Eymann

Plaintiff’s action was to recover against the defendants for violation of their contract with her, she being protected by an indemnity bond. The gravamen of the action is this: By their contract defendants made to plaintiff an executory assignment of their rights under desert land entries, agreeing to do all things necessary under such entries to perfect them and entitle defendants to patent for those lands, and on issuance of such patents the titles so granted to them were in turn to be conveyed to plaintiff. The complaint charged in several counts, but all to this effect. A general demurrer to it was interposed and sustained and from the judgment which followed plaintiff has appealed. In argu ment it is contended that the Desert Land Act expressly permits the entryman to assign his entry. This is true. Still further, it is argued that if such an executed assignment is valid, an executory agreement to assign is also valid, and that as fraud is never presumed, it will he held against demurrer that the contract was fair and legal. And, finally, it is argued that this court, in Sanders v. Dutcher, 168 Cal. 353 , [ 143 Pac. 599 ], has given distinct recognition to contracts of this…