
    AARON D. TREADWAY, Respondent, v. JONAS WILDER, Appellant.
    Objections to Defective Pleading — When and How to be Taken. Where a party relying upon a pre-emption right pleaded the facts giving such right so defectively that a demurrer to it would clearly have been sustained; but the opposite party, instead of demurring, made up an issue as of fact on such pleading, and on the trial objected to proof of the facts, on the ground of insufficiency of the plea: Held, that the practice of making up an issue as of fact in this way and then attempting to take advantage of the unwary pleader, by motion or objection on the trial, was reprehensible, and that the exclusion of the evidence offered under such circumstances was error.
    Technical Defects of Pleading — Oppobthnitst to Amend to be Affoeded— Spibit of the Code. When a pleading contains a defective statement of a cause of action, as distinguished from a statement of a defective cause of action, the defect, if relied on by the opposite party, should he pointed out by demurrer so as to afford an opportunity to amend — neither, the spirit of the code nor properly speaking its practice allowing a substantial right to be cut off by a mere technical judgment without giving such an opportunity.
    Contbacts between Pbe-emptionebs — Rule in Rose v. Teeadwav, 4 Nev. 455. The rule announced in Hose v. Treadway, 4 Nev. 455 — to the effect that a contract, by which one party entitled to pre-empt certain land agrees to make no claim in consideration of which the other party agrees to pre-empt a larger tract and after obtaining title to convey the smaller tract to the first party, is neither in contravention of the pre-emption laws nor within the statute of frauds — may be considered to have become a rule of property in this State.
    
      Effect of Deed under Congressional Town-site Act. It seems that a deed made by a trustee purporting to act under the law of congress of May 23,1844, providing for the disposition of town-sites to the occupants is not conclusive in its effect; and if given to one not an occupant or having the right of occupancy as contemplated, that fact may be shown and the deed in such case will fall, as absolutely void and of no effect.
    Defense to Ejectment on Town-site Trustee’s Deed. Though an occupant of a town lot, by neglecting to present his claim in accordance with the statute relating to town-sites, may be barred of the “ right of claiming or recovering such land or any interest or estate therein,” (Stats. 1866, 54, Sec. 4) there is nothing to prevent him from showing, in defense to an ejectment by a person who procures a deed, that such plaintiff has no title and from thus protecting his possession.
    Appeal from tbe District Court of tbe Second Judicial District, Ormsby County.
    Tbis was an action of ejectment for a lot of about four acres of land on Minnesota Street in Carson City. Tbe cause was tried before a jury, wbicb rendered a general verdict for plaintiff and a special verdict tbat defendant by bimself and tenants bad been in tbe possession and occupancy of tbe land ever since May 10, 1866 — wbicb appears to bave been tbe date of tbe patent of tbe United States to Judge S. H. Wright, as trustee for tbe town-site of Carson City. Tbe facts more especially bearing upon tbe points decided are stated in tbe opinion.
    There having been a judgment for plaintiff, tbe defendant appealed.
    
