This action is brought to compel the defendant to convey to the plaintiff a tract of land. The complaint alleges that the premises being public lands and having been surveyed by the Federal Government and become subject to preemption by actual settlers, the plaintiff' in December, 1867, filed with the Register his declaration of intention to hold the land as a preemption claim and to enter it under the laws of the United States; that about the same time the defendant applied to locate it as lieu land under the laws of the State, and also made an application to preempt it under the laws of the United States. It is further alleged that in pursuance of an agreement between the parties the plaintiff withdrew his claim of preemption and allowed the defendant to obtain a patent therefor, which he did obtain in FTovember, 1868. This agreement was that the defendant after obtaining the patent was to convey to the plaintiff" the southern half of the eighty-acre tract upon being paid the one half of the expenditures incurred in obtaining the patent.
A demurrer to the complaint being sustained and the complaint dismissed, this appeal is taken from the judgment.
The complaint is ambiguous and uncertain, in that it does not clearly set forth whether the title which the defendant was to obtain, and did subsequently obtain, was a title to the land as lieu land or a title under the preemption laws of the United States, and the ambiguity and uncertainty in this respect was specially pointed out in the demurrer. It was *25important that the complaint should have set forth the nature of the title in this respect; for if it appeared that it was a title by preemption derived directly from the United States, then the contract relied upon, having been made before entry of the lands, would be one in contravention of the preemption laws of the United States, and, therefore, not to be enforced in this action. (See the authorities cited in Thurston v. Alva, ante, p. 16, and Damrell v. Meyer, 40 Cal. 166.)
The demurrer was correctly sustained, and the judgment is affirmed.