upon the ground that the respondent had an adequate remedy at law. If appellant had not answered, and the case had come here upon demurrer upon that ground, this court would have been inclined to sustain it; but by answering the complaint the appellant has submitted. to the jurisdiction of the court, and it would not, under the circumstances, feel warranted in dismissing the suit. Besides, the decision only involves a question of costs, which this court has power to reg ulate and direct payment of as the equitable circumstances require. A decree will therefore be entered in favor of the respondent and against the appellant for the relief demanded in the complaint; that neither party recover costs upon appeal or in circuit court; and that the respondent be directed to pay the entire disbursements of both courts that are properly taxable as such, when duly taxed; and that the decree appealed from in other respects be affirmed.

(11 Or. 501)

RICHARDS v. SNYDER and another.

Filed February 19, 1885.

1. SPECIFIC PERFORMANCE-UNITED STATES LAND LAWS-CONTRACT TO CONVEY BY PRE-EMPTOR BEFORE ISSUE OF PATENT.

The effect of the United States land laws is not to invalidate a contract made by a bona fide settler before the issue of a patent to sell the land after such patent shall have been issued.

2. SAME-PARTY CANNOT TAKE ADVANTAGE OF HIS OWN WRONG.

The question as to the right of a pre-emptor to contract to sell the land embraced in his claim before the issue of a patent, is one that concerns the United States and the purchaser under the contract. The pre-emptor, after executing such a contract, cannot defend his withholding the property by alleging that he had no right to make the contract.

3. SAME-PURCHASER IN GOOD FAITH-PAYMENT OF CONSIDERATION.

A party, in order to establish his character as a purchaser in good faith as against an outstanding equity, must plead and prove, independently of the recitals in his deed, that the purchase money was bona fide and actually paid. 4. SAME

EFFECT OF A QUITCLAIM DEED.

A purchaser under a quitclaim deed only cannot pretend to be a bona fide purchaser.

5. SAME-PURCHASE OF LAND-OCCUPANCY-NOTICE.

The fact that a party has occupied and farmed a piece of ground for several years since any occupation by a former occupant, who has since left the locality and remained away, is sufficient to put a would-be purchaser from the former occupant upon the inquiry as to who can convey the title.

Appeal from Umatilla county.

Lucian Everts, for appellant.

Turner, Bailey & Ballery, for respondents.

THAYER, J. This appeal is from a decree of the circuit court for the county of Umatilla, rendered in a suit brought by the appellant against the respondents, to enforce specific performance of a contract, and to compel the conveyance of a certain tract of land situated in said county of Umatilla, and described as lot 8, section 19, township 4 N., range 35 E. The appellant alleged in his complaint, in substance, that on the twenty-first day of March, 1873, the respondent

Snyder, then being owner of the land, agreed in writing to sell the same to appellant for $50, to be paid by the latter to the former as soon as the patent was received from the United States; that appellant thereupon entered upon and took possession of said land, and made valuable improvements thereon; that a patent for the land had been issued on the first day of March, 1877, to Snyder; that in 1882 he deeded it to the respondent Crews, and that Crews, prior to the time of the making the deed, had notice of appellant's right to it; that in August, 1882, Crews took forcible possession of the land, and has ever since remained in the possession thereof; that on the fourteenth day of October, 1882, appellant tendered to Snyder $100, and on the twenty-first of that month, same year, tendered a like sum to Crews, and demanded from each of them a conveyance of the land, and that they had each refused to make such conveyance.

The respondents specifically denied all the allegations of the complaint, but did not set forth any affirmative matters of defense. The case was referred to a referee, to take the testimony and report the facts and law thereon. The reference was ordered in June, 1884, and on the thirtieth of that month, same year, the referee, against the protest of the appellant, closed the testimony, and prepared and filed his report therein, whereby he found in favor of the respondents. The appellant's counsel, upon the filing of the report, filed a motion, supported by his affidavit, in which, among other things, he stated that he desired and expected to procure some record evidence from Union county, showing the time when the respondent Snyder made his final proof and payment for the land in controversy, and in which motion he prayed the court to set aside the said report for irregularity and misconduct upon the part of the said referee in not allowing him a sufficient time in which to procure the evidence. The respondents opposed the motion, and the court overruled it and confirmed the report of the referee, and gave the decree thereon from which the appeal is taken.

