fied the cattle as the very same which were seized by the plaintiff in this action. The question of identity could have been settled by parol proof, and by nothing else. In this case, the return was not the only evidence of the nature and description of the property. The property was taken into the possession of the sheriff and could thus be identified by parol proof. In some states there is a provision by statute that the sheriff may dispense with the taking of the attached property into his possession in case it is bulky and ponderous, by leaving of record an attested copy of the writ, and of his return of such attachment, thereon; and, in such a case, it would be important to have the property described with greater particularity and exactness, since it might fall into the hands, or under the control of third persons. The property in this case, however, was held in the possession of the sheriff, and there could be no mistake as to its identity.

In Darling v. Dodge, 36 Maine, 370, is to be found a parallel case to the one at bar. In that case the return of the officer was, that he had attached "sixty cords of soft cordwood, more or less, now lying near the western end of the bridge leading over McHard's stream." It appears from the evidence that the wood consisted of pine and spruce and white birch and white maple, intermingled together, in proportion of about two-thirds of spruce and pine and one-third of white birch and white maple; that it was all cut from the same land and at the same time, and hauled intermingled, without separation of one kind from the other, and that it continued so intermingled till it was taken away and sold by the defendant, after the attachment. For that taking and selling the suit was brought. The court say: "An attachment of personal property, like that in controversy, cannot be made by simply endorsing a return thereof on the writ. It is the duty of the officer to be present at the place where it is situated, and take it into his possession, in order to justify him to make his return, that it had been attached. * * * The return of the officer is the evidence that the property referred to therein has been attached. But parol evidence is competent to show that the property attached, and that in dispute, is identical. * * * The attachment may be valid, although the return may not be so specific in the description of the property as to render it certain what was really taken by virtue of the writ. Parol evidence to settle such a question may with propriety be adduced. *** In the case at bar it was essential to the maintenance of the action, that it should appear in some manner that the wood taken by the defendant was the same which had been attached in the writ." It was left to the jury to determine whether the attachment embraced all the different kinds of wood, pine, spruce, birch and maple, or only pine and spruce, the "soft wood."

In Drake on Attachment, section 210, it is said: "Where an officer justifies under an attachment, a misdescription in his return of an article of personal property attached by him, will not vitiste the attachment, if the appearance and use of the article are such

that it may have been naturally in good faith, so misdescribed. And this is not a question of law to be decided by the court, but of fact, to be tried by a jury:" See Briggs v. Mason, 31 Vt., 433. The object of the statute, which requires a return to a writ of attachment to be specific in the description of property attached, and to be made a public record, is more particularly to protect attaching creditors in cases where the sheriff does not retain the possession of the property; and is intended to supply the same information to a subsequent attaching creditor or purchaser that might be obtained by such a person by seeing the property in the actual possession of the sheriff under the writ, so that thereby he might be put upon inquiry as to a prior claim. In the case at bar, the property was in the actual possession of the sheriff; could be seen and identified as that which had been levied upon. There could be no mistake about that fact; and it was proper that it should appear in evidence that it was the identical property in controversy.

Judgment reversed and cause remanded for a new trial.

SUPREME COURT OF OREGON.

RICHARDS v. SNIDER ET AL.

Filed January 19, 1885.

CONTRACT HELD TO HAVE BEEN EXECUTED.-Upon a review of the evidence, held that the written contract sought to be specifically enforced in this action was executed by the defendant.

PRE-EMPTION SALE OF CLAIM WHEN VALID.-A pre-emptor who has entered a pre-emption claim, may transfer the same, before patent issues, if at the time of sale he has a vested interest in the claim.

BONA FIDE PURCHASER-PAYMENT OF CONSIDERATION.-To constitute the defense of a bona fide purchaser, as against a prior equity, the party relying thereon must plead and prove that his consideration money was bona fide and truly paid, independently of the recitals in his deed.