      T. W. W. Davies, for Appellant.
    I. Defendant proved tbat be and bis grantors bad been in tbe occupancy and possession of tbe land described in tbe complaint since 1859; and tbat since 1861 be bad continuously resided on it with bis family, having bis dwelling-house thereon and cultivating tbe ground. He then offered to prove tbat a portion of tbe land described in tbe complaint was embraced in a forty acre tract, partly occupied by bimself and partly by plaintiff; tbat be and plaintiff, each having tbe qualifications of pre-emptioners, entered into an agreement by wbicb defendant was to suffer plaintiff to preempt, who, in consideration of tbe defendant’s desisting from contesting Ms right, was after obtaining the title to deed to defendant so much of said forty acres as was situated within his enclosure upon the payment of a proportional part of the expenses. The plaintiff objected to the introduction of any testimony as to the verbal contract on the ground that, if entered into, it was in contravention of the pre-emption laws and within"the statute of frauds. The court below excluded the testimony and in doing so, as we contend, committed error.
    The relinquishment of his right of .pre-emption, the forbearing to put plaintiff to the expense of a contest in the land office, and the promise to pay money, very far remove the contract from the nudum pactumi contended for by plaintiff. Lohler v. Folsom, 1 Cal. 207; Stafford v. Inch, 7 Cal. 490; 13 .Wis. 321; 16 Wis. 140; 16 Wis. 202; 27 111. 93. The statute of frauds will never, in equity, be allowed to operate as a protection to fraud; and for the purpose of showing that a fraud had been committed, or. is being attempted, parol evidence will be admitted, even against the words of the statute. Hidden v. Jordan, 21 Cal. 92.
    As to the pre-emption laws, no act of congress was violated by such agreement. When, by an agreement between settlers, each secures the precise lands that he has occupied, cultivated, and improved, the object of the pre-emption laws of congress is attained; and if, under such agreement, one acquires the legal title for another’s land, a trust results which a court of equity will enforce. Rose v. Treadway, 4 Nev. 459; McCoy v. Hughes, 1 Iowa, (Greene) 371; Broolcs v. Ellis, 3 Iowa, (Greene) 258; Snow v. Ilannery, 10 Iowa, 318; Fischer v. Morlich, 13 Wis. 321; Stephenson v. Smith, 7 Mo. 619; Groves’s Heirs v. Fulsome et al., 16 Mo. 549; Douglas v. Wiley, 15 111. 576;' FranhUn v. McFlynn, 23 111. 91. '
    II. The court below erred in awarding the land described in the deed of S. H. Wright to A. D. Treadway to plaintiff, the proof being that at the time of the execution of said deed (January 9, 1867) defendant was occupying if, residing in a dwelling-house thereon with his family, haying the same enclosed by á substantial fence under cultivation and with improvements thereon worth $3000; and that plaintiff had no interest in nor claim upon said land, had never owned or occupied the same or any part thereof, and was never authorized by the defendant, the occupant, to purchase said land from the trustee, S. H. Wright. The act of congress under which that deed purports to derive its efficacy provides that the entry of town-sites shall be “in trust for the several use and benefit of the occupants thereof, aceording.to their respective interests.” The law recognizes no other proprietors except actual occupants; and the land department at Washington will not recognize or protect claims or interests of any other persons than occupants. 1 Lester L. L., 441, 436, 737; 2 Lester L. L., 312. The act of congress itself provides that any act of the trustees not made in conformity to the rules and regulations shall be void and of none effect. 5 U. S. Stats, at Large, 567. The deed to plaintiff was therefore not issued in conformity to law, was a fraud upon the rights of the public and of defendant in disposing of said land without offering it for sale to the highest bidder; and under the act of congress it was “void and of none effect.”
    III. The action of ejectment is a possessory action. It was shown by the evidence that the defendant has been in the possession of the land since 1859, and he is now entitled at least to the possession. Brief of Ellis & Sawyer, Point III, Bose v. Treadway, 4 Nev. 456;
    
      ElUs & King, for Respondent.
    I. The answer does not set up any valid defense to the action. It fails to allege that defendant was in a position and possessed the requisite qualifications, at the time of the alleged contract, to pre-empt the land. Unless he was a qualified pre-emptioner under the law of 1841, he was not in a position to exact from, or take advantage of, any promise of plaintiff to convey after patent.
    II. The statute of frauds clearly applied unless a trust was raised by implication at law. But as the defendant was not qualified as a pre-emptioner, lie has not been placed in any worse position by the failure of plaintiff to convey than he would have been had plaintiff not agreed to convey. The contract was entirely a nudum pactxito, utterly without consideration, unless defendant was not only a qualified preemptioner but so situated with reference to the land in question that he could pre-empt it.
    III. As neither ultimate nor probative facts were stated in the answer, there was no error in excluding the proffered testimony, especially when the proffer fell short of the answer.
    IY. As to the deed from Judge Wright, our position is that as defendant failed to present his statement in writing to the district judge, he is barred from asserting any claim to the land, in virtue of his occupancy, that fact alone not giving him the right to the deed. Stats. 1866, 54, Sec. 4. The deed is conclusive unless obtained by fraud, and of that there is no allegation.
   By the Court,

