Merrill

This is an action of ejectment to recover possession of one hundred and twenty acres of land in Lassen county, in this state. The respondents had judgment in the court below, and from this judgment and an order overruling appellant’s motion for a new trial this appeal is taken.

Both parties are claiming title from one W. H. Clark. The facts material to a disposition of the litigation may be briefly stated, as follows: W. H. Clark, the husband of respondent Mary, upon the fifth day of November, 1881, made final proof upon his pre-emption claim to this tract of land before a deputy county clerk of Lassen county. He also, at the same time, made the affidavit provided by section 2262 of the Revised Statutes, and paid for the land, with all legal costs and charges. The final proof, affidavit, and money were delivered to the register of the land office at Susanville, and, by reason of the neglect or dishonesty of the said register, no further action towards the securing of a patent was taken for many months. Shortly subsequent to the date of final proof, W. H. Clark, by bargain and sale deed, transferred the land to the respondent Mary Clark. Subsequent to this event the certificate of…