er thereof, and that one George W. Berry did own the said property. That by reason of said agreement with the defendant and the making of the improvements by the said plaintiff, in reliance upon the terms and conditions of said agreement, plaintiff was compelled to and did purchase from said George W. Berry, the real owner of the said premises, the title thereto for the consideration of five hundred dollars ($500.00). That said purchase was necessary on the part of the plaintiff to protect himself for the improvements made on said premises. That plaintiff demanded of the defendant a fulfillment by him of his agreement to sell and convey said property to the plaintiff, and that the said defendant wholly failed and neglected to so fulfill said agreement, and that by reason of the breach thereof plaintiff has sustained damage in the sum of five hundred dollars ($500.00); being the sum which plaintiff was compelled to pay to get title to the said property, in addition to the amount paid to the defendant. Wherefore, plaintiff prays judgment against the said defendant for the sum of five hundred dollars ($500.00) and costs of this action."

The portion of the contract pertinent here is the following: "This agreement made and entered into this 2d day of October, 1901, between E. G. Smith, party of the first part, and David Willard, party of the second part, witnesseth: That the said party of the first part, for and in consideration of the promises and agreements of the party of the second part, hereinafter contained, does hereby agree to sell and convey unto the said party of the second part, lot 20, block 4, Boulevard addition to Butte, Mont., according to the official plat and survey thereof now on file in the office of the county clerk and recorder of Silver Bow county, Mont., upon the following terms and conditions, to wit," etc. Following are the promises and agreements of the plaintiff, among which is his promise to pay the defendant $150; $50 of this to be paid in cash, and the balance in monthly installments of $25 each, with interest. The writing does not expressly fix the time for the making of the conveyance, but the clear implication is that this was to follow immediately the payment of the last installment of the purchase price as promised by plaintiff. It may be remarked, further, that the writing calls for a conveyance of the title. Its requirements could not be met by a conveyance not effective of that purpose. It will be noticed that the plaintiff has proceeded upon the theory that he is entitled to recover the amount paid by him to secure the title after his discovery that defendant could not convey it to him. In other words, he sues for reimbursement in this amount, not for the amount paid defendant. The cause was submitted to the district court on this theory, and counsel argues here that his position is correct. The only question submitted by him is: What is the proper measure of damages? There is a conflict in

the decisions of the courts of the different states upon this question; but the rule in this state has been fixed by statute. Section 4306 of the Civil Code provides: "Section 4306. The detriment caused by the breach of an agreement to convey an estate in real property is deemed to be the price paid, and the expenses properly incurred in examining the title and preparing the necessary pap rs, with interest thereon; but adding thereto, in case of bad faith, the difference between the price agreed to be paid and the value of the estate agreed to be conveyed, at the time of the breach, and the expenses properly incurred in preparing to enter upon the land." Here no bad faith is alleged; therefore the rule stated in the first part of the section must apply, viz., that the amount recoverable, if anything, is the price paid, together with the expenses properly incurred in examining the title and preparing the necessary papers, with interest thereon. Upon his own statements the plaintiff has secured the title. He therefore has the land with the improvements and thus has the advantage of any enhancement of value since the contract was made. So that the only detriment he has suffered has been his payments to defendant, together with the incidental expenses, if any.

The action of the district court was correct, and its judgment must be affirmed. Affirmed.

MILBURN and HOLLOWAY, JJ., concur.

(34 Mont. 303) STATE ex rel. COTTER et al. v. DISTRICT COURT OF SECOND JUDICIAL DISTRICT et al.

(Supreme Court of Montana. June 27, 1906.) EXECUTORS AND ADMINISTRATORS - ACCOUNTING-REVIEW-SCOPE OF REMEDY.

Under Code Civ. Proc. § 1947, providing that review on the writ of review cannot be extended further than to determine whether the inferior tribunal has regularly pursued its authority, the order of the district court granting the motion to strike out objections in probate proceedings to the final account and the petition for distribution cannot be reviewed by such writ, the motion having come regularly before the court, and it not having exceeded its jurisdiction in granting it, but at most have merely erred.

