Stripped of the mass of irrelevant and redundant matter found in the record, the case presented is this:
One Hollingsworth, it is claimed, settled on the land in controversy in 1853, as public land. He died intestate the following year, and left, surviving him, a wife and four children. The widow died intestate in 1857. The tract in dispute is *270composed of lots 4, 5, and 6 of section 36, in township 2 south, range 6, west of the Mount Diablo base and meridian. This township was surveyed, and a plat of the survey was made and approved by the United States Surveyor-General for the State of California on the 16th of October, 1863. A certified copy of the plat was on the same day filed in the United States land office at San Francisco; but was soon afterwards withdrawn. On the 19th of March, 1868, an amended plat of said township was made, under the authority of said United States Surveyor-General, and approved by him, and a copy thereof was filed in the land office, on both of which plats the land in dispute appeared as surveyed public land of the United States.
November 26th, 1867, the plaintiff Chapman was, by the Probate Court of the city and county of San Francisco, appointed administrator of the estate of the deceased Hollingsworth, and on the 8th of April thereafter letters of administration in the matter of the estate were issued to him. On the day last named, Chapman, as such administrator, filed, on behalf of the heirs of Hollingsworth, in the proper United States land office, a declaratory statement, claiming the said premises under the pre-emption laws of the United States, and alleging that Hollingsworth settled upon the land in 1853, improved it, and continued to reside thereon until his death. A contest for the land thereupon arose in the land office, between the heirs of Hollingsworth, the State of California, and one Bepler, both of the latter being also claimants—Bepler as a pre-cmptor. In this contest, testimony was begun to be taken by the register and receiver, in relation to the right of the heirs of Hollingsworth to enter by pre-emption the land in question, on the 18th of August, 1868, and a large amount of testimony was taken therein. The case was finally closed before the register and receiver on the 28th of July, 1869, and resulted in a decision by the register and receiver against the right of the heirs of Hollingsworth to enter the land, and also rejecting the application of Bepler; but awarding the land to the State of California. This decision of the register and receiver was, on appeal to the commissioner of the general land office, reversed by that officer, in so far as it rejected the claim of the heirs of Hollingsworth, and awarded the land to the State of California, *271and affirmed, in so far as it rejected the claim of Bepler. An appeal being taken to the Secretary of the Interior, the decision of the commissioner in the matter was affirmed. From which it resulted, that the heirs of Hollingsworth were allowed to enter the land, and in due time a patent was issued, conveying to them the legal title.
At one stage in these proceedings, to wit, on the 5th day of February, 3869, the defendant, having theretofore declared his intention to become a citizen of the United States, and possessing at the time the qualifications necessary to enable him to preempt land from the Government, entered upon the lots in question, wliich were at the time unoccupied, with the intention of pre-empting the same, and erected a dwelling-house and other improvements thereon, and has continued to reside there ever since. Within three months next after his settlement, the defendant, for the purpose of acquiring the Government title to the property under the pre-emption laws, offered to file with the register and receiver of the land office his declaratory statement in due form, and at the same time tendered to the register and receiver the proper fee. Those officers refused to accept or file the statement, or to receive the fee, because of a rule then in force in the land department forbidding the filing of a declaratory statement, based upon an alleged right having its origin subsequent to the commencement of a contest between other parties for the same land. From this ruling of the register and receiver, the defendant appealed to the commissioner of the general land office, where the decision of the register and receiver was affirmed; and from the commissioner’s decision, the defendant appealed to the Secretary of the Interior, who affirmed the decision of the commissioner in the matter.
