MICHAEL LYNCH v. FRANK BRIGHAM, CURTIS BRIGHAM and ESTHER BRIGHAM, 51 Cal. 491

By the Court, Wallace, C. J.: The demurrer to the equitable defense was sustained, and the propriety of the ruling of the court below in this respect is the only question presented for our consideration. It is alleged in that defense that in the contest before the register and receiver, Hall, the plaintiff’s grantor, produced evidence to the purport and effect that the defendant, Curtis Brigham, left land of his own to settle upon the quarter

section in controversy, and “ that said evidence was wholly false, and that the said Hall and Abling well knew at tho time that they produced said evidence before the said register and receiver that the same was wholly false.” It is further alleged in the said .equitable defense of the defendant, Curtis Brigham, that the said register and receiver, and upon an appeal taken, the Commissioner of the General Land Office, were imposed upon and deceived by said false evidence, and were thereby led to award the land to Hall, instead of the defendant, Curtis Brigham.

Under the settled rule governing controversies of this character, an equitable defense setting forth that the decision of the Land Department ivas procured by willfully false testimony, fraudulently adduced by the successful party, would entitle the defendant to be relieved. Judgment reversed and cause remanded, with directions to overrule the demurrer to the equitable defense.