Application by John R. Cotter and another, by their duly appointed attorney, C. M. Parr, for writ of review to the district court of the Second judicial district, and Hon. Michael Donlan, a judge thereof. Dismissed.

G. J. Langford, for relators. John J. McHatton, for respondents.

MILBURN, J. Application for writ of review. John W. Cotter died on the 29th day of July, 1903, leaving an estate in Silver Bow county. His wife, Katherine, survived him. He left no issue by his wife. Letters testamentary were issued to the widow September 1, 1903. She was the sole beneficiary un

Mont.)

der the will. On January 4, 1905, the executrix filed a final account showing that there had been $70,000 received and $20,606.93 expended, and asking that the balance be set over to her as the sole beneficiary. On the 13th day of February, 1905, two minor children, called John R. Cotter and Vivian Anna Cotter, alleged to be the illegitimate children of the testator, appeared by their mother, Ida Cavelle, and prayed for the appointment of C. M. Parr, Esq., as attorney for the children in the probate proceedings. The court appointed Mr. Parr attorney as prayed. On the 13th day of February, 1905, the children, by the appointed attorney, filed their objections to the final account and petition for distribution. The widow, appearing in propria persona and as executrix, moved, on February 23, 1905, to strike out the objections made by the children, giving her reasons at length. The court answers that testimony was taken on the hearing of the motion to strike the objections, and that it appeared that there was not any writing produced to prove that the deceased had ever acknowledged the children as his. Thereafter, on March 4, 1905, these matters all came on for hearing, and on the 9th day of April of the following year the court made its order granting the motion to strike out the objections to the final account and the petition for distribution. The children, by their attorney, now, in their petition for review, declare that the court and judge thereof, in granting the motion to strike out their objections, exceeded jurisdiction, and further say that there is not any appeal from said order, and that they have not any plain, speedy, or adequate remedy. It is true that there is not any appeal provided by law from such an order. Section 1722, subsection 3, Session Laws, 1899. p. 146.

Did the court exceed its jurisdiction or act without jurisdiction? The review upon the writ invoked in this matter cannot be extended further than to determine whether the court below regularly pursued its authority. Code Civ. Proc. § 1947. The motion to strike the objections came regularly before the court. It was considered, and the duty of the court was to grant or deny. In granting the motion it may have done wrong. But the question as to whether or not the court erred in granting the motion cannot be inquired into in certiorari proceedings.

An order to show cause why the writ should not issue was made by this court. If the court below should make an erroneous order settling the account of the executrix, or should err in directing distribution, an appeal may be taken, and on such appeal the error, if any, as to the striking of the objections, might be considered.

Whatever remedy the complaining party may have, it is not by writ of review.

Order to show cause quashed, and proceedings dismissed.

Dismissed.

BRANTLY, C. J., concurs.

615

HOLLOWAY, J. I agree with what is said above. I am of the opinion that relators may have relief by mandamus. Raleigh v. District Court, 34 Mont. 306, 61 Pac. 991.

(34 Mont. 306)

STATE ex rel. COTTER et al. v. DISTRICT COURT OF SECOND JUDICIAL

DISTRICT.

(Supreme Court of Montana. June 27, 1906.) INFANTS - APPOINTMENT OF ATTORNEY - REVIEW-SCOPE OF REMEDY.

The action of the district court, proceeding regularly, in granting a motion to vacate its order, appointing an attorney for minors in jurisdiction, but at most erroneous, or in abuse probate proceedings, not being in excess of of discretion, is not reviewable by writ of review.

Application by John R. Cotter and another, by their duly appointed attorney, C. M. Parr, for writ of review to the district court of the Second judicial district and Hon. Michael Donlan, a judge thereof. Dismissed.

