There was no valid homestead claim in the plaintiff, his inceptive claim being lost by his failure to reside upon the tract, and this appearing by the complaint, the demurrer was rightly sustained. (U.S. Law of 1862, Sec. 5; 2 Brightly's Digest, 288; Athearn v. Poppe , 42 Cal. 607.)
The complaint was insufficient in this: that it charges no specific acts of fraud, or no facts respecting untrue evidence or statements. That fraud must be distinctly alleged, and cannot be avoided by general language, is well settled as a rule of pleading. (Kent v. Snyder , 30 Cal. 666; Castle v. Bader , 23 Cal. 75; Butler v. Viele, 44 Barbour, 166.)
The allegations are, that there was a conspiracy to procure the cancellation of the homestead entry by false evidence, and cause, for the benefit of defendant, a patent to issue to Clark, and that false evidence and statements were so produced, and that Clark thereby established a valid preemption claim to the land. We are neither given time, place, circumstance, element, nor feature of any of this so called false evidence.
OPINION By the Court:
We are of opinion that the complaint is sufficient as against the general demurrer interposed by the defendants. (Johnson v. Towsley, 13 Wallace, 72.)
Judgment reversed and cause remanded with directions to overrule the demurrer.