A PURCHASER UNDER A QUIT-CLAIM DEED is not a bona fide purchaser

APPEAL from Umatilla county. The opinion states the facts.
Lucian Everts, for the appellant.

Turner, Bailey & Ballery for the respondent.

THAYER, J. This appeal is from a decree of the circuit court for the county of Umatilla, rendered in a suit brought by the appellant against the respondents to enforce specific performance of a contract, and to compel the conveyance of a certain tract of land situated in said county of Umatilla, and described as lot 8, section 19, T. 4 N., R. 35 E.

The appellant alleged in his complaint, in substance, that on the twenty-first day of March, 1873, the respondent Suider, then being owner of the land, agreed in writing to sell the same to appellant for fifty dollars, to be paid by the latter to the former as soon as the patent was received from the United States. That appellant

No. 64.-3.

thereupon entered upon and took possession of said land, and made valuable improvements thereon, that a patent for the land had been issued on the first day of March, 1877, to Snider; that in 1882 he deeded it to the respondent Crews, and that Crews, prior to the time of the making the deed, had notice of appellant's right to it. That in August, 1882, Crews took forcible possession of the land, and has ever since remained in the possession thereof; that on the fourteenth day of October, 1882, appellant tendered to Snider one hundred dollars, and on the twenty-first of that month, same year, tendered a like sum to Crews and demanded from each of them a conveyance of the land, and that they had each refused to make such

conveyance.

The respondents specifically denied all the allegations of the complaint, but did not set forth any affirmative matters of defense. The case was referred to a referee, to take the testimony and report the facts and law thereon. The reference was ordered in June, 1884, and on the thirtieth of that month, same year, the referee, against the protest of the appellant, closed the testimony, and prepared and filed his report therein, whereby he found in favor of the respondents. The appellant's counsel, upon the filing of the report, filed a motion, supported by his affidavit, in which, among other things, he stated that he desired and expected to procure some record evidence from Union county, showing the time when the respondent, Snider, made his final proof and payment for the land in controversy, and in which motion he prayed the court to set aside the said report, for irregularity and misconduct upon the part of the said referee in not allowing him a sufficient time in which to procure the evidence.

The respondents opposed the motion, and the court overruled it, and confirmed the report of the referee, and gave the decree thereon, from which the appeal is taken.

It appears from the evidence taken by the referee, that the appellant, in 1866, bought from some occupant the improvements on the land in controversy; that he claimed to hold the possession of it with the remainder of his claim, which appears to have been a kind of squatter's right, until March, 1871, when the respondent Snider came on and erected a fence, against the will of appellant, dividing the land from the balance of his claim; subsequently the appellant received notice from the land office at La Grande, Union county, that the plat had been filed in that office, and soon after he went and filed on the land; but at the same time he was informed by the officers of the land office that Snider had filed on it. That afterwards he heard that Suider had made his final proof on the land, and thereupon he filed affidavits for a rehearing of the case, and forwarded them to the commissioners of the general land office at Washington; that thereafter he was notified by the land office at La Grande that the office there had been advised by the commissioner at Washington, that a rehearing of the case had been ordered before the La Grande office, and that the latter office had set the time for

such rehearing for the twenty-first day of March, 1873. It further appears that on said twenty-first day of March, 1873, the appellant and Snider were both at the La Grande office, and appellant claims that then and there he and Snider entered into a written contract, which was made an exhibit in the case, and of which the following is a copy:

"Ex. 'C,' PLAINTIFF'S PROOFS.

"This agreement, made between D. A. Richards and W. A. Snider, as a settlement of all matters of differences between them, up to this day:

"Witnesseth, That said Richards is to pay to said Snider the sum of fifty dollars in gold coin, and said Snider is to execute and deliver to said Richards a good and sufficient deed, or conveyance, of lot 8, sec. 19, 4, 35 east, as soon as patent is received from United States, and said sum of fifty dollars to be then due and payable; or, if patent is issued therefor to said Richards, he is to deduct from said fifty dollars whatever is paid to the United States for entrance money, and said Richards to be entitled to immediate possession of said lot 8, and both parties to do and perform every act necessary to carry out this agreement, and obtain title from the United States.

