Wormouth

Action to recover possession of a tract of land containing forty-six and twenty-six hundredths acres. The case was tried by the court without a jury, and the issues of fact being found in favor of the defendants, judgment was thereupon rendered against the plaintiff. Subsequently, the plaintiff's motion for a new *150 trial was granted, and from this order the defendants have appealed.

1. The motion for a new trial was properly granted. The plaintiff’s right to the possession of the land in controversy was based upon a United States homestead entry, made May 20, 1881, and a receipt given by the receiver of the proper United States land-office, on his making full cash payment for the land July 22, 1892. The defendants are not in privity with the United States, and there was evidence tending to show that plaintiff was residing on the land embraced in his homestead entry when such entry was made, and continued to reside thereon, and to comply in good faith with the United States homestead law until final payment for the land. This was sufficient to entitle him to recover under section 2 of the act of March 23, 1874, “for the protection of pre-emption and homestead claimants” (Stats.…