The tention of appellants; but since plaintiff had been clothed, maintained, educated, and treated as a daughter by the Grants, it could be held that she had received full consideration for the services rendered by her. decisive factor in Owens v. McNally, 113 Cal. 444, 45 Pac. 710, 33 L. R. A. 369, was the subsequent marriage of McNally. Hence it was held that the enforcement of the contract would wrong an innocent third party. Forrester v. Flores, 64 Cal. 24, 28 Pac. 107, and Salfield v. Sutter County, 94 Cal. 546, 29 Pac. 1105, are based upon the familiar doctrine that the payment of money alone is not sufficient to justify specific performance. Flood v. Templeton, 148 Cal. 374, 83 Pac. 148. was held to be not a case for specific performance, for the reason that there was no showing as to the value of the land at the time of the contract, or that plaintiff suffered any detriment, or that the promissor gained any advantage by said contract, and also, since plaintiff forebore to press a fixed monetary demand an action at law was the proper remedy. sufficient to meet the requirement of the | Rep. 379, is rather in line with the conlaw in that regard. We proceed to notice some of the authorities upon which they rely to support this contention. Judge Story, in his Equity Jurisprudence (section 261), states the rule as follows: "But a more general ground, and that which ought to be the governing rule in cases of this sort, is that nothing is to be considered as a part performance which does not put the party into a situation which is a fraud upon him, unless the agreement is fully performed." The authorities all agree as to the rule, although it is expressed in varying phraseology. For instance, Professor Pomeroy, in section 1409 of his work on Equity Jurisprudence, says: "The ground upon which the remedy in such cases rests is that of equitable fraud. It would be a virtual fraud for the defendant, after permitting the acts of partial performance, to interpose the statute as a bar to the plaintiff's remedial right. * * * The most important acts which constitute a suflicient part performance are actual possession, permanent and valuable improvements, and these two combined." Plaintiffs have brought themselves clearly within the rule as thus announced. If it would not be a fraud upon them to withhold specific performance, then we mistake the meaning of the expression. They have not entered into the actual possession of the real property and made valuable improvements upon it; but, relying on the promise of the mother, they surrendered to her the possession and deprived themselves of the use of the property and the opportunity and means to make valuable improvements thereon. In an action to enforce specific performance of such a contract, the surrender of possession of real property by one party to the other in reliance upon the latter's promise must be considered, in contemplation of equity, a factor as persuasive as though the former had acquired possession by virtue of said contract. Of the cases cited by appellants in support of their contention, in the following specific performance was decreed: Nowack v. Berger. 133 Mo. 24, 34 S. W. 489, 31 L. R. A. 810, 54 Am. St. Rep. 663; Quinn v. Quinn, 5 S. D. 328, 58 N. W. 808. 49 Am. St. Rep. 875: Svanburg v. Fosseen, 75 Minn. 350. 78 N. W. 4, 43 L. R. A. 427, 74 Am. St. Rep. 490: Lothrop v. Marble, 12 S. D. 511. 81 N. W. 885, 76 Am. St. Rep. 626; and Kofka v. Rosicky. 41 Neb. 328, 59 N. W. 788, 25 L. R. A. 207, 43 Am. St. Rep. 685. In Dicken v. McKinley, 163 Ill. 318, 45 N. E. 134, 54 Am. St. Rep. 471, it was held that the act of statutory adoption is not sufficient to take the case out of the statute of frauds. In Shaban v. Swan, 48 Ohio St. 25, 26 N. E. 222, 29 Am. St. Rep. 517, specific performance was denied because the acts relied upon were not necessarily referable to the contract, but might have been prompted merely by benevolence and affection. Grant v. Grant, 63 Conn. 530, 29 Atl. 15, 38 Am. St. In most of the cases cited where specific performance was decreed, personal services were the basis for the action, but in some of them the conveyance of property was the consideration. There is no difference, however, in principle, if the elements of equitable cognizance are present. In the case at bar, assuming as we must, that all the facts alleged in the complaint are true, only one conclusion can be reached in consonance with the principles of equity and justice and in harmony with the best considered cases. No case cited appeals more strongly than this one to the conscience of the chancellor. There is no uncertainty as to the intention of the parties, and as to Mrs. Stewart the contract was eminently fair, just and reasonable. She received property more than 30 years ago from each of the children, of the value of nearly $1,000, upon the