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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 par: 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.

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 ($300.00). 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; $.30 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

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. $ 1917, 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.

MILBURY, J. Application for writ of re view. 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 in

der the will. On January 4, 1905, the execu HOLLOWAY, J. I agree with what is said trix filed a final account showing that there above. I am of the opinion that relators had been $70,000 received and $20,606.93 ex may have relief by mandamus. Raleigh v. pended, and asking that the balance be set District Court, 31 Mont. 306, 61 Pac. 991. over to her as the sole beneficiary. On the 13th day of February, 1905, tiro minor children, called John R. Cotter and Vivian Anna

(34 Mont. 306) Cotter, alleged to be the illegitimate children STATE ex rel. COTTER et al. v. DISTRICT of the testator, appeared by their mother, Ida COURT OF SECOND JUDICIAL Cavelle, and prayed for the appointment of

DISTRICT. C. V. Parr, Esq., as attorney for the children

(Supreme Court of Montana. June 27, 1906.) in the probate proceedings. The court appointed Mr. Parr attorney as prayed. On the

INFANTS — APPOINTMENT OF ATTORNEY - RE

VIEW-SCOPE OF REMEDY. 13th day of February, 1905, the children, by

The action of the district court, proceeding the appointed attorney, filed their objections regularly, in granting a motion to vacate its to the final account and petition for distribu- order, appointing an attorney for minors in tion. The widow, appearing in propria per

probate proceedings, not being in excess of

jurisdiction, but at most erroneous, or in abuse sona and as executrix, mored, on February of discretion, is not reviewable by writ of re23, 1905, to strike out the objections made by view. the children, giving her reasons at length. The court answers that testimony was taken

Application by John R. Cotter and another, on the hearing of the motion to strike the

by their duly appointed attorney, C. M. Parr, objections, and that it appeared that there

for writ of review to the district court of

the Second judicial district and Hon. Michael was not any writing produced to prove that the deceased had ever acknowledged the chil

Donlan, a judge thereof. Dismissed. dren as his. Thereafter, on March 4, 1905, G. J. Langford, for relators. John J. MCthese matters all came on for hearing, and Hatton, for respondents. on the 9th day of April of the following year the court made its order granting the motion MILBURN, J. Application for writ of reto strike out the objections to the final ac view. On motion to quash order to show count and the petition for distribution. The

cause why writ of review should not issue. children, by their attorney, now, in their peti. The court having, on the 13th day of Febrution for review, declare that the court and

ary, 1905, appointed C. J. Parr, Esq., as judge thereof, in granting the motion to

attorney for the alleged children of one strike out their objections, exceeded jurisdic

Cotter, deceased (mentioned in the state. tion, and further say that there is not any

ment made in the case of State v. District appeal from said order, and that they have

Court et al., 87 Pac. 614, which see for. not any plain, speedy, or adequate remedy. It

the other facts herein), did on the 9th day is true that there is not any appeal provided

of April of the next year, on motion of the by law from such an order Section 1722,

executrix, vacate the order appointing Mr. subsection 3, Session Laws, 1899, p. 146.

Parr as such attorney. Did the court exceed its jurisdiction or act

That an attorney may be appointed in the without jurisdiction? The review upon the

discretion of the court, for minor heirs in writ invoked in this matter cannot be ex

probate proceedings is apparent from what tended further than to determine whether

is said in State ex rel. Eakins v. District the court below regularly pursued its author

Court, 85 lat. 1022, and Carpenter v. Superior ity. Code Civ. Proc. § 1947. The motion

Court, 75 Cal. 596, 19 Pac. 174, and section to strike the objections came regularly be

2923 of the Code of Civil Procedure. The fore the court. It was considered, and the

court was proceeding regularly in hearing duty of the court was to grant or deny. In

and determining the motion to vacate the granting the motion it may have done wrong.

order appointing the attorney. As we say But the question as to whether or not the

in the other Cotter Case, ante, the court may court erred in granting the motion cannot be

have erred, and, if so, we cannot correct the inquired into in certiorari proceedings.

