Petition for rehearing.
[Riled July 28, 1888.]
Thayer, C. J.The main question involved in this case is whether the appellants proved a breach of the covenant of title alleged in their complaint in the action. The covenant is a general warranty of title against the lawful claims of all persons. I used to suppose that such a covenant would not be regarded as broken without the covenantee having been evicted from the granted premises by a paramount title; but by some kind of logic which I fail to appreciate, the courts have held that there need be no actual eviction shown, and that where the outstanding title is proved to be in the government, it will be sufficient without proof of a constructive eviction even. There was no ouster of the appellants proved in this case, beyond an attempt upon the part of Karnstad to pre-empt the land; and it might reasonably be inferred from the evidence that the appellants encouraged him to do that. The United States may never claim the land, and if a recovery can be had upon such proof, the *396appellants could have kept the land, and also have claimed a return of the consideration money and interest. The covenant, so far as I can see, was as effectually broken when the deed was executed as it was at the time the action was commenced. That kind of doctrine tolerates injustice, especially in this case.
If the respondents had been notified that Karnstad was attempting to pre-empt the land, they would have had an opportunity to contest his right to do so, and probably been able to defeat him in his efforts in that direction. The register and receiver would not have been likely to have permitted his filing to stand under the circumstances, and in view of the rulings which they had already made in regard to the status of the title to the land. The respondent S. O. Corson endeavored to enter the land as a homestead, and the land department upon a contest instituted by the Oregon and California R. R. Co., had decided that it belonged to the latter; thereupon said Corson purchased it from the company, and subsequently executed the deed to the appellants containing the covenant in question. Ross, who is alleged to have filed upon the land May 21, 1859, made no claim to it, and the company by assuming to convey it debarred itself from claiming lieu land in its stead.
In such a state of affairs, the land department, unless it is organized to make inconsistent rulings and to complicate titles, would have rejected Karnstad’s filing and confirmed the appellants’ ownership. I make these allusions not with a view of departing from established precedents, but by way of protests against such an invasion of the general rule upon the subject as will occasion injury. It might not be the wisest policy to require an eviction by legal process in all cases, though the maintenance of it to that extent would often prevent collusion. It may, perhaps, be safe enough to allow a recovery for the breach of such a covenant where the covenantee has given up the possession of the land to the claimant of the alleged paramount title, if the covenantee is required to establish by clear and unequivocal proof that such claimant was the absolute owner of it; but no such recovery should be permitted when the question is left in doubt. Hence, the appellants were not entitled to recover in the action *397without establishing by proof that the land in question was preempted when the grant was made to the railroad company. Their counsel claim that they did prove that fact when they introduced in evidence the copy of the entry in the register’s books in the land office at Oregon City, which is referred to in the opinion delivered herein. The majority of the court was of the opinion that a copy of such an entry was not competent evidence.
Said counsel in their petition for a rehearing concede that it may not have been the best evidence, but claim that it was introduced without objection, and was sufficient evidence of the fact, and they cite section 745 of the Code to show that entries made in public or other official books, etc., are primary evidence of the facts stated therein. That is the general rule as to entries in public books independently of the statute. Mere certified or office copies, however, from such books are not evidence, unless where the officer is authorized to give out or certify copies. (Part 2, n. 163, to p. 163, 3d ed., C. & H. notes to Phillips on Evidence.) But if we yield to counsel the full benefit of the proof which the entry furnishes, does it establish that Boss had pre-empted the land in question when the grant was made to the railroad company? Is such an entry evidence of any fact of which the officer has no personal knowledge, and is not required to determine from the statement contained in the entry? It seems to me not. It would doubtless under the rule referred to be evidence that Boss had filed a declaratory statement, to the effect that it was his intention to claim the tract of land as a preemption right. Under the act of Congress upon the subject, it would be proof that he had taken the preliminary step under the act, entitling him to purchase it in preference to others. The statement may have shown that Boss claimed to be a settler upon the land, and a qualified pre-emptor; but that would not prove such settlement or qualification, nor authorize the register to infer it. Those matters must be established when the final proof is made in the mode pointed out in the act.