promise that she would leave to the promisee an indefinite amount-it might be much less than she received, and at some uncertain period-as it developed, more than 30 years thereafter. As a cold business proposition, no one would be so liberal as were the children. They deprived themselves of valuable property at a time when they probably could have used it to great advantage and profit for an uncertain amount that they might never live to enjoy. In fact, the mother did survive one of them. The circumstances of the transaction reveal clearly the adequacy of the consideration and cannot be aided by any comment in which we might indulge. Again, the mother received real property as a part of the consideration, and the peculiar value of such property is a decisive element in actions for specific performance. If the children had parted simply with personal property, under the decisions it might be that application would have to be made to the law side of the court; but here no such contention can be maintained. If the plaintiffs did not present a case for specific performance, then it is idle to assert that it is ever proper to decree specific performance of an oral agreement to devise property to a particular individual. The decision of the court below upon the admitted facts was just and equitable, and a contrary view is intolerable in contemplation of fair dealing and good conscience. The judgment is affirmed. We concur; CHIPMAN, P. J.; HART, J. (6 Cal. App. 139) EWBANK v. MIKEL. (Civ. 338.) (Court of Appeal, Third District, California. July 30, 1907.) 1. PUBLIC LANDS-CONTEST-ACTION-LIMITATION. Under Pol. Code, § 3415, providing that, after an order is made by the surveyor general referring to the court a contest concerning the purchase of public lands, an action may be brought to determine the contest, and that the production of a certified copy of the entry made by the surveyor gives the court complete jurisdiction, and section 3417, providing that, unless the contestant commences his action within 60 days after the order of reference is made, his rights in the premises and under his application to purchase cease, the limitation begins to run from the making and entry of the order, and not from the time contestant is notified thereof, or from the date of the certified copy of the entry. 2. SAME ATTACKING PATENT SUIT BY ANOTHER THAN THE STATE. A contestant of the right to purchase public lands having failed to bring his action to determine the contest within 60 days of the making of an order by the surveyor general, referring the contest to the court, so that under Pol. Code, § 3417. his rights in the premises and under his application to purchase had ceased, and he not having taken any steps to acquire any further or new right, and a patent having been issued to the contestee, he is not in privity with the state by reason alone of his occupation of the land as a settler, with the intention of purchasing it, so as to authorize his maintaining an action attacking the patent, on the ground that it was obtained by fraud, and for a decree, and that the patentee holds the title in trust for plaintiff. Appeal from Superior Court, Kings County; M. L. Short, Judge. Action by Thomas Ewbank against J. A. Mikel. Judgment for defendant. Plaintiff appeals. Affirmed. Robert W. Miller, for appellant. H. P. Brown and Chas. G. Lamberson, for respondent. CHIPMAN, P. J. Action to obtain a decree that the legal title to certain state land, evidenced by a patent from the state to the defendant, is held by defendant in trust for plaintiff. A general demurrer to the complaint was sustained without leave to amend, and plaintiff appeals from the judgment dismissing the action. The land in question is the east half of section 33, township 21 south, range 19 east, Mount Diablo base and meridian, being land uncovered by the recession of the waters of Tulare Lake, and which thus became state lands. It is averred in the complaint that said section 35 was surveyed and sectionized and the survey made to conform to the United States surveys, and a plat of the survey, with copy of the field notes, duly filed in the office of the state surveyor general on June 7, 1899, and said land became subject to sale by virtue of the act approved March 24, 1893. St. 1893, p. 341, c. 229. On July 15, 1903, defendant filed in the office of the state surveyor general his application to purchase the whole of said section, which was approved by said surveyor general, and on November 27, 1903, a certificate of purchase of said lands was issued to defendant. It is averred that in certain essential particulars, specifically set forth, the affidavit of defendant accompanying his said application was untrue; that on June 12, 1905, said land was vacant and unoccupied, and on that day plaintiff entered into possession of the east half of said