wrong in this proceeding. To abuse disAn order to show cause why the writ

cretion is not to act without jurisdiction or should not issue was made by this court. If

in excess of jurisdiction. It may be that the court below should make an erroneous

these children are, in fact, the heirs of the order settling the account of the executrix,

deceased, and may have been lawfully acor should err in directing distribution, an ap

knowledged by their alleged father in writpeal may be taken, and on such appeal the

ing and therefore entitled to inherit part error, if any, as to the striking of the ob

of the property. They should have a fair jections, might be considered.

chance to prove their status in a proper proWhatever remedy the complaining party

ceeding. If this matter were brought before may have, it is not by writ of review.

us on petition for writ of supervisory conOrder to show cause quashed, and pro

trol, a different question would be presented, ceedings dismissed.

and, possibly, the children might be entitled Dismissed.

to some relief from this court, but this we BRANTLY, C. J., concurs.

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. 1,160.) (Supreme Court of California. Oct. 2, 1906.) 1. APPEAL-DECISION REVIEWABLE-FORM OF JUDGMENT_ORDER DEXYING INTERVENTIOX.

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, sce Cent. Dig. vol. 2, Appeal and Error, $ 876.] 2. SAME-FIXAL 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 (ases in point, see Cent. Dig. vol. 2. Appeal and Error, $ 368.] 3. PUBLIC LAXDS-DISPOSAL OF STATE LANDS

--GRAXT TO INDIVIDUAL-RIGIIT TO PROTEST.

One not claiming any right, title, or interest, in land filecl on for purchase from the state as not suitable for cultivation, and who does not himself propose to purchase such land, (annot 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, § 391.] 4. SAVE JURISDICTION OF COURT.

l'ol. Code, $ 3+14, 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. Xote.-For cases in point, see Cent. Dig. vol. 41, Public Lands, $ 39-4.] 5. APPEAL – REVIEW - INTERVENTIOX-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. ('ode, $ 3411, 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, $ 3106.7

In Bank. Appeal from Superior Court, Kings County; J. 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, ('asar appeals. Affirmed.

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

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

Dollenmayer filed his application, on November 28, 1903, to purchase an entire section as land not suitable for cultiva-. tion. IIis 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 Wellen. Afterward on July 20, 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 demandled 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, 1.90.5.

On August 10, 130.5, 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 lie 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 Ciesar's rights, that Dollenmayer did not apply to purchase in good faith, but for the benefit of Vellen, to whom he had previously agreed to sell the land, that Pryor's protest Was tiled in collusion with Dollenmayer and Nellen, in pursuance of an agreement that Cryor 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