It appears from the evidence taken by the referee that the appellant, in 1866, bought from some occupant the improvements on the land in controversy; that he claimed to hold the possession of it with the remainder of his claim, which appears to have been a kind of squatter's right, until March, 1871, when the respondent Snyder came on, and erected a fence against the will of appellant, dividing the land from the balance of his claim. Subsequently the appellant received notice from the land-office at La Grande, Union county, that the plat had been filed in that office, and soon after he went and filed on the land, but at the same time he was informed by the officers of the land-office that Snyder had filed on it; that afterwards he heard that Snyder had made his final proof on the land, and thereupon he filed affidavits for a rehearing of the case, and forwarded them to the commissioner of the general land-office at Washington; that thereafter he was notified by the land-office at La Grande that

the office there had been advised by the commissioner at Washington that a rehearing of the case had been ordered before the La Grande office, and that the latter office had set the time for such rehearing for the twenty-first day of March, 1873. It further appears that on said twenty-first day of March, 1873, the appellant and Snyder were both at the La Grande office, and appellant claims that then and there he and Snyder entered into a written contract, which was made an exhibit in the case, and of which the following is a copy:

"EXHIBIT C, PLAINTIFF'S PROOFS.

"This agreement, made between D. A. Richards and W. A. Snyder as a settlement of all matters of differences between them up to this day, witnesseth, that said Richards is to pay to said Snyder the sum of fifty dollars in gold coin, and said Snyder is to execute and deliver to said Richards a good and sufficient deed or conveyance of lot 8, sec. 19-4-35 E., as soon as patent is received from United States, and said sum of $50 to be then due and payable; or if patent is issued therefor to said Richards, he is to deduct from said 850 whatever is paid to the United States for entrance money, and said Richards to be entitled to immediate possession of said lot 8, and both parties to do and perform every act necessary to carry out this agreement, and obtain title from the United States.

"Dated, March 21, 1873.

D. A. RICHARDS.
W. A. SNYDER."

The respondent Snyder, in his testimony, denied that he had ever executed any such contract. He admitted, upon cross-examination, that he was in La Grande on March 21, 1873; stated that he went there to look at some land plats, and attended the rehearing referred to; but the appellant testified positively to its execution by both parties. The following is the testimony given by appellant upon that point, viz.:

"Question 18. Did you attend at La Grande at the time specified in the letter filed in this case, and marked Exhibit A, Plaintiff's Proofs? Answer. Yes, sir. Q. 19. Did you have any conversation with Mr. Snyder at that place and time? and, if so, what was said? A. Yes; I had a conversation with him. We met here for the purpose of settling that contest, and he stated he would not contest for the land any further. After he made that statement I told him that if the patent issued to him, that as he had made his final proof, if he would make me a deed I would pay him the entrance money, or pay him $50 in cash, and he was to give me a good and sufficient deed. Then there was an agreement drawn up to that effect. After the agreement was made and signed I asked him if he thoroughly understood the contents of that agreement, and he said he did. I told him I wanted him-I wanted him to thoroughly understand it, so that there would be no further trouble about it. He said I need not have any fear about it; that he never went back on his word. Q. 20. After you had this conversation, in which Snyder stated that he would not contend for the land, was there a written agreement made and entered into between the parties? and, if so, state what you know about it. A. There was a written agreement entered into, drawn up by Col. Ellsworth, and signed by myself and Snyder. Q. 21. What was done with this agreement after it was entered into? A. It was placed in the hands of the receiver at the land-office at La Grande for safe-keeping, I suppose."