'Such a statement is no evidence upon which the register and receiver are authorized to issue the final papers, giving the *398claimaut a duplicate of the receiver’s receipt for the money paid. It is a mere caveat, notifying the register not to allow any other party to enter the land as a pre-emption or homestead until the declarant is heard. If the register was to undertake to find from the statement that the declarant was a settler upon the land, that he was the head of a family, or was qualified in the other respects, it would be extrajudicial. How, then, could it be inferred from the entry that Boss had settled upon the land, and possessed the various qualifications referred to? This view was announced substantially in the former opinion; but appellants’ counsel insist it is erroneous. They say that “the segregation or reservation is the quasi judicial act of the register of the local land office, based upon the application of any one who can satisfy the register in the manner required by law that he has the lawful qualifications, and has taken the step necessary to constitute him a settler. Under the law and rules of the department, the segregation or reservation does not take place until this evidence is furnished, then it is noted on the maps of public surveys, and recorded in the proper book of the local office where the land is situated. The land is then reserved, segregated, or otherwise appropriated. After that record is made no other filing or entry will be permitted, except after a contest instituted in the manner prescribed by the rules against the first claimant, service upon him, and a trial of his right.” But I cannot believe that the mere filing of the declaratory statement furnished evidence sufficient to satisfy the register that Boss had the lawful qualification, and had taken the step necessary to constitute him a settler upon the land; nor does it appear that the land was noted upon the maps of the public survey, and a description of it recorded in the local land office, as counsel would seem to think would be inferred. I do not believe that said copy of the entry in the books of the office authorizes any such inference. If Boss had been shown to have, been lawfully qualified to pre-empt the land, and to have settled upon and improve it as required by the act when the statement was filed, there might be some grounds for claiming that it was excepted out of the grant to the railroad company. But I think *399it- requires more proof to establish that it was “pre-empted” than the copy of the memorandum referred to.
The counsel appear to claim that because the entry in the book of the office of the register would prevent another person from taking steps to pre-empt the land, without instituting a proceeding to have Boss’ filing canceled, therefore the grant to the railroad did not affect it. The grant and an attempt upon the part of another person to pre-empt the land after Boss had filed on it stand upon a different footing. Congress is invested with full power to dispose of the public lands, and it may do so irrespective of any attempt by a party to pre-empt, or enter them as a homestead, unless a right actually vested and existed in favor of such party when the grant was made.
The bare filing of a declaratory statement to pre-empt those lands, unless the declarant were shown to be a qualified preemptor, and to have complied with the law upon the subject, would not prevail against such a grant. In this case the grant to the railroad company included the land in question: but if it were found to have been granted, sold, reserved, occupied by a homestead settler, pre-empted, or otherwise disposed of, then other lands were to be selected by the company in lieu thereof. Was the land shown to have been pre-empted prior to the grant? This question must be kept in view in determining the case, and it turns entirely upon the meaning of the term “ pre-empted ” as used in the grant. Boss did not complete his title to the land. His filing is shown to have been declared abandoned August 18, 1870, but at what time it was abandoned does not appear. It seems to me that it cannot reasonably be claimed that he pre-empted the land, or that he did more than to attempt to pre-empt it.
The grant does not provide that, “when any of said alternate sections or parts of sections shall be found to have been attempted to be pre-empted, other lands .... shall be selected,” etc., and unless an attempt to pre-empt and pre-empted are synonymous, the grant to the railroad company must prevail. I should be inclined to hold, however, that if Boss were shown to have possessed the requisite qualifications, and had complied with the *400conditions of the act up to the time of the grant, although he had not made his final proof and payment of the price of the land, the railroad company would not be entitled to it. But those facts should be shown with as great particularity and authenticity as is required in making final proof, in order to obtain the patent. The claimant’s ex parte declaration to the register, that he was legally qualified under the law, had complied with its provisions, and intended to claim the tract of land as a pre-emption right, would hardly be sufficient proof to bring it within the exception contained in the grant, either in a contest in the land department, or before the courts.
The petition for a rehearing should therefore be denied.