G. J. Langford, for relators. John J. MċHatton, for respondents.

MILBURN, J. Application for writ of review. On motion to quash order to show cause why writ of review should not issue. The court having, on the 13th day of February, 1905, appointed C. M. Parr, Esq., as attorney for the alleged children of one Cotter, deceased (mentioned in the statement made in the case of State v. District Court et al., 87 Pac. 614, which see for. the other facts herein), did on the 9th day of April of the next year, on motion of the executrix, vacate the order appointing Mr. Parr as such attorney.

That an attorney may be appointed in the discretion of the court, for minor heirs in probate proceedings is apparent from what is said in State ex rel. Eakins v. District Court, 85 Pac. 1022, and Carpenter v. Superior Court, 75 Cal. 596, 19 Pac. 174, and section 2925 of the Code of Civil Procedure. The court was proceeding regularly in hearing and determining the motion to vacate the order appointing the attorney. As we say in the other Cotter Case, ante, the court may have erred, and, if so, we cannot correct the wrong in this proceeding. To abuse discretion is not to act without jurisdiction or in excess of jurisdiction. It may be that these children are, in fact, the heirs of the deceased, and may have been lawfully acknowledged by their alleged father in writing and therefore entitled to inherit part of the property. They should have a fair chance to prove their status in a proper proceeding. If this matter were brought before us on petition for writ of supervisory control, a different question would be presented, and, possibly, the children might be entitled to some relief from this court, but this we may not now decide.

The motion to quash the order to show cause is granted, and the proceeding is dismissed.

Dismissed.

BRANTLY, C. J., and IIOLLOWAY, J.,

concur.

(150 Cal. 1)

DOLLENMAYER et al. v. PRYOR (C.ESAR, Intervener.) (Sac. 1,460.)

(Supreme Court of California. Oct. 2, 1906.) 1. APPEAL-DECISION REVIEWABLE FORM OF JUDGMENT-ORDER DENYING INTERVENTION. An order clearly showing a denial of a right of intervention, and forbidding the filing of a complaint, is sufficient to form the basis of an appeal without any more formal verbose judgment.

[Ed. Note. For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 876.]

2. SAME-FINAL JUDGMENT.

An order, denying a right of intervention, is final as to the right of intervener, and justifies an appeal without waiting for judgment between the other parties.

[Ed. Note. For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 368.]

3. PUBLIC LANDS-DISPOSAL OF STATE LANDS -GRANT TO INDIVIDUAL-RIGHT TO PRO

TEST.

One not claiming any right, title, or interest, in land filed on for purchase from the state as not suitable for cultivation, and who does not himself propose to purchase such land, cannot initiate a contest before the surveyor general against the proposed sale on the ground that the land is suitable for cultivation.

Ed. Note. For cases in point, see Cent. Dig. vol. 41, Public Lands, § 394.]

4. SAME JURISDICTION OF COURT.

Pol. Code, $ 3414, authorizing the surveyor general on demand, or when he believes a question of law is involved, to submit to the district court contests arising before him, as to locations on public lands, does not give the court jurisdiction of a purported contest so referred, in which the one, objecting to the proposed sale of the land, claims no right, title, or interest therein, and does not himself propose to purchase the land.

[Ed. Note. For cases in point, see Cent. Dig. vol. 41. Public Lands, § 394.]

5. APPEAL REVIEW - INTERVENTION-LACK OF JURISDICTION.

Where the court has no jurisdiction of a proceeding as to the purchase of public land referred to it by the surveyor general, under Pol. Code, § 3414, its order, denying a right of intervention, must be sustained on appeal.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3406.]

In Bank. Appeal from Superior Court, Kings County; M. L. Short, Judge.

Action by Mattie Y. Dollenmayer and another against John S. Pryor, James Cæsar praying to be allowed to intervene. From an order, denying such right of intervention, Cæsar appeals. Affirmed.

Robt. W. Miller, for appellant. Chas. G. Lamberson and H. P. Brown, for respondents. John S. Pryor, in pro. per.

SHAW, J. This is an appeal by James Cæsar from an order of the superior court

denying his application to be allowed to intervene in an action between Dollenmayer and Mellen as plaintiffs, and Pryor as defendant.

