after stating the facts, delivered the opinion of the court.
1. It is apparent that plaintiffs are not entitled to the full relief demanded in their complaint. Before they could rescind the contract and compel a reconveyance of the property, they must return, or offer to return, the money received by them on the contract.
2. The only question in the case, then, is whether the plaintiffs are entitled to the balance of the purchase price now in the hands of the trustee. The contract of July, 1897, provides that such payment shall not become due until a certificate for a patent to the mining land shall be received by the trustee. As no such certificate has been received by him for the fifteen-acre tract, it is clear that plaintiffs can not recover unless the failure to obtain it was due to the fault or negligence of the defandants. The argument in support of the decree of the court below is that the fifteen-acre tract was not located as a mining claim according to law, and therefore the failure of the trustee to include it in his application for a patent worked no hurt or injury to the plaintiffs. If this position is sound, the decree should be affirmed. If, however, the validity of the location is open to serious controversy, the question was for the determination of the United States land department, and not for Wood or the trustee. The agreement was that the trustee, the attorney and legal adviser of Wood, should immediately apply for a patent to all the mining ground, and should diligently prosecute such application, Wood or his assigns to advance all moneys or expenses necessary or required therefor, and was, in effect, the same as if the property had *446been conveyed directly to Wood, under an agreement that he should, at his own cost and expense, immediately apply for a patent to the land. Unless, therefore, it was clearly apparent that an application would be futile because of the invalidity of the location, it was the duty of the trustee and Wood to proceed under the contract, and their failure to do so affords no excuse for the nonpayment of the balance due on the contract of purchase. Now, in the notice of location of the “unnamed claim,” it is described as follows : “Beginning at a point three hundred feet west and one thousand three hundred and twenty feet south of quarter corner between sections 32 and 33, township 10 south, range 46 east, Willamette Meridian, and runs two thousand six hundred and forty feet north ; thence three hundred and sixty feet- west ; thence two thousand six hundred and forty feet south ; thence three hundred and sixty feet east to place of be-' ginning, containing twenty acres.”
The statute of the United States provides that legal subdivisions of forty acres may be subdivided into ten-acre tracts (Bev. Stat. U. S. § 2330), and that placer claims on surveyed lands must conform as near as prac-' ticable to the legal subdivisions. By such legal subdivisions, the description in the notice of location of the “unnamed claim” would cover the west half of the east half of the southeast quarter of the northeast quarter, and the west half of the east half of the northeast.quarter of the -southeast quarter of section 32, and also a strip thirty feet wide, extending north and south along the east side of these two subdivisions ; in "other words, the location as made conforms in all the exterior lines to the legal subdivisions, except the east boundary includes thirty feet of the adjoining subdivisions. The error evidently occurred through making the beginning point three hundred instead of three hundred and thirty feet *447west of the east line of section 32. There is nothing in the pleadings or evidence to indicate that the location of the mining claim was not made by Brice in perfect good faith, and there is authority for the contention that it is not void because more land is covered thereby than he was entitled to take : Richmond Min. Co. v. Rose, 114 U. S. 576 (5 Sup. Ct. 1055); Thompson v. Spray, 72 Cal. 528 (14 Pac. 182); Jupiter Min. Co. v. Bodie Consol. Min. Co. (C. C.) 11 Fed. 666 ; Stem-Winder Min. Co. v. Emma & L. C. Consol. Min. Co. (Idaho) 21 Pac. 1040 ; Hansen v. Fletcher, 10 Utah, 266 (37 Pac. 480). But we deem it unnecessary to pass upon that question. It is sufficient that the location was not clearly void. Under the contract, it was the trustee’s duty to apply immediately for a patent to the land, and, at Wood’s expense, to prosecute such application with reasonable diligence; and that the result would have been doubtful is no excuse for a failure to undertake it. It is to be remembered in this connection that plaintiffs did not agree to sell patented claims, nor was the obtaining of the patent a condition precedent to the final payment. Of course, their contract must be understood as stipulating that they were the owners of the property, and entitled to sell and convey the same, but there was no agreement that they should obtain patents therefor. The application for the patent was to be made by the attorney for Wood, at the latter’s expense and for his benefit; and the provision in reference to the matter in the contract of June 19, 1897, was intended to fix the time of the final payment. If the trustee, according to the terms of the contract, had applied for a patent to the fifteen-acre tract, and it had been denied, defendants would, no doubt, have been entitled to redress on account of the failure of title to a part of the land purchased by them. But the defense in this suit is not based on a failure of title, but upon the theory *448that, because the plaintiffs did not amend their location notice so as to make the “unn’amed claim” conform to the legal subdivisions, the patent could not be obtained, and therefore the balance of the purchase price is not due. The answer further pleads a breach of the stipulation in the contract of purchase and sale that the ground would yield ten cents minimum per cubic yard. The plaintiffs allege that this provision of the contract was waived at the time of the settlement in June, 1897. But, however that may be, no evidence was offered or given on the trial showing a breach of the contract, or from which the court could determine the damages, if any, sustained by the defendants on account thereof. We conclude, therefore, that plaintiffs are entitled to a decree requiring the defendant Johns, as trustee, to pay over to them the balance on the purchase price of the property, and against the defendants Wood and the Flick Bar Placer Mining Company for their costs and disbursements.
Reversed.