Whitman, J.:

To respondent’s complaint, in an action for the recovery of real property, appellant pleaded, or attempted to plead, an equitable defense and prayed equitable relief. The respondent relied upon two muniments of title for recovery. Eor a portion of the land, (what portion is not shown by the transcript,) he presented a patent from the United States; for the residue, a deed made by Judge S. H. Wright, acting as trustee under a statute of this State purporting to be passed in accordance with the c 1 act for the relief of citizens of towns upon lands of the United States, under certain circumstances, ” approved May 28, 1844.

With regard to the patent appellant pleaded thus: “Defendant' further answering avers that the balance of said tract of land was, at the time it was purchased and first occupied by the defendant, government land of the United States, and that on the —— day of-1866, said plaintiff wrongfully and unlawfully pre-empted the tract of land, including the premises described in the complaint, and has wrongfully and unlawfully received a patent from the government of the United States for the same. That at the time said plaintiff made the application to pre-empt said tract of land, said defendant was residing upon and had the improvements upon and was cultivating the tract of land described in the complaint as aforesaid; and that the same was pre-empted against the right and interest of this defendant. Defendant avers that prior to and since the pre-emption of said- tract of land by plaintiff as aforesaid, said plaintiff, for and in consideration of the rights of the defendant in and to the same, promised and agreed, upon the obtaining of the patent from the government of the United States, to deed to the said defendant that portion of said land described in the complaint, upon the payment by the defendant what the same cost, to wi’t: one dollar and twenty-five cents per acre; and for the further consideration for the deed from plaintiff to the defendant, that the defendant would not contest with the plaintiff the right to pre-empt said tract of land — the defendant, under the law of the United States, having the legal right to pre-empt the same. And for the agreement and promises as aforesaid, the defendant did not contest with said plaintiff for the pre-emption right to the same, but allowed the plaintiff to pre-empt the same. Defendant further avers that on or about the 28th day of March, A.D. 1870, he tendered to the said plaintiff twenty dollars in gold coin of the United States, and demanded of the plaintiff a deed for the tract of land as described in the complaint, and that said plaintiff did then and has ever since and does now neglect and refuse to deed to the defendant said tract of land; said sum of twenty dollars being more than sufficient to pay for said land and all expense of making deed to the same; that said money tendered as aforesaid has always been ready for said plaintiff and is brought into court to be paid to the said plaintiff upon the making of the deed as aforesaid. ”

Evidence was offered in support of this plea, which upon objection of respondent was excluded. The plea is alleged to be insufficient, because it does not state tbe facts wbicb it would be necessary to prove to constitute one a pre-emptioner.

It has been beld in California tbat one who-relies upon a pre-emption must plead tbe facts giving tbe right. People v. Jaclcson et al., 24 Cal. 630; but tbis was after demurrer and refusal to amend. Tbis court bas reproved tbe practice of making up issues as if of fact, and tb'en attempting to take tbe advantage of tbe unwary pleader by motion or objection on trial. Cal. State Tel. Co. v. Patterson, 1 Nev. 151.

Tbis case comes fairly witbin tbe reason of tbat last cited, admitting tbe pleading to be radically defective; but it will be seen upon comparison to differ from tbe California case in tbis, tbat here some of tbe constituent facts underlying tbe right to pre-empt are stated; i. e., residence and improvement; so it falls witbin tbe rule governing what is called a defective statement of a cause of action, as distinguished from a statement of a defective cause of action» There is in tbe portion of tbe pleading before quoted, an attempt to set up a cause of action, wbicb if properly pleaded and proven might have entitled tbe appellant to tbe relief claimed. Upon demurrer tbe pleading would have been beld bad, but tbe defect pointed out could have been remedied .by amendment. No such opportunity was given, and a technical judgment may have cut off a substantial right; such is not tbe spirit of tbe code, nor, when properly interpreted, its practice. Masten et al. v. Marlow et al., 65 N. C. 696; White v. Spencer, 14 N. Y. 247; Brown v. Richardson, 20 N. Y. 472; Oliver v. Depew, 14 Iowa, 490.

