Baldwin, J. and Cope, J. concurring.
The plaintiff alleges in his complaint that in November, 1857, he settled upon a quarter-section of land in Placer county, belonging to the United States; that the defendant subsequently, in November, 1858, procured the Locating Agent of the State to locate for him the said section, under the Act of April 23d, 1858 ; that the said location has been approved by the Register of the State Land Office; that the defendant has made the first payment of the purchase money, and has received a certificate of purchase from the Register, and now threatens to sue for the possession of the land ; that the plaintiff first ascertained this location in January, 1859, and then protested against it; and has “ always been ready, and willing, and desirous ” of making the location under the said act himself, and has offered to pay the expenses which the defendant has incurred in obtaining his certificate. The plaintiff, therefore, prays the Court to restrain the defendant from commencing any suit for the recovery of the land; from making any further payments upon the purchase, and obtaining any further evidence of title; and to compel him, upon receipt of the amount of his expenditures, to surrender his certificate to the plaintiff. A *61demurrer was interposed to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action. The Court overruled the demurrer, and the defendant failing to answer, gave judgment in conformity with the prayer of the complaint, with the additional provision that if the defendant should pay to the plaintiff five hundred dollars within twenty days after notice of the decree, then the plaintiff should surrender the premises, with the improvements.
The complaint shows that the defendant has the better right to the premises. If the plaintiff was “ always ready, willing, and desirous” to make a location himself under the School Warrant Act, he should have acted in the matter, and not have allowed another to secure the title.
The judgment must be reversed, with direction to the Court below to dismiss the suit; and it is so ordered.