He then identified the agreement, and it was filed and marked as shown by the exhibit. Another witness, A. S. Thompson, testified

on behalf of the appellant that he was at La Grande on or about the twenty-first day of March, 1873; that he went there as a witness. for appellant in the land case; heard appellant and respondent Snyder and Col. Ellsworth talking about the land; that they settled it; that the way it was settled, appellant was to have the land, and said respondent was to have, he thought, $50; that the respondent was to give the appellant a title to it; that there was an agreement drawn up by Col. Ellsworth and read, and both signed it. They said it was such agreement; that witness could not read it; that Col. Ellsworth read it in that way. It appears also that the appellant began to occupy the land soon after, and while there is some question as to the extent and notoriety of his occupancy, yet there is no doubt but that he farmed the land for several years after the agreement is claimed to have been made, and raised several crops on it. It also appeared that the respondent Snyder had a tract of land adjoining the land in question, and that he sold it off and left the county long before the deed to respondent Crews was executed, though he claimed to have left an agent in charge of this land in question. We are of the opinion, from the weight of the evidence, that the said contract was executed by both appellant and Snyder. But it is further claimed by the respondents that the contract was in fraud of the pre-emption law of the United States; that it was a contract by a pre-emptor of United States government land to convey such land to appellant as soon as he obtained patent. The case has been here before upon the question of the sufficiency of the complaint, and this court then held that it could not be inferred that the contract which was set out in the complaint related to land which Snyder was endeavoring to obtain title to as a pre-emption or homestead claim; that there was nothing in the complaint or written contract suggesting such a thing. But it is further claimed by the counsel that the facts and evidence show that the contract was made before final proof, or the issuing of the certificate of final proof. This is the real point in the case, and we are unable to agree with counsel in the conclusion he assumes. He has argued with much force that in a suit for the specific performance of such a contract it should clearly appear that it was such a one as a court of equity would enforce, and that it should not be left to uncertainty as to whether or not it was a contract to sell a homestead or pre-emption claim before final entry; but the respondents are not in a position to urge that view in very good grace.

The referee closed the testimony while the appellant's counsel was soliciting a delay in order that he could produce record proof as to the status of the respondents' title when the contract was executed; and the court refused to open the door for the evidence upon that point, as it might have done and was urged to do by said counsel. It would have been much more satisfactory to this court had such proof been supplied, for then we would not have been compelled to spell out, from

scraps of testimony, the condition of the respondent's title at the time. From the source referred to, we are inclined to the opinion that the respondent had, at the time the contract was entered into, made his final proof, and had paid for the land. The appellant testified that he had heard that the respondent had made his final proof; that he tacitly admitted it to appellant when they made the contract; and the testimony of Thompson was that the respondent said in his presence, before the day set for the contest in the land-office, "that he would beat Mr. Richards; that he had sent money to the office to pay for the land; that he had the drop or the advantage of him."

Again, the contract was made under the advice of Mr. Ellsworth, an attorney of this court, and evidently in the presence of the officers of the land-office, and was deposited with them for safe-keeping. We would hardly presume, therefore, that it was a contract in conflict with a well-known provision of a law of the United States,-a clause in the pre-emption law,-which, long prior to that, had received a construction from the courts of the country, and was understood generally as intended to inhibit assignments and transfers of pre-emption rights, made for the purposes of speculating upon the bounty offered by the government of the United States to settlers in good faith. I understand that the inhibitory clause of that law, which is claimed in this case to have been violated, was not designed to apply to contracts relating to local disputes between those who had settled upon the public domain, and were honestly endeavoring, by toil and privation, to secure a home for themselves and families, nor to a sale of the claim after entry and payment of the purchase price, but that it was inserted in the act in order to prevent a class of land speculators from acquiring vast bodies of public lands through the agency of middle-men, who had no intention of establishing permanent residences.

In the case at bar both parties had settled upon lands belonging to the United States before the government survey had extended over them. Each had a claim; but, as frequently occurs, they overlapped each other. Both claimed the lot in dispute, and filed upon it in the land-office as a pre-emption claim. Suyder filed first, and, as we infer from the evidence, made final proof and paid for the land; but the appellant entered a contest. When the time arrived for the hearing the parties met, and probably, considering the trouble and expense that would result therefrom, concluded, like sensible men, to adjust it. The case is very similar, in most respects, to that of Snow v. Flannery, 10 Iowa, 318. There the plaintiff had purchased and settled upon a claim prior to the public survey. When the land was surveyed, his claim proved to be upon the south half of a certain quarter section, and subsequently the defendant acquired the north half of the same quarter section. They both filed upon the whole quarter section; it being fractional, contained no smaller subdivision by the survey, and the whole quarter could only be entered by one pre-emptor. Thereupon the defendant agreed to pre-empt the same,