. Sprague, J., expressed no opinion.