Thus it will be seen, that, after a contest between the State of California, Bepler, and the heirs of Hollingsworth, originating before the register and receiver prior to the defendant’s settlement, and carried to the head of the land department of the Government, the land in controversy was finally awarded, and conveyed by patent, to the heirs of Hollingsworth; while, for the reason already mentioned, the application of the defendant to file his declaratory statement was rejected, and he consequently not allowed to become a party to the contest, or to *272offer any proof before the register and receiver. After the issuance of the patent to the heirs of Hollingsworth, the plaintiff acquired from them an undivided half of the disputed premises, and subsequently commenced the present action, which is ejectment, to recover the whole of the property from the defendant. The pleadings on the part of the defendant are unnecessarily numerous and long. They occupy sixty-two pages of the printed transcript, and have entailed upon the Court much unnecessary labor in their examination. The substance of them all is, first, an answer denying that the plaintiff has any title to or interest in the lots sued for, but averring that the title thereto is in the defendant; second, a cross-complaint alleging that the land in question was within the claimed limits of the rancho Laguna de la Merced until the final approval of the survey of that grant in 1866, which survey omitted the disputed premises from the boundaries of the grant, and left it public land of the United States; that the plaintiff, fraudulently designing to obtain the land for himself, procured it to be entered under the pre-emption laws of the United States by the heirs of Hollingsworth, based upon an alleged settlement by Hollingsworth in 1853, and his continual residence thereon until his death in the following year ; that the land was not subject to pre-emption at the time of Hollingsworth’s alleged settlement, but was part of the Mexican grant already mentioned; that, in fact, Hollingsworth never did settle or reside upon the land in question, and never acquired the right to pre-empt the same, and never claimed such right.
The cross-complaint also alleges, at great length, the various proceedings before the officers of the land department, the substance of which has been already stated, culminating in the issuance by the Government of a patent to the land to the heirs of Hollingsworth, and charges that the testimony introduced before the officers, and upon which the patent was finally issued, was false, and was fraudulently introduced by the plaintiff. in pursuance of his alleged fraudulent design to obtain the premises in question for himself. The prayer is that the plaintiff be decreed a trustee for defendant in respect to the property acquired by plaintiff by virtue of his deed from the heirs of Hollingsworth, under the patent from the Government, and *273that he be compelled to convey the legal title thereto to the defendant.
Respecting the cross-complaint, the first question that suggests itself is, What right has the defendant shown to the title to the land ? Of course, it is incumbent on him to show that he is, in equity, entitled to the legal title before a court of equity can compel the conveyance of such title to him. So far as any supposed right on his part is concerned, it is based ujion the facts, that, pending a contest in the land office, between other parties for the land in question, he, the defendant, finding it unoccupied, went upon it on the 5th day of February, 1869, with the intention of acquiring the title to it under the preemption laws 5 that he erected improvements thereon, and has continued to reside there ever since j and within three months after the date of his settlement offered to file his declaratory statement with the register and receiver, at the same time offering them the necessary fee, both of which offers were refused by the officers, because, as already stated, the rules of the land department at the time required that no such statement should be filed or received after the commencement of a contest between other parties for the same land, and there was then pending in the land office such contest, in which the testimony had been partly taken.
It cannot be doubted that the commissioner of the gene mi land office, subject to the supervision of the Secretary 0f t]le Interior, may make rules and regulations, not inconsgment with laiv, for the government of the various officers m the sale and disposal of the public lands, including rules xor the making of the required proof, and the trial of pre-emption contests. And conceding, without deciding, that wlqer0 such rules and regulations are unreasonable, the courts, may interfere; still it cannot be said that the rule forbidding the filing or receiving by the register and receiver of declaratory statement for a tract of land, after the inauguration of a contest between other parties for the same land,, is so unreasonable as to justify such interference. When, such contest arises, testimony is taken on behalf of the respective contestants, and each has the right to cross-examine the witnesses of the other. After this has been done, or partly done, to permit a third party to come - in and file a *274declaratory statement for the same land, and thus become a party to the contest, would open anew the controversy, and might result in its being kept open to the serious interference with the disposition of the land, and the proper administration of the land department. We know of no law, and have been cited to none, contravened by this rule of the land office, and we cannot say that the officers of that department of the Government had no power to refuse to receive the declaratory statement of the defendant, or to entertain his proofs, upon the facts disclosed by him.
