On the twenty-ninth day of September, 1858, Dolhequy made a request to the locating agent to have the land in question located under the Act of April 23d, 1858. The selection was made in the United States Land Office on the fourth day of October, 1858. On the sixteenth day of November, 1858, one James C. Tabor made a' claim at the United States Land Office to have a preemption right to a portion of the land. Upon a notice to the parties interested, this claim was investigated by the United States Register, and on the eleventh day of January, 1859, a decision was made against the claim, from which decision the claimant, on the twelfth day of January, 1859, appealed to the United States Commissioner of the General Land Office, and on the sainé day the United States Register transmitted a transcript of- all the papers and proceedings and testimony in the case to the Commissioner, and notified Dolhequy that the approval of the location made by the State in his behalf, and all further proceedings in regard to said location were thereby suspended. Dolhequy thereupon deposited with the United States Register the sum of one hundred and twenty dollars, to be paid to the State for the first payment of twenty per cent, and interest, if his location should be finally allowed.

*282The United States Commissioner of the General Land Office, on the tenth day of August, 1860, decided against the claim of James C. Tabor to a preemption right, but before his decision was known to the Register here, Dolhequy, on the fifteenth day of August, 1860, withdrew his money from the hands of the Register. In the meantime—to wit, on the thirteenth day of July, 1860—one Fowler procured a location of the same land to be made in his behalf, and received a certificate of ptirchase for the same. This certificate has since been transferred to the defendant, John A. Tabor, who advanced the money by which the certificate was obtained, and who, it appears by the undenied allegations of the complaint and the proofs, had fall knowledge of the proceedings taken by Dolhequy to procure a certificate of purchase, and of the suspension of those proceedings in consequence of the appeal taken by James C. Tabor from the decision on his preemption claim, and for whose benefit it may clearly be inferred the certificate was procured in the name of Fowler. The decision of the Commissioner of the General Land Office was received by the Register in California on the thirteenth day of September, 1860, and Dolhequy on the sixth day of October, 1860, paid to the County Treasurer on his location, the sum of one hundred and seventy-nine dollars, being the amount of the twenty per cent, and three years’ interest, and the Treasurer’s fee.

The defendant claims that the plaintiff forfeited his right to a certificate of purchase by not paying for it in due time.

The Act of 1858 does not specify the time when payment is to be made, and the application to become a purchaser was not made by Fowler until long after the proceedings under Dolhequy’s application had been suspended. Dolhequy’s rights, we think, continued in force during the pending of the appeal by James C. Tabor, and until the result of that appeal was known at the United States Register’s office. By Sec. 4 of the Act of 1859, supplementary to the Act of 1858, the twenty per cent, is to be deemed to be due and payable within fifty days after the approval of the Surveyor General is recorded by the locating agent. The approval of the Surveyor General does not appear to have been filed in the matter after the decision of the United States Commissioner of the *283General Land Office upon the appeal of James C. Tabor, but it could not have been filed until that decision was known here, and within fifty days of that time, and when the law of 1859 had taken effect, Dolhequy paid the twenty per cent, and interest to the County Treasurer. Under these circumstances, we think he has the prior and better right to the certificate of purchase. Nothing has occurred from the time he first made his application by which his rights under that application have become forfeited. The deposit he made with the Register was not necessary, and its withdrawal did not affect his right. The defendant, having taken his certificate with full knowledge of Dolhequy’s rights, must be deemed to hold it in trust for him, and should be required to transfer it to him upon being reimbursed his expenses.

The judgment is therefore reversed and the Court below directed to enter a decree as prayed for in the complaint.