JUDGES: Wallace, C. J. Neither Mr. Justice Niles, nor Mr. Justice McKinstry, expressed an opinion.
OPINION
WALLACE, Judge
The plaintiff, holding the United States patent has the legal title to the premises in controversy, and the judgment in his favor was correctly rendered, unless the action was barred by the Statute of Limitations, or unless the equitable defense set up by the defendant in possession will avail him.
1. The proof was substantially conflicting as to whether the possession had been adverse for the period of five years after the patent issued, and we will not disturb the finding upon that issue.
2. The equitable defense set up is based upon a supposed agreement between the plaintiff and one Bennett (under whom the defendant claims) by which agreement the plaintiff, at the time claiming the benefit of the Act of Congress of September 4th, 1841, entitled " an Act to appropriate the proceeds of the sales of the public lands and to grant pre-emption rights," and before making proof and payment as a pre-emptor covenanted that, upon receipt of a patent, from the Government, he would convey the premises in controversy to said Bennett.
It is too plain to merit discussion that this agreement is " null and void" under the 13th Section of the Act referred to (5 U.S. States at Large, p. 456; Damrell v. Meyer , 40 Cal. 166.) The law is well settled that an executory contract of that character cannot be enforced. It cannot become the foundation of relief for a party setting it up.
Judgment and order denying new trial affirmed--remittitur forthwith.