Merriam

On May 21, 1887, defendant Maria Poggi, .now the wife of said Louis Bachioni, resided on a tract ' of public land in San Diego county, and on May 30th following she filed her declaratory statement in the local /land-office of the United States, claiming the right of *194 pre-emption as to such land. On said May 21st the plaintiff, Merriam, filed in the same office his application to enter the land as a homestead under the federal laws relating to entries of that character, and obtained the usual receiver’s duplicate receipt; in November, 1887, lie entered into possession of the greater part of the land. The contest thus arising over the right to acquire title from the government was prosecuted to a final decision of the general land-office in favor of said Maria, rendered in May, 1894. Merriam’s homestead entry was rejected on the ground that the land was covered by her preemption entry; and accordingly the patent of the United States for the land was issued to her in August, 1894. In the year 1889, and while such contest was pending before the land department, Merriam brought an action against Maria Poggi in the superior court of said county, alleging in his complaint the…