At the date of the contract alleged in the complaint, the land in controversy was unsurveyed land of the United States, and could not then have been purchased from the State by either party; and before the plat of the survey was filed in the local land office, the lands had been withdrawn from sale and reserved in favor of the Central Pacific Bail-road and its branches, and so remained until it was purchased by the defendant in pursuance of his application as a pre-emptioner. During all that time the agreement alleged in the complaint was incapable of execution, as the lands could not have been purchased from the State by either party; and it is not shown that at any time after the lands have been so reserved for the railroad they could have been purchased from the State had the defendant not purchased them from the United States; that is to say, it is not shown that the railroad company would not have acquired the title had not the defendant purchased the lands in pursuance of his pre-emption claim. It, therefore, cannot be said that the defendant, by his purchase from the United States, defrauded the plaintiff; nor that by reason of the agreement, or any other fact in the case, the defendant is estopped to rely on his title so acquired from the United States.

Judgment and order reversed, and cause remanded.