In an action to determine a contest arising in the Surveyor-General’s or Begister’s office, in respect to the right to purchase lands from the State, the defendant is not entitled to judgment to the effect that he has the right to purchase the lands from the State on the ground that the plaintiff has failed to make out his case. Nor is he entitled to such judgment unless he states in his answer facts, Avhich, together Avith those stated in the complaint, show that he has the right to make such purchase. (Woods v. Sawtelle, 46 Cal. 389.) The
It is alleged in the complaint, and not denied in the answer, that the plaintiff has been in the occupation of the lands since May, 1869. The defendant, therefore, was not authorized by the act of March 28, 1868 (Stats. 1867-8, p. 514), to purchase the lands as swamp and overflowed lands.
The act of April 4, 1870 (Stats. 1869-70, p. 878), is not to be construed as prohibiting a settler upon swamp or overflowed land from making an application to purchase the lands after the expiration of the ninety days mentioned in the second section of that act. The application to purchase, though made after that time, will be sufficient if it be in fact prior to any other valid application.
Judgment and order reversed, and cause-remanded for a new trial.