tion to pre-empt said land; but, prior to that, the state surveyor general had made application to have said land listed to the state of California in lieu of certain other land; and on or about July 8, 1889, the said application was approved, and the said declaratory statement of appellant canceled. Appellant did not appeal from the order canceling said statement, or take any other proceeding in the United States land department; but, on the other hand, appellant, on August 15, 1889, made application to the surveyor general of California to purchase said land as land belonging to the state, which application was rejected "on account of the said previous application of said C. F. Wilson," and also upon the further ground that the surveyor general had not received information that the land had been listed. (It may be noticed here that appellant's said application contained the statement "that said land is not suitable for cultivation, except only small portions thereof being suitable for that purpose," but he avers in his pleadings that it was suitable for cultivation.) Appellant took no step in the state land-office toward having a contest over his right to purchase said land. He resided on the land and had improvements thereon. He filed in this action an answer and a cross-complaint; and, in the latter, in which he set up the foregoing facts, he prayed that respondent be declared to be a trustee of appeltant for said land, and that he convey the same to appellant. A demurrer to the cross-complaint was sustained. In his answer, in addition to a general denial and the averment of the facts above stated, appellant averred that the land was suitable for cultivation, and that neither Wilson nor Dreyfus resided on the land. At the trial the court heard some evidence as to the character of the land, that is, whether it was suitable for cultivation, and then instructed the jury that, under the law, it was their duty to find a verdict for respondent. Appellant asked two instructions: One generally to the effect that if at the time of Wilson's application the land was suitable for cultivation, that is, if more than one-half of all

the legal subdivisions would, without artificial irrigation, produce ordinary crops, etc., and Wilson was not an actual settler on the land, then the verdict should be for appellant; and the other to the effect that if Wilson made a false affidavit in his application as to the land being unsuitable for cultivation, and the evidence showed that it was suitable for cultivation, and Wilson was not a resident on the land, but that appellant was such resident, and otherwise qualified to purchase, then the verdict should be for appellant. These instructions were refused, and the verdict was for respondent.

A reversal of the judgment could be based only upon these two propositions, or one of them: 1. That upon the facts averred in the cross-complaint appellant can hold respondent as trustee for him of the land in contest; 2. That in defense to the action of ejectment appellant can attack respondent's patent collaterally by showing the character of the land in contest.

A person seeking to have a patentee of land declared his trustee, in the absence of any contract between the parties, must connect himself with the paramount source of title, and also show that he has prosecuted his claim with diligence. (Burling v. Thompkins, 77 Cal. 257; Doll v. Meador, 16 Cal. 295; Damrell v. Meyer, 40 Cal. 166; Kentfield v. Hayes, 57 Cal. 409; Sacramento Sav. Bank v. Hynes, 50 Cal. 195; O'Connor v. Frasher, 56 Cal. 499; Moore v. Wilkinson, 13 Cal. 478; Chapman v. Quinn, 56 Cal. 266; Buckley v. Howe, 86 Cal. 596.) Nearly all the cases cited by appellant were cases where contests as to the right to purchase had been referred by the land department to the superior court, under section 3414 of the Political Code, or where each party had in some other way acquired a status. In Hollinshead v. Simms, 51 Cal. 158, the court discusses mainly the alleged fraudulent acts of one Woods, who was the agent of Hollinshead, and does not discuss the status of Simms. As to the latter it is merely said, generally, that he had "the right, as against the government, to acquire the legal title," and that Simms was not "lacking in dili

gence in the assertion of his rights." If the case can be taken as having been decided with the status of Simms fully in view and thoroughly considered, it is not in accord with the other decisions, or with the case of Burling v. Thompkins, supra, in which it is referred to.

In the case at bar appellant has no status as claimant of the land under the United States government. After his declaratory statement had been canceled, and the land listed to the state, he took no appeal, but recognized the lands as state land, and made application to purchase it from the state. Neither has he any status as claimant of the premises as state land. When his application to purchase was rejected he took no step to contest the prior application of Wilson, of which he was informed, but slept upon whatever rights he may have had for some years until Wilson's application had progressed, first into a certificate of purchase, and afterward into a patent. It does not appear that he was kept in ignorance of his rights by any fraud of respondent or his predecessor. In Kentfield v. Hayes, su pra, a case very similar to the one at bar-it was expressly held that an application by defendant to purchase the land in contest which had been presented to and rejected by the state land department did not give him a status from which he was to hold the patentee as his trustee.

