Painter

I dissent. The contracts sued on are in all respects similar to those involved in the case of Southern Pac. Co. v. Allen, 112 Cal. 445 ; and the material facts are the same as in that case,except as herein noted.

The case was submitted upon an agreed statement of facts, the substance of which was as follows: The plaintiff’s only claim to the land in question was under the act of Congress of March 3, 1871, granting lands to it for its branch line. The said lands lie within the limits of that grant, and also within the limits of the grant made by the act of Congress of July 27, 1866, to the Atlantic & Pacific Railroad Company, at the crossing of the lines of said railroads as definitely located. That the lands are unsurveyed, and no steps have been taken by plaintiff to obtain a patent for the same. “ That there is now pending, and was pending at the time that the case of United States v. Southern Pac. R. R. Co., 146 U. S. 570 , was decided, a suit in the circuit court of the United States,” brought by the United States against the parties to this action for trespass on said lands, and to quiet the title thereto. That the defendant’s intestate took possession of said lands, but…

The plaintiff entered into two several contracts with the defendant’s intestate August 18,1887, for the sale to the latter of two designated sections of land in the county of Los Angeles. The land described in the* agreements was claimed by the plaintiff as a portion of a grant to it by the United States by virtue of the act of March 3, 1871. At the date of the agreements no patent had been issued therefor, and each of the agreements contained the following covenant:

The defendant’s intestate paid to the plaintiff twenty per cent of the purchase money, with one year’s interest upon the remainder, at the execution of the agreements, and by their terms was to pay the balance of the purchase money, with interest thereon at the rate of ten per cent per annum, on or before August 18, 1892. No *253 nation of the question, the plaintiff’s liability under the covenant would be also determined; and that, if that question was determined adversely to the plaintiff, it .would thereupon repay the money. In the case of United States v. Southern Pac. R. R. Co., supra, the question for determination was the right of the plaintiff herein to any of the lands within the limits of the grant to the…