The action was a land contest begun in pursuance of an order of reference from the surveyor general, under section 3414 of the Political Code. Dollenmayer filed his application, on November 28, 1903, to purchase an entire section as land not suitable for cultivation. His application was approved May 18, 1904, and a certificate of purchase was issued to him on June 18, 1904, and was thereafter assigned to plaintiff Mellen. Afterward on July 26, 1905, Pryor filed a verified protest against the issuance of any further evidence of title under the Dollenmayer certificate, on the ground that the land was suitable for cultivation, that Dollenmayer was not a settler thereon, and that he did not make the application in good faith. Pryor demanded a trial in the courts. The order of reference was thereupon made on the day the protest was filed, and the action was begun September 24, 1905.

On August 10, 1905, after the order was made, but before suit was begun, Caesar settled on the north half of the section, which was then unoccupied, and on August 14, 1905, offered to the surveyor general for filing, his application to purchase the same, including therein a protest against the Dollenmayer purchase on the ground that the land was suitable for cultivation and that Dollenmayer was not an actual settler, and demanded a trial in the courts. The surveyor general refused to receive or file the application on the ground that he had previously made an order of reference of the contest arising upon Pryor's protest. The complaint in intervention was presented, and leave asked to intervene, a few days after the action was begun. It alleged, in addition to a statement of Caesar's rights, that Dollenmayer did not apply to purchase in good faith, but for the benefit of Mellen, to whom he had previously agreed to sell the land, that Pryor's protest was filed in collusion with Dollenmayer and Mellen, in pursuance of an agreement that Pryor should not appear in the action, and for the purpose of forestalling other applicants who might apply to purchase after the order of reference was made on the protest. The court refused to allow the complaint to be filed.

The respondent objects to the consideration of the appeal, contending that it is premature, and that the party asking to appeal from such an order must await final judgment between the original parties, and appeal from that judgment, or, at all events, must procure the entry of a more formal judgment denying his motion, and appeal after such entry. We can perceive no merit in this objection. The record shows that the order, or judgment, denying the application to intervene was entered before the appeal was taken. It clearly shows that the court had determined the right

of the intervener and declared that Cæsar should not intervene in the action, and that his proposed complaint should not be filed therein. The most verbose statement could not state the determination more accurately or effectually. So far as the intervener and his rights in that action were concerned, it was final. We see no good end to be secured by requiring him to await.judgment between the other parties, after a trial in which he could not participate. It ended the litigation as to him, and he should be allowed an immediate appeal. Stich v. Goldner, 38 Cal. Stich v. Goldner, 38 Cal. 610; People v. Pfeiffer, 59 Cal. 90; Donner v. Palmer, 45 Cal. 180. Anything in Wenborn Anything in Wenborn v. Boston. 23 Cal. 321, contrary to this rule, must be considered as overruled by these later decisions. Upon the merits of the appeal we are of the opinion that the action of the court below must be sustained, but for reasons different from those presented by respondent. It appears from the record that Pryor, upon whose protest the order of reference was made, did not therein claim to be a settler upon or occupant of the land, or any part thereof, that he made no application to purchase the same and did not. claim any right, title, or interest therein. In the absence of statutory authority, one who does not himself claim a paramount title or right of possession to the land, or apply to purchase the same from the state, but merely protests against a proposed purchase by another, cannot, by such protest, initiate a contest before the surveyor general against the right of the other person to purchase. Such a person has no interest to protect and no right to interfere between the proposed purchaser and the state. A mere sentimental interest, or a general interest as a citizen in the protection of state property, or in the enforcement of the state policy of selling its arable land only to actual settlers and in limited quantities, or even the particular interest which a qualified person, privileged to purchase state lands and expecting at some future time to apply for the particular tract in question, but who is not a settler thereon, might have in preventing or delaying a prior applicant, would not be a sufficient interest to authorize such a contest. Such interests as these are not property rights. The party who raises such a contest must be one who has some proprietary interest or right of possession, an interest which he would be entitled to protect in some action or proceeding. There are some expressions in the opinion in Tyler v. Houghton, 25 Cal. 26; Higgins v. Houghton, 25 Cal. 259; Thompson v. True, 48 Cal. 606; Cadierque v. Duran, 49 Cal. 357, and Cunningham v. Crowley, 51 Cal. 131, which might seem to announce a rule contrary to this conclusion. But when considered in connection with the context and the facts of the respective cases, it will be seen that they simply lay down the rule that where one claims an interest or right of possession under the United States, or some right under the state law

