If the ruling in Hosmer v. Wallace (47 Cal. 461) was correct, the judgment in this case for the defendant must be affirmed, as the cases are not distinguishable in the particulars on which that decision rests. But counsel for the plaintiff (appellant) contends with . earnestness, that the ruling in that case cannot be supported on reason and auhority, and asks us to review it. We find it unnecessary, thowever, in this case, to discuss anew the questions of law decided in Hosmer v. Wallace, as the judgment must be affirmed on other grounds. But we are not to be understood as admitting by implication the incorrectness of that decision, which was founded on the authority of Johnson v. Towsley (13 Wall. 73). It is claimed, however, that in the late case of Warren v. Van Brunt (19 Wall. 646), decided since Hosmer v. Wallace, the ruling in Johnson v. Towsley has been commented upon and explained by the Supreme Court of the United States, so as to show that our construction of that decision was erroneous. But we have deemed it unnecessary to consider to what extent, if at all, the decision in Warren v. Van Brunt has modified the ruling in Johnson v. Towsley, as we construed it, as our decision of the present case rests upon other grounds.
The plaintiff claims to be entitled to the land as a tona fide pre-emptioner, and the defendant as a purchaser under the seventh section of the act of Congress of July 23, 1866, entitled ‘ ‘An. Act to quiet land titles in California” (14 U. S. Statutes at Large, 218). It appears from the findings, that in the year 1859 the plaintiff, with his family, settled upon the quarter-section of which the land in contest is a portion, with the intention to pre-empt the same, and has ever since continued to reside upon it; that the said quarter-section was then within the exterior boundaries of a Mexican grant, which has since been finally confirmed and patented; that the Government survey was not extended over said land until the month of May, 1866, and that by the final survey of the Mexican grant said quarter-section was excluded therefrom. It further appears that pi;ior to *392"the plaintiff’s settlement, one Swinford, for a valuable consideration and in good faith, had purchased from the grantee of the Mexican grant or his assigns, a tract of one hundred acres Avithin the exterior boundaries of the grant, including the premises in controversy, Avhich tract Avas excluded from the final survey under the decree of confirmation; and that he had inclosed the whole one hundred acres, used and improved the same, and continued in the actual possession thereof up to the time that he procured a patent therefor from the United States, as hereinafter stated, the' plaintiff never having made any improvements upon, used or cultivated the lands in controversy, or any part of it. It also appears that after the final survey of the grant, the land excluded therefrom was for the first time surveyed and sectionized by the United States, and the toAvnship plat was filed with the register and receiver shortly before the passage of the act of Congress of July 23, 1866. Within the proper time after the filing of the plat, and a feAv days prior to the passage of the act, the plaintiff filed his declaratory statement, claiming the Avliole quarter-section as a preemptioner; and some months after the passage of the act, made his proofs before the register and receiver, who accepted his application to purchase, and on payment of the purchase-price, issued to the plaintiff a duplicate receipt therefor. Subsequently, SAvinford (under Avhom the defendant deraigns title) made his application under the seventh section of the act of Congress to purchase the premises in controversy, then in his possession. Thereupon the Commissioner of the General Land Office directed the register and receiver to investigate the entry theretofore made by the plaintiff and to take testimony in respect to the plaintiff’s and Swinford’s claims, and to report the same Avith their decision to the commissioner. The proofs were accordingly taken, and the decision of the register and receiver Avas in favor of the plaintiff; but on appeal to the commissioner and subsequently to the Secretary of the Interior, the decision was reversed and the land awarded to Swinford, to whom a patent has issued. The action is to have the defendant declared to be a trustee of the legal title, and to *393compel a conveyance of it to the plaintiff. The judgment was for the defendant, and the plaintiff appeals.
There can be no doubt of Swinford’s right to purchase the land under the seventh section of the act of Congress, unless the plaintiff is protected by the proviso to the eighth section, which is as follows: “Provided, that nothing in this act shall be construed so as in any manner to interfere with the right of bona fide pre-emption claimants."
