Appeal from the Fifth District.

Ejectment for two hundred and twenty-five acres of land in San Joaquin county, embraced in a Mexican grant to one Gulnae.

The complaint was filed on the twenty-ninth of March, 1861, at which time an appeal from the decision of the U. S. District Court affirming the survey of the grant was pending. The complaint set up the grant, its presentation to the Board of Land Commissioners in May, 1852, its confirmation by the Board in April, 1855, the affirmance of the decision of the Board by the District Court in February, 1858, the survey made by the direction of that Court, and its final approval by the Court in January, 1861, and that the survey was in strict conformity to the decree of the Court.

Defendant’s answer admits the confirmation of the grant, but denies that the land in controversy was embraced in its boundaries, or was any part of the land granted to Gulnac; and avers that the grant was of a specific quantity of land within general boundaries embracing a much larger quantity; that the land thus granted was not segregated from, the public domain by the Government of Mexico, and hence passed under the treaty of 1848 to the Government of the United States as public land; that before and on the twenty-eighth of September, 1850, the land sued for was swamp and overflowed land, and hence passed under the Act of Congress of that date to the State of California; and sets up title in the defendant by purchase in February, 1856, from the State under the Swamp Land Act.

The answer also avers that in June, 1850, defendant Marshall marked out and settled upon the land in controversy as public land and without knowledge of any claim under said grant, and had put improvements thereon of the value of-dollars, when plaintiff notified him of his claim; after which said defendant put no more improvements on the land until 1851, when he made a contract with plaintiff by his agent R. P. Hammond, in substance, that “ when plaintiff’s claim to said tract of land under said grant should be confirmed to plaintiff, under the laws of the United States, he (plaintiff) would sell to said Marshall, and that he (Marshall) would buy of plaintiff said land at a fair price—such price as should be determined upon as the fair market value thereof by three disinterested persons, one to be chosen by plaintiff, another by said Marshall, and the two thus selected to choose a third, said Marshall to take immediate possession of the landthat relying on said contract defendant took full possession of the land and erected permanent and valuable improvements at a cost of $6,000, of which plaintiff had knowledge; that plaintiff recognized defendant’s claim to the land under said contract until within the last year; that plaintiff did not before this suit notify defendant of the confirmation of said grant, nor of his readiness to comply with said contract, nor did he demand of defendant a compliance therewith; that defendant is ready and offers to comply with the same, but that plaintiff, in fraud of defendant’s rights, refuses. Prayer for a specific performance of the contract, by selecting referees, etc., and in the meantime for an injunction against this suit.

Plaintiff filed a replication denying all the defenses set up in the answer, and particularly that any contract had ever been made for the purchase of the land ; and setting out a patent from the United States, received since the institution of the suit. The pleadings were verified.

The general facts are : that plaintiff, in December, 1852, was the owner and holder of a Mexican grant for the place called “ Campo de las Franceses,” in San Joaquin county, containing eleven leagues; that in May, 1852, he filed his petition for the confirmation of said land by the U. S. Board of Land Commissioners ; and that it was confirmed by the Board in April, 1855, and by the District Court of the United States in May, 1856, and that the Supreme Court of the United States dismissed the appeal taken by the Government from the decree at the December term, 1857.

In February and March, 1858, a survey and plat of the land were made by a Deputy U. S. Surveyor, and approved by the Surveyor General. In March, 1861, a patent was issued to the plaintiff by the Government for the land as described in the said survey, including the land in controversy.

The land is covered with water for a considerable part of the year, hut produces good crops of hay. The facts as to when Marshall began living on the land, and as to his first knowledge of plaintiff’s claim, are about as stated in his answer. The findings of the jury and the letter of Hammond give the nature of the verbal contract as to the purchase of the land. Hammond states that the contract was probably made a few weeks before the date of his letter, hereinafter inserted ; and which puts the number of acres contracted for at one hundred and sixty, or thereabouts. Hammond did not make known to Weber the understanding verbally made with Marshall, nor that he had written the letter of December 26th, 1856.

In 1855, after the confirmation by the Board of Land Commissioners, Hammond conversed with Weber for the first time respecting this understanding. Marshall never made any response, either „ to Hammond or to any one else, signifying his assent to the statement as contained in the note of December 26th. The first time that Marshall ever spoke to Hammond, after 1852, on the subject of the understanding as to the land, was in February or March of 1861. Marshall knew in April, 1855, of the then confirmation of the title to Weber by the Board of Land Commissioners; and never, after the confirmation by the Board, offered to appoint a referee to ascertain the price of the land, until the institution of this suit and the filing of his answer thereto on the eleventh day of April, 1861. It is not pretended that any offer was made by Marshall to carry out the understanding, until his answer was filed; and ■ the verdict of the jury as to that issue is founded solely on the offer in the answer. On the second of February, 1856, Marshall purchased the premises from the State as swamp and overflowed lands.