section, with the intention of settling thereon, and pursuant thereto constructed a dwelling thereon; that on said day he filed his application with the said surveyor general to purchase said land, and at the same time made protest against the issuance of further evidence of title to defendant, and made demand that the contest thereby created be referred to the superior court of Kings county for adjudication of the respective rights of the parties to purchase said east half of said section; that on June 30, 1905, the surveyor general made and entered of record an order of that date referring the contest to said court, which said order is fully set forth in the complaint; that thereafter, to wit, on July 11, 1905, the said surveyor general caused the said profert of reference to be certified and plaintiff's attorney notified thereof by letter of the same date; and that said profert was received and filed in the office of the clerk of said court on July 13, 1905. It is then averred that with intention to deceive the surveyor general into believing that "full 60 days had elapsed since the issuance of the said profert and order of reference aforesaid." defendant, on August 30, 1905, caused the county clerk of said county "to certify to the said surveyor general that, up to that date, no action had been commenced in the said su perior court" by plaintiff herein, in the matter of said conflicting claims, which said certificate defendant telegraphed to said surveyor general and demanded that a patent issue to defendant; that thereafter the said surveyor general issued to said defendant a patent for said land; that resting in the belief that he had until September 10, 1905, or CO days after July 11, 1905, in which to commence his action in said court, plaintiff, on September 6, 1905, commenced said action. There is no allegation of intentional wrongdoing on the part of the surveyor general in the issuing said patent, but only that he was deceived by said certificate of said clerk and by the records in his office into the belief that full 60 days had elapsed since said order of reference and profert were made. The present suit was commenced September 21, 1905. Assuming the averments of the complaint to be true, as we must, it may be conceded, as contended by plaintiff, that defendant's application was and is invalid; and that, the contest having been referred to the superior court for determination, the surveyor general was without authority to issue a patent, until the final judgment of the court had been duly certified to him. It must also be conceded that equity will control a patent in the hands of one who has procured its issue to him in fraud of the rights of the rightful owner. It was so held in McFaul v. Pfankuch, 98 Cal. 404, 33 Pac. 397, and Mery v. Brodt, 121 Cal. 338, 53 Pac. 818. Thus much conceded, still the judgment on the demurrer must be affirmed. Section 3417 of the Political Code is as follows: "Unless the party contestant commences his action within sixty days after the order of reference is made, his rights in the premises and under his application cease." The contest is certified to the court when the order of the surveyor general, as register of the land office, is made and entered in the proper record book. The 60 days mentioned in the statute begin to run when such order is made and entered, and the contestant may at once commence his action. The certified copy of the entry of the order may not be furnished until the trial, as it is but evidentiary of the fact that the order of reference was made. Sherman v. Wright, 133 Cal. 539, 65 Pac. 1096, where it was said: "Hence it is plain that the order of reference and the entry thereof constitute the act of certifying the contest to the district court." The contention of appellant that the 60 days began to run from the date of the certified copy of the order of reference sent to plaintiff's attorney finds no support in any proper construction of the statute or in the decisions of our courts. Plaintiff instituted the contest and was bound to take notice of the entry of the order of reference in the surveyor general's office and govern himself accordingly. Plaintiff is in error in his contention that it was the duty of the surveyor general to notify plaintiff of the order of reference, and that until he did so the time prescribed by the statute did not begin to run. It is true that section 3415 provides that complete jurisdiction of the court attaches upon the filing of the copy of the certificate of reference with the clerk, but jurisdiction may also attach by the filing of the complaint before such filing of the certificate. Section 3415 cannot be held to modify or change in any way the plain provisions of section 3417. The running of time under the latter section, 91 P.