tion claim before final entry, but the respondents are not in a position to urge that view in very good grace.

The referee closed the testimony while the appellant's counsel was soliciting a delay, in order that he could produce record proof as to the status of the respondent's title when the contract was executed, and the court refused to open the door of the evidence upon that point, as it might have done, and was urged to do by said counsel. It would have been much more satisfactory to this court had such proof been supplied, for then we would not have been compelled to spell out from scraps of testimony the condition of the respondent's title at the time.

From the source referred to, we are inclined to the opinion that the respondent had, at the time the contract was entered into, made his final proof, and had paid for the land. The appellant testified that he had heard that the respondent had made his final proof; that he tacitly admitted it to appellant when they made the contract, and the testimony of Thompson was that the respondent said in his presence, before the day set for the contest in the land office, "that he would beat Mr. Richards; that he had sent money to the office to pay for the land; that he had the drop or advantage of him."

Again, the contract was made under the advice of Mr. Ellsworth, an attorney of this court, and evidently in the presence of the officers of the land office, and was deposited with them for safe keeping. We would hardly presume, therefore, that it was a contract in conflict with a well known provision of a law of the United States, a clause in the pre-emption law, which, long prior to that, had received a construction from the courts of the country, and was understood generally as intended to inhibit assignments and transfers of pre-emption rights, made for the purposes of speculating upon the bounty offered by the government of the United States to settlers in good faith. I understand that the inhibitory clause of that law, which is claimed in this case to have been violated, was not designed to apply to contracts relating to local disputes between those who had settled upon the public domain and were honestly endeavoring, by toil and privation, to secure a home for themselves and families, nor to a sale of the claim after entry and payment of the purchase price, but that it was inserted in the act in order to prevent a class of land speculators from acquiring vast bodies of public lands through the agency of middle men, who had no intention of establishing permanent residences.

In the case at bar, both parties had settled upon lands belonging to the United States, before the government survey had extended over them. Each had a claim, but, as frequently occurs, they overlapped each other. Both claimed the lot in dispute, and filed upon it in the land office as a pre-emption claim. Snider filed first, and, as we infer from the evidence, made final proof and paid for the land, but the appellant entered a contest. When the time arrived for the hearing, the parties met, and, probably, considering the trouble and

expense that would result therefrom, concluded, like sensible men, to adjust it. The case is very similar, in most respects, to that of Snow v. Flannery, 10 Iowa, 318. There the plaintiff had purchased and settled upon a claim prior to the public survey. When the land was surveyed, his claim proved to be upon the south half of a certain quarter section, and subsequently the defendant acquired the north half of the same quarter section. They both filed upon the whole quarter section; it being fractional, contained no smaller sub-division by the survey, and the whole quarter could only be entered by one pre-emption; thereupon the defendant agreed to pre-empt the same and to convey to the plaintiff the portion embraced in his claim, but after having secured the title, he refused to execute the conveyance, and the court decreed that he should. The supreme court affirmed the decree. It was there held that a contract made before the issuing of the patent to convey after, did not violate the letter or spirit of the law, so as to invalidate the contract between the parties, and that if such contract were in violation of law, the defendant was the party who committed the wrong; that the government was the only party wronged, the only party that could take advantage of the wrong thus committed; and that in that proceeding, the question could not be inquired into; that it could not be determined in the proceeding whether the defendant did obtain the title to the land by making false representations at the time of his entry. That the plaintiff did not violate any law by his contract with the defendant, and that the defendant should not be allowed to set up his wrongful act in bar of the plaintiff's rights.

In Myers v. Croft, 13 Wal., 291, it is held that a pre-emptor who has entered a pre-emption claim, may sell before patent issues, and I find nothing in the authorities cited upon the part of the respondents that conflicts with that view. The distinction to be noted is, whether the agreement was a sale of the pre-emption right, or a vested interest in the claim, after its acquisition under the law.

The respondents' counsel also claims that too long a time was allowed to elapse by the appellant before attempting to enforce the performance of the contract, but time was not made the essence of the contract; nor did the respondent Snider, attempt to make it the essence thereof, by calling upon the appellant and demanding its performance upon his part within a specified time; both parties let it run on. The appellant being in the exercise of a possessory right over the land, would not be likely to urge its consummation, and besides, the said respondent was away, living in various other sections of country, remote from the state of Oregon, a great part of the time.

Said counsel claims also that the respondent Crews is a parchaser of the land in good faith, and his equities therefore being equal to those of the appellant, and having obtained the legal title, his position is the better. This would be true if he were an innocent pur

chaser in good faith of the land, but has he shown himself to be such?

To constitute a purchaser in good faith, as against an outstanding equity, a party must plead and prove that the consideration money was bona fide, and truly paid, independently of the recitals in the deed: 2nd Lead. Cases in Equity, 91, 120, 3rd American, from 2nd London ed.; Boon v. Chiles, 10 Pet., 177.

No such defense has been averred in the case, nor any proof made, independently of the recital in the deed from Snider to Crews, of its payment. Besides, the circumstances surrounding the case, the appellant having cropped the land for several years prior to Crews' purchase, and the respondent Snider not residing upon it, were such as would ordinarily put a prudent man upon inquiry. It seems that Crews reaped a volunteer crop after he went onto the landthe result of former cultivation. It hardly seems possible that he would have bought the place without endeavoring to ascertain whether or not appellant did not claim an interest in it. It appears he did examine the records in the land office and of the county.

