SAMUEL BURRELL, Respondent, v. ROBERT A. HAW, Appellant, 40 Cal. 373

Temple, J., delivered tbe opinion of tbe Court* We tbink tbe demurrer in tbis case ought to have been sustained. Tbe action was brought to obtain a decree declaring that tbe defendant — who bad obtained a patent from tbe United States — held tbe same in trust for tbe plaintiff, and that be be compelled to convey tbe same to plaintiff.

Tbe ground of tbe action is, that the land officers were imposed upon by misrepresentations and fraudulent practices of tbe defendant, and thereby induced to issue tbe'patent to him, instead of tbe plaintiff, who was a contestant before tbe Begister and Receiver for tbe right to pre-empt. The‘first point on tbe demurrer is, that tbe complaint fails to show that the plaintiff was in a condition to pre-empt, because it does not aver that at tbe time be filed bis declaratory statement tbe plat of land bad been returned to tbe Land Office.

Tbe complaint avers that plaintiff made bis declaratory statement on tbe 25th of December, A. D. 1855, and put tbe same into tbe Post Office at Eureka, properly addressed to tbe Register at Marysville. It is not averred that tbis was received, or filed in that office at Marysville. It is then averred that in December, 1857, be discovered that tbis statement was not on file at tbe Register’s office, and another was then made and sent in tbe same manner, which was filed in December, 1857. There is no averment as to tbe time tbe survey was made, or plat returned.

Of course tbe foundation of plaintiff’s claim is, that be was entitled to pre-empt tbe land, and, but for tbe fraud practiced by tbe defendant, be would have been able to obtain tbe patent himself. He must show all tbe conditions necessary to enable him to pre-empt, before be can call in question tbe proceedings through which tbe defendant obtained bis patent. (Page v. Hobbs, 27 Cal. 483; People v. Jackson, 24 Cal. 630; Megerle v. Ashe, 33 Cal. 74.) Tbe findings in the case are also defective.

The proper officers in the Land Offices of the United States were required to ascertain whether the parties possessed the proper qualifications to entitle them to to pre-empt the land, and there can be no doubt that their decision upon questions arising as to such qualifications is binding upon the'parties, unless some question of fraud or trust intervenes. The question of fraud, therefore, was an affirmative issue to be made out * by the plaintiff. The fact that the defendant made a declaration of his intention to become a citizen, is but evidence tending to prove that at the time he was not a citizen.

It is not the ultimate fact to be proven, and that fact of itself would not necessarily prove fraud. The finding upon this subject is clearly to the effect that the plaintiff had failed to ■ make out his case. So, the finding in regard to the execution of the deed to James Clark, nothing found which is necessarily implies that there was any suppression of truth, or any fraud whatever practiced by the defendant. All the facts concerning this deed may have been before the proper officers of the United States, and they may have found that no sale was consummated or intended hy it.

Judgment reversed and cause remanded, with directions to sustain the demurrer to the complaint.