Tbe evidence offered should have been received unless objectionable otherwise; and tbis brings up tbe second objection thereto, tbat it tended to sustain a contract within tbe statute of frauds and opposed to federal legislation. As to tbe latter proposition, tbe contrary bas been beld in tbis State and may properly be considered to have become a rule of property, of wbicb it should be said stet. Rose v. Treadway, 4 Nev. 455. Upon either point or both, tbe weight of authority is against respondent. Hidden v. Jordan, 21 Cal. 92; McCoy v. Hughes, 1 Iowa, (Greene) 371; Brooks v. Ellis, 3 Iowa, (Greene) 258; Snow v. Flannery, 10 Iowa, 318; Fischer v. Morlick, 13 Wis. 321; Stephenson v. Smith, 7 Mo. 619; Groves's Heirs v. Fulsome et al., 16 Mo. 549.

With reference to the error assigned, or rather attempted to be assigned, to the action of the court upon the other branch of respondent’s title, nothing authoritative can be 'decided, because the record does not properly present the question; but as the case will probaby be retried, it may not be amiss to say that it would seem that the deed of the trustee is not conclusive. If not given to an occupant or one having the right of occupancy, that fact maybe shown; and then the deed falls, as absolutely “void and of no effect.” The federal statute of 1844, under which the trustee purports to have acted in this instance, provides for the disposition of town-sites to “occupants” by a trustee or trustees acting under rules to be established by the proper legislature; also, “that any act of said trustees not made in conformity to the rules and regulations herein alluded to shall be void and of none effect.”

The statute containing the rules and regulations applicable here says that the property shall be deeded by lot, block, share, or parcel “tothe person or persons who shall have, possess, or be entitled to the possession or occupancy thereof, according to his, her, or their several and respective right or interest in the same, as they existed in law or equity at the time of such entry of such lands, or to his, her, or their heirs or assigns.” Stats. 1866, p. 54, Sec. 2. It is further' ordered that lands not so deeded shall be sold at public auction, and the proceeds devoted to certain purposes. If, then, respondent was neither an occupant, nor had the right of occupancy, he was not entitled to receive a deed from-the trustee, and the same was “void and of none effect, ” as having been made contrary to the rules and regulations by the legislature established. This the appellant would have the right to prove; though not to put title in himself as the real occupant entitled to the deed of the trustee, for he is barred of all right by section fourth of the act, lie having presented no statement of claim within the specified time; the act, as to such neglect, reading, “and all persons failing to sign and deliver such statement within the time specified in this section shall he forever barred the right of claiming or recovering such lands, or any interest or estate therein, or in any part, parcel, or share thereof, in any court of law or equity.”

But although so barred, the proof would be competent to show that respondent has no title, in which case he must fail of recovery for the land described in the trustee’s deed, as that must be had not upon the weakness of appellant’s but upon the strength of his own title. He relies in this case upon strict title. If in any manner it can be shown that such has no existence, that fact inures to the protection of appellant in peaceable possession, though it may not show any affirmative right .or title in him.

The judgment is reversed and the cause remanded for a new trial.

By Garber, J.,

specially concurring:

I concur in the judgment and in the opinion of Judge Whitman, in so far as it maintains the admissibility of the testimony excluded. To what he has said, it may be added that the pleading was so framed as to show the nature of the particular facts intended to be proved. Consequently, the plaintiff can not say that he was surprised by a case which he could not be prepared to meet. Mitford’s Ch. PI. p. 46, (note i.); 2 Y. & J. 67; 3 Greenleaf’s Ev. p. 359-60. As to the conclusiveness of the deed of Wright, trustee, I have not investigated that question.  