The witness T. J. Shaw, testified that he had a conversation with him at his, witness's, residence in Centerville about the land; that witness asked him if he was not afraid he had "got his foot in it;" to which Crews said no, he had been to Grande Ronde, to the land office, and saw that Richards had no shadow of a show to hold the land. If that testimony is reliable, Crews must have learned that Richards claimed some kind of a right in the land, and he should have gone to Richards to ascertain the fact, and besides this, his deed of purchase, under which he entered upon the land, was only a quit claim deed. A purchaser under that kind of a deed cannot claim to be a bona fide purchaser of the property. We have decided that question at this term in Baker v. Woodward, 5 West Coast Rep., 136.

It is true that Crews, long subsequent to his entry, took from Snider another deed to the lot, a deed of bargain and sale, with covenants of warranty, but he certainly had learned by the time he took the second deed that appellant claimed the land. It is our opinion that the respondents have not shown that Crews was a purchaser in good faith, and that he stands in no better condition than Richards would have stood, if he had not executed said deeds.

The remedy to compel the specific performance of à contract is not to be exercised as a matter of course. Its application should be controlled by circumstances, and courts are allowed to, and often do, exercise a discretion in granting it, but, as it is said by Mr. Pomeroy, in his work upon Equity Jurisprudence, "whenever a contract concerning real property, is, in its nature and incidents, entirely unobjectionable, when it possesses none of the features which in ordinary language, influence the discretion of the court, it is as much a matter of course for a court of equity to decree its specific peformance, as it is for a court of law to give damages for its breach:" Sec. 1,402.

In the view we take of this case, the contract sought to be enforced, is, in its nature and incidents, unobjectionable, and the appellant is entitled to its performance.

It appears to have been entered into in good faith, and to have been acted upon by the parties, and does not, under the view we have taken, conflict with any of the provisions of the pre-emp

tion act.

Judgment reversed, and let a decree be entered as prayed for in plaintiff's complaint, and that he be required in the decree to pay to the respondent, Crews, the one hundred dollars, upon demand of the

same.

ROBBINS ET AL. v. BENSON ET AL.

Filed February 16, 1885.

ACCOUNT FORM OF VERIFICATION-OBJECTION WHEN WAIVED.-A technical objection to the form of the verification of an account furnished the defendant, cannot be taken advantage of on the trial, unless the defendant had previously demanded that the account as furnished be corrected.

APPEAL from Union county. The opinion states the facts.

Wm. M. Ramsey and Turner, Bailey & Ballery, for the respondents.

John R. Crites and Bonham & Ramsey, for the appellants.

THAYER, J. This appeal is from a judgment of the circuit court for the county of Union, rendered in an action commenced by the appellants against the respondents to recover for goods sold and delivered by the former to Mark A. Benson, the husband of the respondent, Cordelia A. Benson. The appellants allege in their complaint that Mrs. Benson was liable, under the act of 1878, defining the rights and fixing the liability of married women.

The only question upon the appeal is as to whether the appellants had the right to give evidence upon the trial of their claim sued

upon.

The husband filed no answer in the case, but the wife interposed a defense. It appears that about the twenty-first day of February, 1884, and after the action had been commenced, the attorney for Mrs. Benson demanded in writing from the appellants an itemized account of the demand sued upon, and that in compliance therewith the appellants prepared and delivered to said respondents, about the eighth day of March, 1884, a copy of the said account, verified by one of the appellants, to the effect that it was a true and correct copy of the said account. The case came on for trial before the said court at the May term, 1884. Upon the trial the appellants called a witness and undertook to prove by him the correctness of their account, whereupon the counsel for the respondent objected to any proof being given concerning it, upon the grounds that the copy furnished was not properly verified. The court sustained the objec

tion, and excluded the evidence, and the appellants' counsel excepted to the ruling.

The appellants, in consequence of the ruling, were not able to give any evidence of their claim, and were therefore nonsuited, on motion of the respondent's counsel. The ruling of the court against the admission of the evidence is assigned as error.

We are of the opinion that the verification to the account was not strictly in accordance with the requirements of the statute upon the subject. That it should have been that the account was true. But we are of opinion also, that the said respondent had no right under the circumstances of the case to raise the question. The acconnt had, evidently, been furnished in good faith; it had been secured ånd kept by the respondent for more than a month without objection. The defect in the verification was but slight, and practically unimportant, and the respondent must be deemed to have waived it. The copy was furnished in accordance with the demand, and if the respondent desired to have it properly verified, she should have notified the appellants of the fact. She had no right to accept it as a compliance with the requirements of the statute, and when the trial came on, object to it for the first time: Hull v. Ball et al., 16 How., P. R., 305; Dennison v. Smith, 1 Cal., 437.

If a party in such a case intends to insist upon a strict compliance with a technical requirement, he must not remain silent, when it is his duty to speak, as he might thereby mislead another party, to his injury. Good faith required the respondent to make her objection to the verification of the account in this case, within a reasonable time after it was delivered to her, so that the appellants would have had an opportunity to correct the defect, but having failed to do so, her objection afterwards should not have been heard.

The judgment is therefore reversed, and the case remand ed for a new trial.

DWEEK V. GALBREATH.

Filed February 18, 1885.

TRESPASS TO LAND-JUSTICE COURT-QUESTION OF TITLE.-In an action for trespass to real property, begun in the justice's court, if the title to the land is called in question by answer or plea, the jurisdiction of the justice is lost.

APPEAL from Washington county. The opinion on the prior hearing is reported 5 West Coast Rep., 502.

THAYER, J. When the decision was made in this case, in which a rehearing is now sought to be had, I was very strongly impressed with the belief that where a party to an action in justice's court was compelled, in order to maintain the action, or a defense thereto, to prove title to real property, he would, if plaintiff, fail to establish his case, and, if defendant, be precluded from proving his defense. The jurisdiction of a justice court does not extend to an ac