Somers

Suit was commenced by William F. Somers to quiet his title to the northeast quarter of the northeast quarter of section 27, township 3 south, range 14 west, San Bernardino meridian, containing, according to the allega *359 tions of the complaint, forty acres. Mrs. McMordie, the respondent here, answered, admitting the title of Somers to all of said land, except a small portion thereof, and asked to have her title quieted as against Somers to lot 1, section 27, township 3 south, range 14 west, San Bernardino meridian, which was described also in her pleadings by metes and bounds. Before trial plaintiff dismissed as to the fictitious defendants.

There is a statement of stipulated facts wherein, among other things, it is agreed by these litigants that both parties derive title to their respective lands through patents issued ■by the state of California under indemnity lists duly approved and certified by the Secretary of the Interior; that the government plat of the survey of said lands shows Somers’ land as containing forty acres and the McMordie lot as having an area of twenty-one and thirty-eight hundredths acres; that there is a shortage of four and forty-four hundredths acres…