*202Opinion by
Hoyt, Associate Justice.This was an action of ejectment brought by the defendant in -error, who alleged in his complaint that he was entitled to the land by virtue of a certificate of purchase issued by a Receiver -of Public Moneys of the United States. The defendant in the Court below, as a part of his answer, set up the existence of certain facts tending to show that said certificate was illegally issued; and that on account of such illegality, the Commissioner of the General Land Office had cancelled said certificate.- The Court, on motion of plaintiff, struck out all that was alleged in the answer as leading to the action of the said Commissioner in ■so cancelling said certificate; and this, we think, was error,-as in our opinion such allegations were proper by way of inducement, and defendant should have been allowed to prove them -as matter of explanation of the Commissioner’s said action.
Besides, we think the letter of said Commissioner, offered in evidence by the defendant, should have been admitted, as tending to prove that the cancellation of said certificate and its exclusion was error, which entitles defendant to a new trial.
But we find from the evidence, that it appeared by the testimony of both parties that at the time this suit was commenced, the claims of the respective parties thereto to the land in question were being waged in the Department of the Interior of the United States; and this fact being conceded, as we think it is by the record in this case, it was not proper for the Court to interfere to aid either party (by way of affirmative relief), until the matter had been fully terminated by the executive branch of the Government; and upon this fact appearing to the Court, it should have dismissed the cause at the -cost of the plaintiff; and its refusal or failure so to do was error, for which the judgment and verdict must be set aside.
Owing to the existence of the facts above stated, no new trial -can be had, and a judgment will be entered here reversing the judgment of the lower Court with costs, and the cause remanded, with directions to the Court below to dismiss said action at the «cost of the said plaintiff.