Marshall

Upon further consideration of this cause in Bank, we adhere to-the views expressed in the opinion filed in Department One, and for the reasons therein given the judgment and order denying defendant’s motion for a new trial are reversed.

Beatty, C. J., did not participate in the foregoing decision.

Temple, J., being disqualified, did not participate- in this decision;

The following is the opinion of Department One, above referred to, rendered on the 25th of November, 1895.

Plaintiffs seek in this action to have the defendant declared the trustee for them of the title to *333 certain land situate in the county of Fresno, and to compel conveyance thereof.

Plaintiffs are the heirs at law of one Thomas Marshall, who died October 25, 1882. On June 13, 1868, said Thomas Marshall made application in the state land-office to purchase the land in question, the same being the east half of a certain sixteenth section. His application was approved May 10,1869, and a certificate of purchase was issued to him on July 6, 1869. These proceedings were under the act then in force (Stats. 1867-68, p. 507) providing for the sale of lands belonging to the state. Marshall made a quitclaim deed of…