2. A defendant may defeat an action of ejectment by showing that plaintiff has no title. But where a patent, regular on its face, has been issued by the government (federal or state) for land which it owns, under a law providing for the disposal of the land patented upon the ascertainment of certain facts, the officers of the land department of the government have jurisdiction to determine such facts, and the issuance of a patent is, upon collateral attack, a conclusive declaration, as against all claiming under said government, that the facts have been found in favor of the patentee. "And this rule applies to the determination of the particular character

of the land which is the subject of the patent." This was expressly held in Gale v. Best, 78 Cal. 235, 12 Am. St. Rep. 44, where we alluded to the authorities at some length, and, basing our conclusion on decisions of the supreme court of the United States in St. Louis Smelting Co. v. Kemp, 104 U. S. 636, Steel v. St. Louis etc. Co. 106 U. S. 447, and French v. Fyan, 93 U S. 169, we declared the law to be as above stated. It would be useless to here repeat the views there expressed. (See, also, the late case of Barden v. North Pac. R. R. Co., 154 U. S. 288, and Irvine v. Tarbat, 105 Cal. 237.) These cases involved patents of the general government; but, upon principle, the rule applies with equal force to a patent of the state government. Moreover, it has been so expressly held by this court in Doll v. Meador, supra, where it was decided that "the patent is the record of the state, that the land was subject to location under the grant of the United States, and has been located," and in Ah Yew v. Choate, 24 Cal. 562, where it was held that the patent is also "a record of the judgment of the state, by its officers duly appointed for that purpose, that the conditions and characteristics of the land were not such as to constitute it mineral within the meaning of the provisions of the statute," etc.

In the case at bar appellant seeks collaterally to assail respondent's patent by showing the character of the land. The law provides that if the land be suitable for cultivation-that is, if each forty-acre tract will produce ordinary crops without artificial irrigation, etc.-then it is to be sold only to an actual settler. The respondent's predecessor sought to purchase the land upon the theory that it was not suitable for cultivation, and made an affidavit that it was not so suitable, as required by statute. Now, the contention of appellant is that he may show the patent to be void by showing that said affidavit was false because the land was suitable for cultivation. But this he may not do, because the patent is conclusive as to the "conditions and characteristics of the land." If in ejectment the plaintiff relies on a pat

CVIII. Cal.-5

ent, it is a defense to show that the patent is void on its face, or that "there is no law which authorizes such a patent under any state of facts"; but if the law provides that those parts of a large body of lands which are of a particular character shall be disposed of in a certain way, "then the land department has jurisdiction to determine the character of any part thereof, and a patent is conclusive evidence that such jurisdiction has been exercised." (Gale v. Best, supra.) And so, in the case at bar, the patent is conclusive to the point that the land was of such character as not to be suitable for cultivation within the meaning of the law, and therefore patentable to respondent. Otherwise, the possessor of a patent would have no muniment of title, and the evils depicted by Mr. Justice Field in Steel v. St. Louis etc. Co., 106 U. S. 447, would ensue.

Counsel for appellant has cited some cases where it has been held that evidence was properly allowed on the point whether certain land was swamp or overflowed or dry; but it is very evident that questions as to swamp lands are very different from those arising in the case at bar. It has always been held that the act of Congress of September 28, 1850, by which the swamp lands were given to California (and the other states) was a grant in præsenti, and at its date passed the title to the state; although it also provided that it should be the duty of the secretary of the interior to afterward send lists and plats of such lands to the governor of the state, and also. at the latter's request, issue patents of such lands to the state. (Wright v. Roseberry, 121 U. S. 488.) As the title passed by said act of 1850 to California to all the swamp land within her borders she was not compelled to wait for the platting and patenting of the same by the land department of the general government; and. as the action of said department was tardy, she proceeded herself to assert her ownership of said lands by providing for their survey and sale, and the issue of patentto the purchasers. (Wright v. Roseberry, supra.) But under these circumstances it happened sometimes that