-43 as a statute of limitations, in no wise de pends upon the jurisdiction of the court. We are next to consider the effect upon plaintiff's rights through his failure to commence his action in time. This is very clearly pointed out in Greenwade v. De Camp, 72 Cal. 448, 14 Pac. 177: "The effect was to work a forfeiture of all rights of plaintiff, both in the application and in the premises." He could have filed another application, and thus have acquired a right (Id.), but he could not, upon an application thus forfeited, successfully pursue his rights under the action commenced by him after the statute had run against his right to commence the action. Conceding that the averments of defendant's fraud are sufficient in law, it was still incumbent upon plaintiff to connect himself with the paramount source of title to entitle him to bring the action. Defendant's patent may be invalid by reason of the facts averred in the complaint, and yet this fact would be of no avail to plaintiff as a stranger to the title. Mery v. Brodt, 121 Cal. 332, 53 Pac. 818. There must be a privity of title between plaintiff and the state. He must possess some right, title, interest, or claim in or to the lands acquired before. the final transmission of title and which is recognized by the laws of the state as valid. Robinson v. Forrest, 29 Cal. 320. In Plummer v. Brown, 70 Cal. 546, 12 Pac. 465, the court said: "To entitle the alleged owner, however, to equitable relief, he must show that he occupies such status as entitles him to control the legal title." But we have seen (Greenwade v. De Camp, supra) that plaintiff forfeited all right to the land and to his application by his failure to commence his action in time, and it is not shown that he took any steps to acquire any further or any new right. He has therefore failed to state a cause of action. Appellant contends that he is in privity with the state by reason alone of his occupation of the land as a settler, with the intention, as he alleges, of purchasing it, citing Perri v. Beaumont, 91 Cal. 30, 27 Pac. 534; also, Hinckley v. Fowler, 43 Cal. 64. In the case of Perri v. Beaumont, supra, plaintiff by his complaint showed that he was an actual settler upon the land, having made valuable improvements thereon, and being desirous of purchasing the premises, and that he possessed all the requisite qualifications to purchase at the time he filed his application; but he failed to show that the land was surveyed at the date of his application to purchase. He also showed that defendant's application and certificate of purchase were invalid, and that he had no right to a patent. The trial court sustained a general demurrer to the complaint, and, plaintiff failing to amend his complaint, gave judgment for defendant. Upon appeal the court held that plaintiff had the right to institute the contest, and though not himself entitled to judgment, as he failed to allege that the land was surveyed, he had sufficient interest to entitle him to prevent defendant from obtaining a patent; that by its judgment the trial court placed defendant in position to obtain a patent which would have been conclusive against plaintiff; that the demurrer was improperly sustained; and that plaintiff should have leave to allege by amendment that the land was surveyed when he made his application. If plaintiff here had commenced his action in time, thus preserving his right under his application, the case of Perri v. Beaumont would apply. But suffering a forfeiture of all his rights, by his own act. he ceased to be in privity with the state. His status was altogether different from that of Perri in Perri v. Beaumont, who was a qualified purchaser, and who was in court upon a complaint insufficient in one respect as to his own rights, but sufficient to compel an adjudication of defendant's rights. The right to set aside the patent rests alone with the state. People v. Stratton, 25 Cal. 242: Carder v. Baxter, 28 Cal. 99: Peabody v. Prince, 78 Cal. 511, 21 Pac. 123. The judgment is affirmed. (6 Cal. App. 93) ALBERGER v. KINGSBURY, Surveyor General. (Civ. 356.) (Court of Appeal. First District, California. July 10, 1907. Rehearing Denied by Supreme Court Sept. 5, 1907.) 1. PUBLIC LANDS-GRANTS TO STATE_FOR SCHOOLS LANDS IN RESERVATION - LIEU LANDS. Land is within a reservation, within Rev. St. U. S. § 2275 [U. S. Comp. St. 1901, p. 1381], appropriating and granting to and authorizing the state to select other lands where the school sections are within any reservation, provided. however, that the state shall not be prevented from awaiting the extinguishment of the reservation, where it has been withdrawn by the Secretary of the Interior "pending determination as to the advisability of including the same within a forest reservation." 