THOMAS MONTGOMERY, Respondent v. L. P. WHITING, Appellant, 40 Cal. 294

Temple, J., delivered the opinion of tbe Court: In November, 1866, plaintiff was in possession of and bad inclosed a certain tract of public land of tbe United States. Before that time be bad filed in tbe proper land office bis declaration of intention to pre-empt a piece of public land, including bis inclosure and other lands not tben inclosed by bim, but wbicb were tben in tbe possession of other parties.

On that day, judgment was docketed against bim, in tbe County Court of Lassen County — the lands being located in that county — in favor of tbe defendant in this suit, who afterwards purchased tbe land at Sheriff’s sale, bad in pursuance of said judgment. Tbe defendant, at tbe proper time — tbe premises not having been redeemed — received a Sheriff’s deed for tbe property, and, thereafter, brought bis action of ejectment and recovered tbe property, and put tbe plaintiff in this action out.

This plaintiff, tben being out of possession, abandoned bis right to pre-empt, and going upon another portion of tbe same subdivision of public lands, outside of bis former possessions, again made bis declaration of intention to preempt tbe whole tract, claiming that be bad made a new settlement, and claiming tbe right to pre-empt by virtue of such new settlement. On tbe 22d of June, 1869, plaintiff made tbe proper proof and payment, and received from tbe proper officers tbe certificate of purchase of tbe whole tract.

Before receiving bis certificate, however, be caused citation to be issued from tbe Land Office and served upon tbe defendant, commanding bim to appear at tbe Land Office on a day stated and make proof of bis claim, ox it would be awarded to tbe plaintiff. Tbe defendant failed to appear or to contest the plaintiff’s right, and never resided upon or assumed tbe possession or occupancy of any portion of tbe land in controversy. Plaintiff was in tbe actual possession of tbe whole tract at tbe time this suit was commenced. This action was brought to quiet tbe plaintiff’s title.

Tbe above is tbe substance of tbe facts found by tbe Court, which, upon tbe findings, rendered judgment for tbe plaintiff. This appeal is taken from tbe judgment, Tbe defendant contends: First — That plaintiff being in possession as owner, and having declared bis intention to pre-empt at tbe time of tbe execution of tbe Sheriff’s deed and the rendition of the judgment in ejectment, stood in the relation of trustee to the defendant as to any after acquired title, and that such title would inure to the benefit of defendant.

Second — The judgment in ejectment operated as an equitable estoppel in pais, and precludes the plaintiff from maintaining this suit, and from asserting title in him'self. At the time of the sale under the judgment against Montgomery, and the execution of the Sheriff’s deed to "Whiting, Montgomery was not the owner of the land nor of any interest in it. He had no title whatever, inchoate or otherwise.

By his settlement and filing his declaratory statement, he obtainéd the right to purchase at a fixed rate, when -the lands should be sold by the United States, provided he complied with the provisions of the laws of the United States in regard to pre-emption rights; and also provided the Government of the United States did not withdraw the lands from the operation and effect of the preemption laws, before he had actually entered and paid for it. (Hutton v. Frisbie, 37 Cal. 475; Whitney v. Frisbie, 9 Wall. 187.) Montgomery was not in possession as owner, but as a pre-emptor.

He entered and settled upon the land in pursuance of the laws of the United States, which authorized him to take possession, and made his doing so a condition precedent to his becoming a preferred purchaser. He had no title to connect with that of the United States; he was there merely as an applicant for the privilege of purchasing. The Sheriff’s deed conveyed to Whiting nothing more than the possessory right of Montgomery, the right, title, and interest in the land, which he then had. After the sale and conveyance there was no relation of contract between the parties.

Montgomery was not bound to proceed and acquire the title for Whiting, and he was not bound by a warranty or covenant which would prevent his acquiring title himself from an independent source, nor was there any relation between him and Whiting which should make it inequitable for him to do so. All relations between the parties were dissolved upon the execution of the conveyance, without warranty. (Clark v.

Baker, 14 Cal., 632.) Suppose tbe land bad not been pre-empted by any one, but at tbe public sale plaintiff bad become tbe purchaser, would it be contended that tbe title thus acquired would inure to tbe benefit of Whiting ? We do not understand that Montgomery obtained tbe title, or was enabled to pre-empt by reason of any settlement prior to tbe Sheriff’s sale. If, at that time, be bad, as seems to be supposed by appellant, an inchoate right, which afterward ripened into a title, there would be some plausibility in'tbe position of tbe defendant.

But as we understand tbe findings of fact, Montgomery was allowed to preempt by reason of a settlement made after be bad been ousted from tbe land under Whiting’s judgment. We do not understand bow tbe judgment in ejectment can be claimed to operate as an equitable estoppel in pais. A man is said to be estopped when be has done some act which tbe policy of tbe law will not permit him to gainsay or deny. We see no element of an estoppel in this matter of tbe judgment. Tbe judgment was not a bar to any title acquired by Montgomery after its rendition. Tbe judgment is affirmed.