30 Mont. 87 | Mont. | 1904
after stating the case, delivered the opinion of the court.
o The demurrer challenges the jurisdiction of the court, and the sufficiency of the allegations of the complaint to state a cause of action; but, as the last ground of the demurrer only is contended for by the respondents in this court, our examination is confined h> that inquiry.
Appellant argues at length that this character of action is maintainable, and this is readily conceded by respondents, so that the only inquiry before us is, does the complaint state facts sufficient to constitute a cause of action, or bring the plaintiff within the rule applicable to such actions ?
The rule is that if, as a matter of fact, the government was imposed upon, and by fraud or mistake issued a patent to some other person, when in truth the plaintiff -was entitled to it, then, upon a proper showing, a court of equity will decree the patentee to he a trustee, and to hold the land in trust for the use and benefit of the party really entitled to it. (Meyendorf v. Frohner, 3 Mont. 282.) But what is a proper showing? The very foundation of the rule is that the patent was issued to another when plaintiff was justly entitled to it. Then the complaint must show such facts as that it will appear therefrom
Numerous other infirmities in the complaint have been pointed out, but the foregoing considerations are sufficient to demonstrate its insufficiency, and the correctness of the trial court’s ruling.
The judgment is affirmed.
Affirmed.