It is to be observed, 1st, that when the plaintiff settled on the land it was within the exterior boundaries of the grant, and was not then subject to pre-emption. 2d. That Swinford Avas then in actual possession of the premises in controversy, as a purchaser in good faith for value under the grant, and continued so in possession until after the passage' of the act of Congress. 3d. That the court fails to find that the plaintiff Avas a “bona fide pre-emption claimant” of the premises in controversy. The term ‘‘ bona fide ” as applied to a pre-emption claimant in the proviso to the eighth section of the act, must be deemed to have some meaning, and Avas intended to designate one who, having the proper qualifications, in good faith settled upon a parcel of land which was subject to pre-emption, Avith the intention to pre-empt it, and Avho had performed, or at least Avas proceeding in good faith to perform, the necessary conditions. When the plaintiff made his settlement he was not a bona fide pre-emption claimant. On the contrary, he Avas a mere intruder on lands within the exterior limits of the grant, not subject to pre-emption, and from Avhieh he might have been evicted by an action at law. His occupation of the land he had reduced to possession continued to be Avrongful and tortuous, until the final survey of the grant by Avhieh this quarter-section was excluded. When this occurred, Swinford Avas in the actual possession of the premises in controversy, claiming as a bona fide purchaser for value under the grant. Did the exclusion of the land from the final suiwey, of its OAvn force and by operation of law, convert the plaintiff, Avho up to that time Avas a trespasser, into a bona fide pre-emption claimant, Avhose rights are protected by the proAdso, as against Swinford, Avho then *394was, and for a period commencing before the plaintiff’s settlement had been, in the actual possession as a bona fide purchaser for value.
In construing this statute it is to be observed, first, that under the decisions of this court and the Supreme Court of the United States, there can'be no pretense that prior to the passage of the act of July 23, the plaintiff had acquired an equity which the Government was bound to respect, or which the courts would enforce. (Hutton v. Frisbie, 37 Cal. 475; Whitney v. Frisbie, 9 Wall. 187.)
In the cases just cited it appeared that the grant of the Suscol Ranch—a large and valuable body of land—having been finally rejected by the Supreme Court of the United States, a number of qualified pre-emptioners immediately entered with the intention, in good faith, to take up preemption claims, and proceeded to perform the necessary conditions. It was conceded on all sides that at the time of their entry it was public land, subject to pre-emption. In the meantime, however, and before the pre-emptioners had paid the purchase-price, Congress passed an act, giving to bona fide purchasers from Vallejo, the Mexican grantee, a prior right to purchase, within a specified time, so much of the land as they had reduced to possession. In the cases cited it was decided that the pre-emptioners had acquired no rights which would prevail over those conferred by the act upon the purchasers from Vallejo. Congress was doubtless prompted to confer this extraordinary privilege upon the purchasers from Vallejo by the hardship of the case. They had purchased in good faith, under a grant supposed to be valid, and had expended their money in building up homes and improving the land. Their equities were considered superior to those of pre-emptioners, who had merely entered, but had not paid the purchase price.
Following up the same policy, Congress, by the act of July 22, 1866, conferred upon all persons, who, in good faith, and for a valuable consideration, had purchased lands of Mexican grantees or their assigns, under grants which were subsequently rejected, or -where the land purchased was after-wards excluded from the final survey, the right to purchase from the Government at the minimum price, so much of the *395lands as they had used, improved and continued in the actual possession of, “according to the lines of their original purchase." The defendant’s grantor, Swinford, comes fully within this category; and upon the principles settled in Hutton v. Frisbie, and Frisbie v. Whitney, supra, was clearly entitled to purchase the land in controversy, unless the plaintiff acquired a prior right, by virtue of the proviso to the eighth section, already quoted. It is true there was no similar provision in the Suscol Act, reserving the rights of pre-emptioners. But in view of the manifest policy which dictated both acts, we are of opinion that the plaintiff is not a “bona fide pre-emption claimant” in the sense of the proviso. He was a trespasser when he originally entered, and so continued up to the time of the final survey of the grant in May, 1866. During the short interval which elapsed between that time and the passage of the act of July 23, it does not appear that he performed any act indicating his intention to pre-empt the land which then was, and for many years had been, in the actual possession of Swinford as a bona fide purchaser under the grant, except to file his declaratory statement. It does not appear that after the land became subject to pre-emption, and he ceased to be a trespasser, he performed any labor or made any improvements upon it, or in any manner indicated his intention to claim the premises in controversy, except by the filing of his declaratory statement. In the Suscol case, the equities of the pre-emptioners were much stronger. They did not enter until after the final rejection of the grant, and when the land became public land, subject to pre-emption, and in good faith they proceeded to spend their money and labor in erecting improvements and cultivating the land. But Congress, nevertheless, awarded the land to the purchasers from Vallejo, as having the superior equity. In view of this legislation, it is not to be inferred that when, a year or two later, it passed the subsequent act of July 23, 1866, it intended to subordinate the rights of a purchaser from the Mexican grantee to those of a pre-emptioner who originally entered as a trespasser, and who was npt induced to enter and improve the land on the faith that it was public land, subject *396to pre-emption. The plaintiff claims that, under these circumstances, the two highest officers of the Land Department have committed an error in awarding the land to Swinford. But we think otherwise.
Judgment affirmed.