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

of the intervener and declared that Cesar ! superior to that of the prior applicant, he may should not intervene in the action, and that contest such proposed sale for the purpose of his proposed complaint should not be filed protecting his superior or paramount riglit, therein. The most verbose statement could and that in such a case he may do so by filnot state the determination more acurately ing a mere protest without himself applying or effertually. So far as the intervener and to purchase the land from the state. The his rights in that action were concerned, it only case in which a different proposition was final. We see no good end to be secured from this could be claimed to have been asby requiring him to await.judgment between serteil is tlie Iliggins Case above cited. In the other parties, after a trial in which he that case, however, the protesting personis (ould not participate. It ended the litigation were said to be "dwellers" upon a mining as to him, and he should be allowed an im claim upon which active mining operations mediate appeal. Stich v. Goldner, 3S Cal. were going on, and upon which a large 010; People v. Pfeiffer, 59 Cal. 90; Domer amount of money had been expended, and alr. Palmer, 45 Cal. 180. Anything in Wenborn though it did not appear that these parties 1. Boston, 23 Cal. 321, contrary to this rule, themselves were personally asserting a claim must be considered as overruled by these to the mine, it was said that they had a suflater decisions. Upon the merits of the ap ficient interest to entitle them to raise the peal we are of the opinion that the action of contest. This, however, was done upon the the court below must be sustained, but for authority of Tyler v. Houghton, which dereasons different from those presented by re cides nothing more than that one having a spondent. It appears from the record that paramount title under the United States, may Pryor, upon whose protest the order of refer contest a purchase, proposed to be made from ence was made, did not therein claiin to be the state. without himself applying to pura settler upon or occupant of the land, or any chase. The cases cannot be taken as a precpart thereof, that he made no application to edent for the right of Pryor, who had neipurchase the same and did not claim any ther possession, interest, or claim, to inauguright, title, or interest therein. In the ab rate a contest before the surveyor general. sence of statutory authority, one who does not The result is that the surveyor general had himself claim a paramount title or right of no authority to entertain the protest of Pryor. possession to the land, or apply to purchase There was, in fact, no contest in his office the same from the state, but merely protests arising upon that protest and, hence, the oragainst a proposed purchase by another, (an der of reference was null and gave the sunot, by such protest, initiate a contest before perior court no jurisdiction of the action. the surveyor general against the right of the Jurisdiction in such cases exists only by virother person to purchase. Such a person has tue of a lawful order of reference, issued upno interest to protect and no right to inter on a real contest, by a party whose protest fere between the proposed purchaser and the shows himself entitled to oppose the purchase. state. A mere sentimental interest, or a gen Parties cannot give jurisdiction by filing a eral interest as a citizen in the protection of complaint in a case where there has been no state property, or in the enforcement of the valid order of reference, nor where a referstate policy of selling its arable land only ence, has been made without there having to actual settlers and in limited quantities, been any contest to refer. The court below, or even the particular interest which a quali therefore, had no jurisdiction of the action, fied person, privileged to purchase state lands no authority to render judgment of any force and expecting at some future time to apply for or against either party, and its order deyfor the particular tract in question, but who ing the right to intervene must be sustained is not a settler tliereon, might have in pre on the ground that it had no jurisdiction venting or delaying a prior applicant, would either of the action or the intervention. The not be a sufficient interest to authorize such intervener's attention is called to the amenda contest. Such interests as these are not ment of 1899 (St. 1899), p. 182, c. 149) by property rights. The party who raises such which lands of this class, suitable for culti. a contest must be one who has some pro vation without reclamation, can be sold only prietary interest or right of possession, an to actual settlers in tracts of 160 acres. interest which he would be entitled to pro The order appealed from is affirmed. teet in some action or proceeding. There are some expressions in the opinion in Tyler v. We concur: ANGELLOTTI, J.; LORIGAX. IIoughton, 2.5 Cal. 26; Higgins v. IIoughton, J.; TIENSILAW, J.; MCFARLAND, J.; 2.5 ('al. 279; Thompson r. True, 18 Cal. 606; SLOSS, J.; BEATTY, C. J. Cadierque v. Duran, 49 Cal. 3.37, and Cunningham 1. Crowley, 51 (al. 1:31, which might seem to announce a rule contrary to this con

(149 Cal. 795) clusion. But when considered in connection WATERS 1. POOL et al. (Sac. 1,324.) with the context and the facts of the respec (Supreme Court of California. Oct. 2, 1906.) tive cases, it will be seen that they simply 1. PUBLIC LANDS-SWAMP LANDS-SALE BY lay down the rule that where one claims an

STATE-AFFIDAVIT OF PURCHASE. interest or right of possession under the l'nit

One seeking to purchase state swamp lands

must aver in his affidavit that he does not know ed States, or some right under the state law of any legal or equitable claim to the lands oth

er than his own, as required by Act March 2S. 3 E.

and that he does not know of 1868 (St. 1867-68, p. 507, c. 415).

any legal or equitable claim, other than his fEd. Note.-For cases in point, see Cent. Dig. vol. 41, Public Lands, $$ 199, 392.]

own to the said lands." The court found on

sufficient evidence that on July 18, 1871, at 2. SAME. Evidence in a suit to determine the rights

the request of said Johnson, said county surto swamp lands examined, and held to warrant veyor surveyed said land, platted the same a finding that one who sought to purchase the and recorded said plat and filed notes of said lands truthfully averred in his affidavit, as survey in the records of swamp land surveys required by Act March 28, 1868 (St. 1867-68, p. 507, c. 415), that he did not know of any

in his office and numbered said survey No. claim to the lands other than his own, so that

609 of Sutter county; on July 21, 1871, a copy he and his successors in title acquired title of Johnson's application of said survey was thereto.

filed in the office of the surveyor general of 3. SAME-WAIVER OF PREFERENCE RIGHT OF PURCHASE.

