Trimmer

Ejectment for north half of section 36, township 24 south, range 10 east, Mount Diablo meridian. Judgment for plaintiff. Appeal by defendant from the judgment, and from an order denying his motion for a new trial.

The plaintiff bases his right to recover on a certificate of purchase for the land in controversy issued to his intestate, John McBride.

The defendant assails this certificate on the following grounds: 1. That McBride was not, when he made his application to purchase, a citizen of the United States, nor had he declared his intention to become such; 2. That McBride never was an actual settler on the land.

If defendant can urge these grounds, and their truth or the truth of either of them is established by the evidence, the judgment and order are erroneous. It is clear that there is no evidence in the record that McBride was ever a citizen of the United States, or had ever declared his intention to become such citizen. Whatever evidence was admitted on this subject at the trial was, before its close, stricken out by the court.

The evidence fails to show that McBride was at any time an actual settler on the land. McBride states in his testimony that his home for the…