2. MANDAMUS-TO SURVEYOR GENERAL-COMMUNICATING WITH UNITED STATES LAND OFFICE. The surveyor general being, under Pol. Code, § 3398, the general agent of the state for location in the United States land office of the unsold portions of the land granted to the state for public schools and lands in lieu thereof, and it being made his ministerial duty by such section, when application for purchase of any of said lands is made to him, to communicate with such land office and ask that the land described in the application be accepted in part satisfaction of the grant under which it is sought to be located, mandamus will lie to compel him to receive an application for purchase of such lands and make such communication to and request of such land office. [Ed. Note. For cases in point, see Cent. Dig. vol. 33. Mandamus, § 184.] Application by William C. Alberger for writ of mandamus to W. S. Kingsbury, surveyor general. Writ granted. F. D. Brandon, for petitioner. C. S. Webb, Atty. Gen., for respondent. COOPER, P. J. This is an original application to this court for a writ of mandate to compel the defendant to receive and file the plaintiff's application to purchase from the state of California section 5 of township 26 N., range 17 E., M. D. M., being in Lassen county, state of California, and to thereupo make selection and location in the proper United States land office, on behalf of plaintiff, as lieu land, of the lands so applied for by plaintiff, and to make such selection and location in lieu of section 16, township 42 N., range 3 E., M. D. M. Plaintiff alleges in his complaint his qualifications to purchase state school land, sets out a copy of his application, and also alleges that he tendered said application to the defendant with the proper fee for filing the same; that the land described in the application has been regularly surveyed and sectionized by the United States, and the township plat, showing that said land had been so regularly surveyed and sectionized, had been more than five years on file in the proper United States land office; that said section 16, township 42 N.. range 3 E., for which the lands applied for are desired to be taken as lieu lands, is unsurveyed public land of the United States. * It is stipulated that the following are the facts on which this controversy hinges, to wit: "That the question, and only question. intended by the parties to be presented by this record, is whether the lands or any of the lands described in the letter dated December 12, 1904, hereinafter specifically set forth, are located within a reservation, within the meaning of the act of Congress which 'is known as section 2275 of the Revised Statutes [U. S. Comp. St. 1901, p. 13811. That on the 12th day of December, 1904, James Wilson, the then Secretary of Agriculture, wrote that certain letter which is and was in words and figures as follows, to wit: 'Department of Agriculture, Office of the Secretary, Washington, D. C., Dec. 12, 1904. The Honorable the Secretary of the Interior-Sir: A field examination of the following described lands in the vicinity of Mt. Hoffman in the state of California has recently been made by the Bureau of Forestry, and the region as a whole has been found to be well adapted to forest reserve purposes. The best of the timber lands are rapidly passing into private ownership through lieu selections and timber and stone entries, and. in order that title to the remaining public lands may rest with the government until further action is decided upon, I have the honor to recommend that all the vacant unappropriated public lands in the following described townships and parts thereof be temporarily withdrawn from settlement at the earliest practicable date: * * T. 42 N., R. 3 E., the entire township, all numbered from the Mt. Diablo base and meridian. Very respectfully. Your obedient servant, James Wilson. Secretary. It is further adnitted that on the 13th day of December, 1904, E. A. Hitchcock, the then Secretary of the Interior, indorsed on said letter that certain indorsement which is and was in words and figures as follows, to wit: 'J. S. P. A. M. Dept. of the Interior, Dec. 13, '04. Respectfully referred to Com. Gen. Land. The public lands in the prescribed areas are hereby temporarily withdrawn from disposition under the public land laws, and the Comr. is directed to instruct the local offices in the premises, immediately, by wire, and report action, with return of letter. E. A. Hitchcock, Secretary.' It is further admitted that on the 13th day of December, 1904, W. A. Richards, the then Commissioner of the General Land Office, wrote that certain letter which is and was in words and figures as follows, to wit: 'Department of the Interior, United States Land Office, Washington. D. C., Dec. 13, 1904. Register and Receiver, Redding, California-Gentlemen: On December 13, 1904, the Secretary of the Interior temporarily withdrew all the public lands in the below described areas from