The

superior to that of the prior applicant, he may contest such proposed sale for the purpose of protecting his superior or paramount right, and that in such a case he may do so by filing a mere protest without himself applying to purchase the land from the state. only case in which a different proposition from this could be claimed to have been asserted is the Higgins Case above cited. that case, however, the protesting persons were said to be "dwellers" upon a mining claim upon which active mining operations were going on, and upon which a large amount of money had been expended, and although it did not appear that these parties themselves were personally asserting a claim to the mine, it was said that they had a sufficient interest to entitle them to raise the contest. This, however, was done upon the authority of Tyler v. Houghton, which decides nothing more than that one having a paramount title under the United States, may contest a purchase, proposed to be made from the state, without himself applying to purchase. The cases cannot be taken as a precedent for the right of Pryor, who had neither possession, interest, or claim, to inaugurate a contest before the surveyor general.

The result is that the surveyor general had no authority to entertain the protest of Pryor. There was, in fact, no contest in his office arising upon that protest and, hence, the order of reference was null and gave the superior court no jurisdiction of the action. Jurisdiction in such cases exists only by virtue of a lawful order of reference, issued upon a real contest, by a party whose protest shows himself entitled to oppose the purchase. Parties cannot give jurisdiction by filing a complaint in a case where there has been no valid order of reference, nor where a reference, has been made without there having been any contest to refer. The court below, therefore, had no jurisdiction of the action, no authority to render judgment of any force for or against either party, and its order denying the right to intervene must be sustained on the ground that it had no jurisdiction either of the action or the intervention. The intervener's attention is called to the amendment of 1899 (St. 1899, p. 182. c. 149) by which lands of this class, suitable for cultivation without reclamation, can be sold only to actual settlers in tracts of 160 acres. The order appealed from is affirmed.

We concur: ANGELLOTTI, J.; LORIGAN. J.; HENSHAW, J.; MCFARLAND, J.; SLOSS, J.; BEATTY, C. J.

(149 Cal. 795)

WATERS v. POOL et al. (Sac. 1,324.) (Supreme Court of California. Oct. 2, 1906.) 1. PUBLIC LANDS-SWAMP LANDS-SALE BY STATE-AFFIDAVIT OF PURCHASE.

One seeking to purchase state swamp lands must aver in his affidavit that he does not know of any legal or equitable claim to the lands oth

er than his own, as required by Act March 2S. 1868 (St. 1867-68, p. 507, c. 415).

fEd. Note. For cases in point, see Cent. Dig. vol. 41, Public Lands, §§ 199, 392.] 2. SAME.

Evidence in a suit to determine the rights to swamp lands examined, and held to warrant a finding that one who sought to purchase the lands truthfully averred in his affidavit, as required by Act March 28, 1868 (St. 1867-68, p. 507, c. 415), that he did not know of any claim to the lands other than his own, so that he and his successors in title acquired title thereto.

3. SAME-WAIVER OF PREFERENCE RIGHT OF PURCHASE.

In an action to determine rights to swamp lands, it appeared that the lands were segregated December, 1870, and that plaintiff had been in possession since 1863. In 1871 a survey was made at the instance of defendants' grantor, who made application to purchase the lands. Held, that plaintiff as actual settler had under the express provision of the act of 1870 (St. 1869-70, p. 878. c. 575), the preference right to purchase, which he lost by failing to make application therefor within 90 days after the filing of affidavits showing that the lands had been segregated, so that the lands could be sold to another.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 41, Public Lands, §§ 200, 394.]

