delivered the opinion of the court.
On the 26th of November, 1856. the plaintiff, a minor, obtained from the auditor of public accounts a donation deed to the north-west quarter of section twenty-eight, in township seven, north of range fifteen west, in Conway county. But at this time, and for several years before, the defendant owned an improvement on the land, ‘ whereby, under section 19, chapter 101, Gould's Digest, it became necessary for the plaintiff to pay to the defendant double the value of the improvement, and to do so within three months from the deed, and take a receipt from the defendant of the amount of money paid for the improvement, and also, within thirty days from that time, to file the receipt with the auditor.
The plaintiff did not pay, or offer to pay, the defendant for his improvement.
On the 27th of March, 1857, the defendant applied to the auditor to purchase the land, filing his affidavit with the auditor, in which he|stated thatahe owned an improvement on the land at the time it was donated to the plaintiff, and that the plaintiff had not paid or tendered to him double the value of his improvement.
The auditor thereupon allowed the defendant to purchase the land by paying all arrearages of taxes charged on it, amounting to one hundred and sixteen 35-100 dollars. The defendant paid the money to the auditor, and the auditor executed a deed to him for the land as if it had never been donated, under the authority of the section of the statute before cited.
The case is a conflict as to the validity of the two deeds, the plaintiff praying that the defendant’s deed be canceled. The court below dismissed his bill, and he appealed.
The plaintiff obtained the land as a gratuity from the State, subject to the condition prescribed by the law, of paying double the value of the defendant’s improvement.
Failing in this his right was forfeited, and the auditor properly sold the land to the defendant, whose title to it is good against the plaintiff.
We have not overlooked the argument of the counsel for the appellant, that the defendant had no improvement on the land when it was donated to the plaintiff, from the improvement having reverted to the State upon the defendant’s failure to preserve his donation title of 1855, and therefore that the plaintiff was not obliged to pay the defendant double the value of the improvement. However that might be determined, upon suitable allegations, we need not say, for the first donation title and its forfeiture are not brought into the case, only as evidence in the agreed state of facts. There is no pleading in the case setting it up, on which the evidence can stand for consideration.
The case made by the bill is the plaintiff’s donation deed, and the defendant’s subsequent purchase from the auditor, which is alleged to be void. The case of the answer is, that defendant owned an improvement on the land when plaintiff obtained a donation deed to it, which was not paid for, for which the auditor’s deed of March, 1857, was procured by the defendant. Thus, the foundation of the appellant’s argument, however good it may be in itself, has no pleadings upon which to rest.
Let the decree be affirmed.