settlement, entry, sale, or other disposal, except under the mineral laws, pending determination as to the advisability of including the same within a forest reservation. The lands so withdrawn are as follows: ** Township 42 N., range 3 E., M. D. M. Note this withdrawal upon the records of your office. Very respectfully, W. A. Richards, Commissioner.' *** It is further stipulated and agreed that said letters and indorsements thereon are still in full force and effect, and that the same have never been altered, withdrawn, or modified. It is further stipulated and agreed that at all times mentioned in the complaint and petition of plaintiff the Commissioner of the General Land Office had adopted, and the Secretary of the Interior had approved, and that there were in full force and effect, certain regulations governing selections of indemnity school lands; that, lands; that, among others, said regulations contained the following provisions and regulations: The cause of the loss in each case must be specifically stated. If caused by an entry based upon a settlement claim initiated prior to survey. the number of the entry must be given. If occasioned by a reservation of the land, entitling the states to indemnity, the date. name, and purpose of the reservation must be stated. If the loss occurs by reason of the fractional character of the land, it must be set forth."'" It is said in the points and authorities that the entire case depends and turns upon the proper construction of section 2275 of the Revised Statutes. Said section, so far as material here, is as follows: "Where settlements with a view to pre-emption or homestead have been or shall hereafter be made before the survey of the land in the field, which are found to have been made on sections 16 or 36, those sections shall be subject to the claims of such settlers, and if such sections or either of them be or shall be granted, reserved or pledged for the use of schools or colleges in the state or territory in which they lie, other lands of equal acreage are hereby appropriated and granted, and may be selected by said state or territory in lieu of such as may be thus taken by pre-emption or homestead settlers. And other lands of equal acreage are also hereby appropriated and granted, and may be selected by said state or territory where sections 16 or 36 are mineral lands, or are included within any Indian, military or other reservation, or are otherwise disposed of by the United States." (The italics are ours.) The question is as to whether or not the said section 16, township 42 N., range 3 E., has been included within a reservation within the meaning of the italicized clause of the above section. The said section 16 has not been included in any Indian or military reservation, but it has been kept back or reserved "pending determination as to the advisability of including the same within a forest reservation." The words "other reservations" are evidently used in a broad sense in the statute. The word "reservation" is defined in the Standard Dictionary as "that which is reserved, kept back, withheld." The said sixteenth section, to which the state would be otherwise entitled, has been by the proper authorities of the United States-the Land Department-kept back, withheld, and reserved. It has been reserved with a view to including it in a permanent forest reserve. The state is not now entitled to it, because the United States has seen fit to reserve it for its own uses. It is no answer to this to say that the reservation may not be made permanent, and that the state may yet be entitled to the land. That might be said as to any other kind of reservation-for military purposes, for Indians, or any other purpose. A reservation is a reservation, no matter what may be the purpose, nor for how long a time the reservation may continue. The statute does not fix a time during which it shall continue, and we are not at liberty to do so. In our opinion the question as to time refers only to the time when the state desires to take the land. Can the state take the section in place now? Evidently not, because it has been reserved and withheld from sale. This view is made clear by the concluding portion of the section, which is as follows: "Provided, however, that nothing herein contained shall prevent any state or territory from awaiting the extinguishment of any such military, Indian or other reservation, and the restoration of the lands therein embraced to the public domain, and then taking the sections 16 and 36 in place therein; but nothing in this proviso shall be construed as conferring any right not now existing." The abovequoted proviso gives the state the right to await the extinguishment of any reservation which includes a sixteenth or thirty-sixth section, and then to take the section in place; but that is a matter solely for the state. It |