the state, attached to a copy of Johnson's In an action to determine rights to swamp

said affidavit; said plat, survey and field lands, it appeared that the lands were segregated notes conflicted with the plat, survey and December, 1870, and that plaintiff had been in possession since 1863. In 1871 a survey was

field notes of swamp land survey No. 548 of made at the instance of defendants' grantor,

Sutter county, namely, the N. W. 14 of the who made application to purchase the lands. N. W. 14 of said section applied for by one Held, that plaintiff as actual settler had under McGriff, and Johnson's survey was not then the express provision of the act of 1870 (St. 1869-70, p. 878, c. 575), the preference right

approved, but was subsequently by the surto purchase, which he lost by failing to make veyor general, returned to the county surveyapplication therefor within 90 days after the or of Sutter county, who by his then deputy filing of affidavits showing that the lands had been segregated, so that the lands could be sold

(formerly the county surveyor) altered and to another.

changed said plat and field notes so that the [Ed. Note.For cases in point, see Cent. Dig. same were made a plat and field notes for vol. 41, Public Lands, S$ 200, 394.]

a survey of the E. 12 and fractional S. W. 4. SAME-AFFIDAVIT OF PURCHASE.

14 of the fractional N. W. 14 of said section A survey of swamp lands was made in

19. omitting the McGriff 40-acre tract, and 1871 at the instance of one who applied for the purchase uhereof. The affidavit of purchase

thereafter the said plat and field notes so was in its essence true, but, after the survey altered and attached to a copy of said affidawas made, it was found that it conflicted with vit of Johnson, were received by the surveyanother survey previously made, and approval thereof was refused. Two years thereafter a

or general, who, on September 9, 1873, innew survey was made, removing the conflict,

dorsed the same: "Approved Sept. 9th, 1873. to which the original'affidavit was attached. Robert Gardner, Surveyor General;" that on Payment was made and a certificate was issued. October 20, 1873, said Johnson paid to the FI eld, that the affidavit must be treated as a new application made subsequent to the time

then county treasurer of said county, $24.56, of the rejection of the first survey, and must be being 20 per cent. of the price of the land emtested as if made subsequent to that time. braced in said survey No. 609, and also paid In Bank. Appeal from Superior Court,

interest on the unpaid balance for one year Yolo County; Eugene P. McDaniel, Judge.

(it appears by the evidence, however, that inAction by James Waters against D. C. Pool

terest was paid to September 9, 1876); on and others. From a judgment for plaintiff,

November 13, 1873, the register of the state defendants appeal. Reversed.

land office issued and delivered to Johnson

Certificate of Purchase No. 3,924 for the Hudson Grant, for appellants. R. Clark, L. Schillig, and G. Clark, for respondent.

lands contained in said survey No. 609, as altered and changed, and no patent has ever

been issued to Johnson or any other person PER CURIAM. This is an action to de

for the lands in controversy. termine the respective rights of plaintiff and defendants to certain swamp and overflowed

It appears that plaintiff made application land on reference by the surveyor general to

to purchase the land described in the John

son certificate of purchase, on June 7, 1901, the superior court of Sutter county. Plain

in which he made oath, among other things, tiff had judgment for the entire tract in con

that he "is and has been an actual settler troversy from which defendants appeal on bill of exceptions.

and is now such actual settler on said lands, It appears that one Lars Johnson, on Octo

for upwards of 35 years; that during all

said time he has actually resided on said ber 10, 1870, made affidavit before the county

lands with his wife and family or children; surveyor of Sutter county and filed the same with said surveyor, declaring his desire “to

that he has improved the same by clearing purchase, under the provisions of an act to

about 25 acres and has at all times mainprovide for the sale of certain lands belong

tained his home on said lands since 1863; ing to the state, approved March 28, 1868 (St.

that there are adverse occupants of said 1867-68, p. 507, c. 415), and the several acts

land adverse to affiant (naming some of demandatory thereof, and supplemental thereto

fendants), but they have been occupants of a certain tract of swamp and overflowed a portion of the land for more than 60 days land, lying and situate on the left bank of since the plat of said lands was filed in the the Sacramento river, it being the fractional United States Land Office; that he knows N. W. 14 of section 19, township 11 Y., range the land applied for and its exterior bound

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