4. SAME-AFFIDAVIT OF PURCHASE.

A survey of swamp lands was made in 1871 at the instance of one who applied for the purchase thereof. The affidavit of purchase was in its essence true, but, after the survey was made, it was found that it conflicted with another survey previously made, and approval thereof was refused. Two years thereafter a new survey was made, removing the conflict, to which the original affidavit was attached. Payment was made and a certificate was issued. Held, that the affidavit must be treated as a new application made subsequent to the time. of the rejection of the first survey, and must be tested as if made subsequent to that time.

In Bank. Appeal from Superior Court, Yolo County; Eugene P. McDaniel, Judge. Action by James Waters against D. C. Pool and others. From a judgment for plaintiff, defendants appeal. Reversed.

Hudson Grant, for appellants. R. Clark, L. Schillig, and G. Clark, for respondent.

PER CURIAM. This is an action to determine the respective rights of plaintiff and defendants to certain swamp and overflowed land on reference by the surveyor general to the superior court of Sutter county. Plaintiff had judgment for the entire tract in controversy from which defendants appeal on bill of exceptions.

It appears that one Lars Johnson, on October 10, 1870, made affidavit before the county surveyor of Sutter county and filed the same with said surveyor, declaring his desire "to purchase, under the provisions of an act to provide for the sale of certain lands belonging to the state, approved March 28, 1868 (St. 1867-68, p. 507, c. 415), and the several acts mandatory thereof, and supplemental thereto a certain tract of swamp and overflowed land, lying and situate on the left bank of the Sacramento river, it being the fractional N. W. 4 of section 19, township 11 N., range

3 E. any legal or equitable claim, other than his own to the said lands." The court found on sufficient evidence that on July 18, 1871, at the request of said Johnson, said county surveyor surveyed said land, platted the same and recorded said plat and filed notes of said survey in the records of swamp land surveys in his office and numbered said survey No. 609 of Sutter county; on July 21, 1871, a copy of Johnson's application of said survey was filed in the office of the surveyor general of the state, attached to a copy of Johnson's said affidavit; said plat, survey and field notes conflicted with the plat, survey and field notes of swamp land survey No. 548 of Sutter county, namely, the N. W. 4 of the N. W. 4 of said section applied for by one McGriff, and Johnson's survey was not then approved, but was subsequently by the surveyor general, returned to the county surveyor of Sutter county, who by his then deputy (formerly the county surveyor) altered and changed said plat and field notes so that the same were made a plat and field notes for a survey of the E. 1% and fractional S. W. 4 of the fractional N. W. 4 of said section 19. omitting the McGriff 40-acre tract, and thereafter the said plat and field notes so altered and attached to a copy of said affidavit of Johnson, were received by the surveyor general, who, on September 9, 1873, indorsed the same: "Approved Sept. 9th, 1873. Robert Gardner, Surveyor General;" that on October 20, 1873, said Johnson paid to the then county treasurer of said county, $24.56, being 20 per cent. of the price of the land embraced in said survey No. 609, and also paid interest on the unpaid balance for one year (it appears by the evidence, however, that interest was paid to September 9, 1876); on November 13, 1873, the register of the state land office issued and delivered to Johnson Certificate of Purchase No. 3,924 for the lands contained in said survey No. 609, as altered and changed, and no patent has ever been issued to Johnson or any other person for the lands in controversy.

and that he does not know of

It appears that plaintiff made application to purchase the land described in the Johnson certificate of purchase, on June 7, 1901, in which he made oath, among other things, that he "is and has been an actual settler and is now such actual settler on said lands, for upwards of 35 years; that during all said time he has actually resided on said lands with his wife and family or children; that he has improved the same by clearing about 25 acres and has at all times maintained his home on said lands since 1863; that there are adverse occupants of said land adverse to affiant (naming some of defendants), but they have been occupants of a portion of the land for more than 60 days since the plat of said lands was filed in the United States Land Office; that he knows the land applied for and its exterior bound