The law under which he claims the right to pre-empt the land in. controversy declares, among other things: “That prior to any entries being made under or by virtue of the provisions of this act, proof of the settlement and improvement thereby required shall be made to the satisfaction of the register and receiver of the land district in which such lands may lie,” etc. (Act Sept. 4th, 1841, § 12, 5 IT. S. Stat. at Large, p. 456.) This proof it is essential the defendant should make before he could be entitled to enter the land; and of this proof the register and receiver are the exclusive judges, subject to the supervision and control of their superior officers of the land department. The courts have no power to substitute their judgment upon the facts of the defendant’s alleged settlement and improvement of the land for that of the officers to whose judgment- Congress has confided the determination of those questions. vases are numerous in which the equitable rights of persons claiming under the pre-emption laws have been protected by thC courts against the legal title acquired by other parties by means of the introduction of false testimony, or other imposition upon the officers of the land department, or by the misconstruction by those officers of the law, upon an admitted state of facts. But in all of such cases of which we have any knowledge, the party thus protected had connected himself with the title of the Government, and thereby acquired some right which, in equity, entitled him to protection. We know of no case where the holder of the legal title under a patent from the Government has been compelled by a court of equity to convey that title to one occupying the position of the defendant in the present action. To do so would be to compel the *275conveyance of the title from the grantee of the Government to one who had established no right to purchase the land from the Government itself.
Nor do any of the-cases cited support the position taken by the defendant.
In Johnson v. Towsley, 13 Wall. 72, Towsley had made his declaratory statement, and proved his settlement to the satisfaction of the register and receiver, and they gave him a patent certificate. Johnson contested Towsley’s right before these officers, and asserted that he was entitled to the pre-emption right for the same land, and when they decided in favor of Towsley he appealed to the commissioner. This officer approved the decision of the register and receiver, and an appeal was taken by Johnson to the Secretary of the Interior. The latter officer rejected Towsley’s claim, on the ground that he had previously filed a declaratory statement of his intention to claim a pre-emption for another tract of land, which he had voluntarily abandoned, and consequently awarded the land to Johnson. The Court held that the Secretary’s construction of the statute upon the subject of the abandonment was erroneous, and decreed that Towsley was entitled to a conveyance of the title from J ohnson.
In Garland v. Wynn, 20 How. 6, there had been a conflict between two claimants of a right of pre-emption to the same land under different statutes. The register and receiver of the local land office decided in favor of the assignee of Garland, and gave him a" patent certificate. The commissioner of the general land office approved of the decision, and issued the patent to Garland. Wynn, the other claimant, whose entry was the oldest, and had been once allowed, thereupon filed his bill in equity, asserting his prior right to the land, and his equitable title to the patent. The Supreme Court of Arkansas sustained the bill, and ordered the patentee to execute a conveyance of the land to the complainant, and on appeal, the Supreme Court of the United States affirmed the decision.
In Lindsey v. Hawes, 2 Black, 554, the ancestor of the complainant had obtained a pre-emption right to the land in dispute, and received a patent certificate of the same. Some years afterwards, the defendant Hawes claimed a like pre-emption *276right to the land, and received a similar certificate, upon which a patent was issued to him. The suit was brought by the heirs of the first pre-emptor, to compel a conveyance of the legal title acquired by the patent from the patentee, and parties claiming under him with notice. The Supreme Court of the United States held, that the first pre-emptor had acquired the better right to the land, and was therefore entitled to a conveyance of the legal title.
The case of Lytle v. The State of Arkansas, 9 How. 337, is thus stated by the Supreme Court of the United States in The Yosemite Valley case, 15 Wall. 90:
“In that case (Lytle v. State of Arkansas, 837), a preemptioner by the name of Cloyes claimed a right to make an entry of certain lands under the Act of Congress of May 29th, 1830. The act gave to every occupant of the public lands prior to its date, who had cultivated any part thereof in the year 1829, a right to enter at the minimum price, by legal subdivisions, any number of acres not exceeding one hundred and sixty, including his improvements, provided the land was not reserved for the use of the United States, or either of the sev-. eral States. It required, before any entries could be made, that proof of settlement or improvement by the claimant should be made to the satisfaction of the register and receiver of the land district, pursuant to rules prescribed by the commissioner of the general land office. Under rules thus prescribed, proof was made of the cultivation and improvement of Cloyes, which ivas satisfactory to the register and receiver, and payment of the price was offered by him. Those officers held, that he was entitled to enter one of the fractional sections claimed, the one upon which his improvement was made, and not the others, and issued a certificate to him to that effect. The plats of the township where the land was situated not having been furnished by the surveyor-general as required, the formal entry with the register could not be made; but in lieu thereof, under instructions of the commissioner of the general land office, proof identifying the land claimed was allowed to be filed. The Act'of 1830 expired in one year, and the public surveys of the land were not completed until December, 1833, and were not returned to the land office until the beginning of 1834. Cloyes had thus *277done all that he could do to perfect his right to the title of the United States, under a law which opened the land for sale in limited quantities, at specified prices, to its occupants and cultivators.
