delivered the opinion of the court.
*508This is a case wherein the appellee brought her suit in the District Court against the appellant, to quiet title to a certain tract of land.
The appellee holds title by virtue of a patent from the United States to one Wing. The appellant claims that she was entitled to enter the land under the homestead laws long prior to the entry and patent to Wing, which right she was deprived of by an erroneous decision of the land department of the United States, and hence is entitled to a decree against appellee that he hold the title in trust for her.
It is conceded by admissions upon the argument that, when this action was commenced, appellee and others holding under the patent had improvements upon the tract of great value, and the tract and the improvements thereon are worth about $20,000, and this is a test case to try the rights of all holding under the patent.
It is further conceded that Silas Galliher, the husband of appellant, upon the 10th day of August, 1872, made a formal entry of the tract under the homestead act, and died about eight months thereafter, at Olympia, Washington Territory.
The first point to be decided is whether this entry was made in good faith, or was fraudulent from the beginning.
At the time of the entry, said Galliher and his wife had their domicile and home at Olympia, had property there, and were engaged in keeping a hotel there. They had children, and were educating them there. Olympia is forty miles from the tract of land in dispute. The tract of land consists of gravelly, barren land, covered with timber, adjoining the city of Tacoma. The husband during his lifetime, of about. eight months after the entry, continued his residence and business at Olympia, and during that time had not done anything upon the land except cut down a few trees and a little brush, and lay a few logs for the foundation of a log cabin.
There is no evidence that he moved to the land, or made any preparation to move there, or made any declaration of such intent.
*509The character and small amount of land make it extremely improbable that any sane man could have intended at that time to move upon and cultivate this land, for the purpose of making a farm out of it, as his home. His conduct and words gave no evidence of such intent; his failure to prepare a residence for more than six months, and failure to make any change in Olympia which would indicate that he intended to change his residence, are circumstances which satisfactorily show that, at the time he made the formal entry, he did not intend to reside upon and cultivate the land, as the homestead law requires. The intent must have been to enter the land for speculation, either to use or sell the timber, or for some other purpose.
The fact that the land was valuable only for timber, and that its value for all purposes was, some years after his entry, only about three dollars per acre, shows that he never intended to reside upon the land as his home, and farm and cultivate it.
If his entry was made for any other purpose than this, it was fraudulent and void, and no equity can befoundeduponit.
This is not a case of an originally valid entry afterwards abandoned, but of an originally void entry. The above considerations alone would be sufficient to prevent any holder of a legal title to be held a trustee for the fraudulent entryman.
It is claimed that Wing, when he made application to enter the land under the timber act, had no notice of the Galliher equity.
The notice claimed is that the appellant had made an application to enter the land at the United States land office, which had there been adjudicated against her; that she had filed notice of this in the auditor’s office of the county wherein the land is situated; that he could have seen improvements upon the land made by appellant after her husband’s death.
1. Of the notice in the auditor’s office, it is sufficient to say that there was no law authorizing it; and it was not, therefore, implied notice, and there is no evidence that appellee or Wing ever saw it or heard of it.
*5102. As to the log cabin and a little fencing rotting upon the land, and the clearing, if any, overgrown with pine timber, these did not tend to prove the land had been occupied as a homestead, or occupied at all. The appearances of the land would rather indicate the presence of trespassers on the public land to strip it of timber, which had been abandoned by them.
3. As to the adjudication against appellant in the land office, which was June 1, 1881, no doubt all parties had notice of this adjudication and many of the reasons given therefor.
The adjudication was, in effect, that the appellant had no right to enter the land, and that the land was public land of the United States subject to entry. This was a binding decision upon all parties until it was reversed; and, instead of being a notice that appellant had a right, it was notice that she had no right. True, the reasons given for the decision might have been erroneous; but, if they were, this did not tend to vitiate the decision itself. • No doubt both the appellant and Wing supposed that the reasons given were correct law until long after Wing had received a patent.
True, the affirmative plea that the appellee was an innocent purchaser, without notice, is not formally made; but each side, without objections, took evidence upon this point, and the case was submitted to the court below upon this evidence, without objections to the form of the pleadings. Had the point been made in the court below, that court would rightly have disregarded it or ordered the pleadings to be amended to conform to the evidence. The want of an affirmative plea should have been disregarded in the court below, as it was, and will be disregarded here.
The appellant knew of this decision, and acquiesced in it without objection until 188á, and long after patent had issued to Wing. She could not have applied to open the case, or had a rehearing until 1882, when the Miller case was decided. In the latter case, the reasons for deciding the case of Galliher were disapproved.
In the meantime, on the 20th of December, 1881,. acting *511on the decision in the Galliher case, Wing applied to enter. In this application to enter, the law requires a notice to be published to all the world of the intended entry. This notice describes the land that is to be entered, and states that it is to be entered because it is more valuable for timber than for agriculture. Appellant had this notice, but made no objection to Wing’s entry in the United States land office, or elsewhere, until long after Wing had obtained his patent and paid his money. The patent was issued to him April 20, 1881.
The adjudication that this was unoccupied public land, more valuable for timber than for anything else, was the foundation of the patent. This adjudication was binding upon all private parties, and upon the appellant among them; and after this judgment by default, appellant cannot relitigate the question.
In 1884 appellant applied to the general land office to be allowed to enter. That office wrote her of the above adjudications in that office, and that they were final. From this time, the appellant never attempted to set up any claim until she answered in this action.
In the meantime, the property had been laid out into town lots and valuable improvements put upon them; and after this, appellant first makes known that she had a claim, and insists upon it. If she had a right, which she had not, and had permitted those sales and improvements without notice, she could not now assert a right, but would be estopped from so doing. If she were not entirely estopped, she would have to tender payment of the price paid by appellee and the costs of the improvements before she could ask a court of equity to help her. Instead of this, she does not offer to pay anything except the government price, which would be only a few cents.
The evidence that appellant attempted to perfect her claim by improving the land prior to 1876, if her evidence were conclusive of her bona ftdes, would not avail her, for the original entry, being fraudulent and void, could not be perfected. The evidence is far from showing that she ever intended this *512claim for her home or farm. It rather discloses the fact that she continued to reside at Olympia, making occasional visits to the land for speculative purposes. No improvements made under such circumstances could, in any way, give her a right or perfect a right.
Wing never by any act of his prevented appellant from perfecting her claim in' the land department. He misled that department neither as to law nor fact.
Hence this ease is not similar to any case cited wherein a patentee was held trustee for another. The equities are as strong in favor of Wing as in favor of appellaut, and, were he a party, his legal title would prevail.
Much stronger are the equities of appellee, and for this reason the conclusion is still stronger that appellee’s title shall prevail.
.Let the judgment be affirmed.