Hart

This action was commenced in the court of a justice of the peace to recover damages consequent upon the alleged nonperformance of an agreement.

It was alleged in the complaint that, in consideration *135 of one hundred dollars, the defendant agreed “ to locate the plaintiff on certain vacant government land in the county of San Benito, state of California; but this plaintiff avers that said defendant failed to carry out and fulfill said contract and agreement, in that they (it) failed and neglected to locate this plaintiff on said or any lands pursuant to their said contract.”

A copy of the contract is set out in the complaint as follows:

Those parts of the verified answer of the defendant pertinent to the questions raised on this appeal are substantially as follows:

1. ' Defendant alleges “ that the determination of this action will necessarily involve the question of title and possession to real property, to wit: the title and possession of the northwest quarter of section 27, township 16 south, of range 10 east, county of San Benito, state of California.”

2. Admits the execution of the instrument of July 22, 1892, above set out, and the receipt of one hundred dollars…