When the cause came on for hearing, plaintiff moved the Court to proceed as a Court of Equity, and first hear and decide the issues upon the equitable defense set up by defendant as to the alleged contract for the purchase of the land, and after such issues were determined, then to hear the remaining issues. Motion overruled ; and all the issues, both of law and equity, were heard and submitted to the jury together, defendant- excepting.

After the evidence was closed, plaintiff asked the Court to instruct the jury, in substance, that there was no competent evidence from which they could find there was a contract of sale and purchase between plaintiff and defendant, because : 1st, the letter by Hammond to Marshall was not signed by plaintiff or Marshall, nor did Marshall ever accept the terms thereof, nor does the letter express the price or consideration to be paid by him; 2d, after the confirmation, the price of the land was never fixed between the parties according to the method prescribed in the letter, or otherwise ; 3d, the long time which elapsed between its date and the filing of the answer, without offer by Marshall to fix the price in the manner proposed, is conclusive, in the absence of proof explanatory of and accounting for the delay, that Marshall never assented to the terms of the letter, or if so, that he subsequently abandoned them ; 4th, the contract, if any, was not in writing, expressing the consideration and signed by the parties to be charged thereby. Refused, plaintiff excepting.

Issues of fact were then submitted to the jury, which, with the answers returned thereto, are as follows :

1. Was Richard P. Hammond the agent of the plaintiff Weber in 1851 and 1852, and authorized to contract for the sale of the land in controversy ?

Answer : “ Yes.”

2. Was there any agreement made between the plaintiff, Weber," by Hammond, as agent or otherwise, and the defendant Marshall, of and concerning the premises in controversy, in the year 1851 or 1852, for the then present or future sale of the said premises by the said Weber to the said Marshall ? If yes, was such agreement verbal or in writing, and what were the particular terms, stipulations and conditions of the said agreement ?

Answer: “ Yes, a verbal one, namely: the plaintiff to choose one referee, the defendant another, and the two to choose a third one, and they to appraise the value of the said land in controversy, the money to be paid at the confirmation of the grant by the Land Commissioners.”

3. Did the defendant, after such contract was entered into, occupy the land in controversy, and construct valuable improvements upon it, under the said contract ?

Answer: “ Yes.”

4. What is the value of the improvements so constructed ?

Answer : “ The value of the improvements on the land in controversy amounted to S3,000.”

5. Did the plaintiff, Weber, notify the defendant Marshall of the confirmation of his, plaintiff’s, title to said land, and offer on his part to comply with the terms of said contract ?

Answer: “ No.”

6. Did the defendant notify Weber of his readiness to comply with the terms of said contract on his part, and has he named a referee under said contract on his part and notified plaintiff thereof?

Answer: “ Yes.”

7. Did the boundaries of the land granted to said Gulnac, by the Governor of California, include the premises in controversy ?

Answer: “ Yes.”

8. Was the land in controversy subject to annual and periodical overflow, prior to the year 1850, and subsequently ?

Answer: “ Yes.”

9. Could said land be cultivated and crops raised thereon without reclamation in 1850, or at any time subsequently ?

Answer: “ No.”

The letter of Hammond to Marshall, which was shown the former when called as a witness by defendant, is as follows :

“ Stockton, Cal., Deo. 26th, 1856.

“ My Dear Sir :

“ I am about starting for the Atlantic States, and as I cannot foresee what may occur to myself whilst absent, I deem it proper to leave with you the following memorandum in respect to your property on the Calaveras river ; so that in the event of any accident, my statement may be brought properly into evidence in your behalf.

“ I understand that, when the claim of Weber is confirmed by the Land Commissioners, to the land now occupied by yourself, not to exceed one hundred and sixty acres, or thereabouts, you have agreed to pay a fair price for said land ; such price as may be determined upon as fair market value by three disinterested persons— each party to choose one referee, and those two to choose a third.

“ Such you will recognize as the substance of our mutual agreement ; it is the same as made with Mr. A. C. Bradford.

(Signed.) “ Rich’d P. Hammond.”

Upon these findings, the Court decreed a specific performance of the agreement and contract set up in the answer, and an injunction as prayed for ; and that pending the ascertainment of the price of the land, in the manner named in said contract in accordance with this decree, plaintiff be enjoined from prosecuting his action of ejectment. Plaintiff’s motion for a new trial having been overruled, he appeals.