“ Subsequently, in July, 1882, Congress passed an act giving to parties entitled to pre-emption under the Act of 1830 one year from the time when the township plats should be returned to enter the lands. Under this act, the heirs of Cloyes, he having died, made payment to the receiver for the fractional section to which his pre-emption claim was allowed in 1880, as already stated, and also for the fractional sections to which his claim was rejected, and applied to the register to enter them, but that officer refused to allow the entry. The Court held, that, so far as the fractional quarter-section to which the claim was allowed by the register and receiver in 1830 was concerned, the refusal did not affect the right of the claimant. And it is with respect to the inability of Cloyes to make the entry in 1830 for want of the township plats which the surveyor-general had failed to return, and the refusal of the register to allow the entry subsequently, under the Act of 1832, that the language cited by counsel was used by the Court; namely, that 6 It is a well-established principle, that when an individual, in the prosecution of a right, does everything which the law requires him to do, and he fails to attain his right by the misconduct or neglect of a public officer, the law will protect him. In this case, the preemption right of Cloyes having been proved, and an offer to pay the money for the land claimed by him under the Act of 1830, nothing more could be done by him under that act. And subsequently, when he paid the money to the receiver, under subsequent acts, the surveys being returned, he could do nothing more than to offer to enter the land, which the register would not permit him to do. This claim for pre-emption stands before us in a light not less favorable than it would be if Cloyes or his representatives had been permitted by the land officers to do what in this respect was offered to be done,’ ” and the Court in the Yosemite case say there is no question about the correctness of the doctrine there announced.
It is unnecessary to refer in detail to all of the cases which it is said sustain the position of the defendant. Those already *278referred to are the ones to which most weight seems to have been attached, and the wide distinction between them and the case at bar is sufficiently apparent. It is enough to say that in no case to which we have been referred has relief in the nature of that here sought been granted to one who, like defendant, has never filed a declaratory statement, never made proof of settlement, never paid any money, never received any certificate or other recognition from the officers of the land department, but who went upon the premises after the inauguration, of a contest between other claimants to the same land, and at a time when, by the rules and regulations then in force in that department, he had no right to file a declaratory statement, and consequently no right to make proof or payment—in short, no right to pre-empt the land. In our opinion, not only has the defendant failed to show such paramount equities as would justify a decree compelling the conveyance to him of the title conveyed by the patent from the Government, but he does not occupy a position entitling him to be heard to question the proof upon which the officers of the Government acted in awarding the patent to the heirs of Hollingsworth. It is not pretended that the patent is absolutely void. If, as is asserted by the defendant, it was procured to be issued by the introduction of false and fraudulent evidence before the officers of the land department, it is unquestionably voidable at the suit of the Government, or any person in privity with the paramount source of title, but not at the instance of a stranger to that title, as is the defendant. (Doll v. Meador, 16 Cal. 295; Burrell v. Haw, 40 id. 377; Rhodes v. Craig, 21 id. 423; Stark v. Starrs, 6 Wall. 418.)
Entertaining these views, it is not necessary to inquire whether the action of the Court below can be sustained on other grounds.
For the reasons already stated, we think the judgment and order should be affirmed, and it is so ordered.
Morrison, C. J., McKinstry, J., Sharpstein, J., McKee, J., and Myrick, J., concurred.