Appeal from the District Court, Fifth Judicial District, County of San Joaquin.

Ejectment to recover the north-west quarter of section twenty-eight, township three north, range seven east, Mount Diablo meridian. The action was commenced March 7, 1873. The demanded premises were selected by the State of California in 1863, as a part of a grant made by Congress. The selection was made by the State Locating Agent, in accordance with the laws of this State, who notified in writing, the Register of the United States Land Office for the district, that said selection had been made. This notification was made when the selection was made, and remained on file in the office of the Register. About the time of the selection, Gilbert C. Reynolds purchased the land from the State, but did not pay any money, either principal or interest, on the purchase, until September 17, 1867, when he paid twenty per cent, of the principal, and five years interest from and including the year 1863. On the 20th of May, 1868, the State issued a patent to said Reynolds. The land was surveyed by the United States in 1865, and the plat of the survey was filed in the Local Land Office on the 18th day of October, 1865.

On the 12th day of January, 1866, James W. Peat applied to the Register of the United States Land Office to enter the demanded premises as a homestead, under the homestead laws of the United States, and made the necessary affidavit, paid the Register the sum of ten dollars, and received his receipt therefor. Peat leased the land to W. J. Lowry in September, 1865, for three years, by a written .lease, and Lowry entered under the lease. Peat died March 2, 1867, and on the 16th of that month, Charles Belding was appointed the administrator of his estate. Said Lowry thereafter attorned to Belding. On the 26th of May, 1868, Reynolds, the patentee, commenced an action of ejectment against Lowry, to recover the demanded premises, and on the 18th day of November, 1868, recovered judgment against him, and was placed in possession. This judgment the defendant in this action, pleaded as a bar. There was no proof that the administrator, Belding, had notice of this suit against his tenant, Lowry. On the 22d day of December, 1872, the United States issued to Chant, the plaintiff, a patent for the demanded premises. The patent recited that the claim of George W. Chant, as the heir of Peat, had been established and duly consummated in conformity to law. The patent was the only evidence offered by Chant on the trial, to show that he was the heir of Peat, or had performed the conditions required by the Homestead Act. The plaintiff recovered judgment in the Court below, and the defendant appealed from the judgment, and from an order denying a new trial.-

The other facts are stated in the opinion,