"Dated March 21, 1873.

D. A. Richards,
W. A. Snider."

The respondent, Snider, in his testimony, denied that he had ever executed any such contract. He admitted, upon cross-examination, that he was in La Grande on March 21, 1873; stated that he went there to look at some land plats and attend the rehearing referred to, but the appellant testified positively to its execution by both parties. The following is the testimony given by appellant upon that point, viz :

"Q. 18. Did you attend at La Grande at the time specified in the letter filed in this case, and marked 'Exhibit A," plaintiff's proofs ?

"A.-Yes, sir.

"Q. 19. Did you have any conversation with Mr. Snider at that place and time, and, if so, what was said?

"A.—Yes; I had a conversation with him. We met here for the purpose of settling that contest, and he stated he would not contest. for the land any further. After he made that statement, I told him that if the patent issued to him, that as he had made his final proof, if he would make me a deed, I would pay him the entrance money, or pay him fifty dollars in cash, and he was to give me a good and sufficient deed. Then there was an agreement drawn up to that effect. After the agreement was made and signed, I asked him if he thoroughly understood the contents of that agreement, and he said he did. I told him I wanted him to thoroughly understand it, so that there would be no further trouble about it. He said I need not have any fear about it; that he never went back on his word.

"Q. 20. After you had this conversation, in which Snider stated that he would not contend for the land, was there a written agree

ment made and entered into between the parties, and, if so, state what you know about it?

"A.-There was a written agreement entered into, drawn up by Colonel Ellsworth, and signed by myself and Suider.

"Q. 21.-What was done with this agreement after it was entered into ?

"A.—It was placed in the hands of the receiver at the land office at La Grande, for safe keeping, I suppose.'

He then identified the agreement, and it was filed and marked as shown by the exhibit. Another witness, A. S. Thompson, testified, on behalf of the appellant, that he was at La Grande, on or about the twenty first day of March, 1873; that he went there as a witness for appellant in the land case; heard appellant and respondent Snider and Col. Ellsworth, talking about the land; that they settled it; that the way it was settled, appellant was to have the land, and said respondent was to have, he thought, fifty dollars; that the respondent was to give the appellant a title to it; that there was an agreement drawn up by Col. Ellsworth, and read, and both signed it. They said it was such agreement; that witness could not read it; that Col. Ellsworth read it in that way. It appears also that the appellant began to occupy the land soon after, and while there is some question as to the extent and notoriety of his occupancy, yet there is no doubt but that he farmed the land for several years after the agreement is claimed to have been made, and raised several crops on it. It also appeared that the respondent, Snider, had a tract of land adjoining the land in question, and that he sold it off and left the country long before the deed to respondent Crews was executed, though he claimed to have left an agent in charge of this land in question. We are of the opinion, from the weight of the evidence, that the said contract was executed by both appellant and Snider. But it is further claimed, by the respondents, that the contract was in fraud of the pre-emption law of the United States; that it was a contract by a pre-emptor of United States government land, to convey such land to appellant as soon as he obtained patent. The case has been here before, upon the question of the sufficiency of the complaint, and this court then held that it could not be inferred that the contract, which was set out in the complaint, related to land which Snider was endeavoring to obtain title to as a preemption, or homestead claim. That there was nothing in the complaint, or written contract, suggesting such a thing. But it is further claimed by the counsel that the facts and evidence show that the contract was made before final proof or the issuing of the certificate of final proof. This is the real point in the case, and we are unable to agree with counsel in the conclusion he assumes. He has argued, with much force, that, in a suit for the specific performance of such a contract, it should clearly appear that it was such a one as a court of equity would enforce, and that it should not be left to uncertainty as to whether or not it was a contract to sell a homestead or pre-emp