Witcher

The action is ejectment. Judgment for plaintiff, from which, and from an order denying his motion for a new trial, the defendant appeals.

The plaintiff claimed title under a pre-emption entry made by Albert Scherfen, evidenced by a receipt for the purchase-money from the receiver of the land-office at Susanville, California, of which the following is a copy:— “No. 1402.

*501 Across the face of this receipt were written, in red ink, the following words:— .

It was stipulated by counsel that the lands described in the receipt are within the district of lands subject to entry and sale at the land-office at Susanville; that such lands had been surveyed by the government, and the plat thereof filed in said land-office, and duly approved prior to April, 1878,, after which, in April, 1878, Albert Scherfen made a pre-emption filing on said land, which ■was marked and entered upon the plats and records of said land-office; but that the records of said land-office do not show that any entry of or payment for said land by Albert Scherfen was ever made, and that there is no record of any such entry or payment in said land-office.

On February 19,1884, Scherfen, by a bargain and sale deed…