1. Mines and Minerals <@=>45—Fraudulent Patents—Defenses.

In a suit by tbe United States to set aside patents to mining claims on the ground that they were fraudulently obtained, the defense of bona; fide purchaser is an affirmative one which must be alleged and proved.

2. Appeal and Error <@=>194(1)—Pleading—Defects—Waiver.

In á suit by the United States to set aside patents to mining claims which with other lands had been conveyed to defendant, on the ground that they were obtained by fraud, the failure of defendant’s answer which relied on the defense of bona fide purchase to compfy with the rule that the consideration must be stated with a distinct averment that it was bona fide and truly paid cannot for the first time be raised on appeal, no demurrer or other objection having been made to the answer below, and the evidence showing payment of the consideration having been received without objection.

3. Mines and Minerals <@=>45—Bona Fide Purchasers—Presumptions.

Where plaintiff purchased a cattle ranch which included mining claims that had been abandoned for mining purposes, for a gross sum, and there was no evidence tending to show that the parties agreed on any set price for any particular tract, it must, in a suit by the government to set aside the mineral patents, where plaintiff claimed as a bona fide purchaser, be presumed that such portion of the gross consideration was paid for the property covered by the mining claims as their actual value bore to the whole of the lands.

4. Mines and Minerals <@=>45—Patents—Bona Fide Purchasers.

A purchaser of a ranch which included land patented as mineral land is entitled to rely to some extent upon the action of the Land Department ■ which by its issuance of patents determined that the land was mineral in character, and that the patentee complied with the law, and hence, in a suit by the government to set aside the patents on account of the patentee’s fraud, the purchaser cannot be denied protection as a bona fide purchaser for value because he knew that a portion of the property had been patented as mineral land, and was not being worked; for it is a matter of common knowledge that mining claims located in good faith and patented, as such often prove unprofitable and are not worked because ot the low grade of the ore, etc.

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