The demurrer to the equitable defense was sustained, and the propriety of the ruling of the court below in this respect is the only question presented for our consideration. It is alleged in that defense that in the contest before the register and receiver, Hall, the plaintiff’s grantor, produced evidence to the purport and effect that the defendant, Cur*493tis Brigham, left land of his own to settle upon the quarter section in controversy, and “ that said evidence was wholly false, and that the said Hall and Abling well knew at tho time that they produced said evidence before the said register and receiver that the same was wholly false.” It is further alleged in the said .equitable defense of the defendant, Curtis Brigham, that the said register and receiver, and upon an appeal taken, the Commissioner of the General Land Office, were imposed upon and deceived by said false evidence, and were thereby led to award the land to Hall, instead of the defendant, Curtis Brigham. Under the settled rule governing controversies of this character, an equitable defense setting forth that the decision of the Land Department ivas procured by willfully false testimony, fraudulently adduced by the successful party, would entitle the defendant to be relieved.

Judgment reversed and cause remanded, with directions to overrule the demurrer to the equitable defense.

concurring:

The cross-complaint states facts sufficient to show that the defendant possessed all the qualifications of a preemptor; that he performed all the acts required on his part to enable him to secure the right of pre-emption; that he made the requisite proof before the register and receiver of the matters upon which his rights depended; and from those facts it appears that his claim to the right of pre-emption was superior to that of the plaintiff. It is also stated that there was a contest between Hall, the plaintiff’s grantor, and tho defendant, in respect to the right of pre-emption; that the matter was tried by the register and receiver, and that after the matter was decided by those officers, appeals were successively taken to the Commissioner of the General Land Office and to the Secretary of the Interior; that tho decision of each of those officers Avas in favor of Hall; but that such decisions resulted from false testimony, produced on the part of Hall, to the effect that the defendant had left his own land to settle upon the land in controversy.

The demurrer to the cross-complaint was sustained.

*494One of the questions arising upon these facts is whether the decisions of the officers of the Land Department, in a contest respecting the right of pre-emption, is final and conclusive upon all the issues of fact determined by them; or, in other words, whether in an action instituted by a party to the contest before the Land Department, to compel the other party to convey to him the title acquired from the United States, the Court can inquire into the facts upon which the claims of the respective parties depend, when the defeated party to the contest does not set up and show in the action fraud, accident or mistake, or some other ground of equitable jurisdiction. I have given my solution of this question in Rutledge v. Murphy, ante, p. 388, and am of the opinion that the demurrer to the cross-complaint should have been overruled.

dissenting:

I respectfully dissent. In case of contest before the Land Department between pre-emption claimants, the State •courts will not retry a question of fact, unless on suggestion of fraud, or other grounds of equitable cognizance. (Burrill v. Haw, 48 Cal. 222; Quinn v. Kenyon, 38 Cal. 499.)

The defendant could not have been taken by surprise by the testimony offered by plaintiff before the land officers in respect to his (defendant’s) ownership of other lands than those he sought to pre-empt. If he neither owned nor claimed other lands, this fact, from its very nature, he must have been prepared to establish. The prayer of defendant, therefore, is simply to have an issue of fact retried, which he was prepared to try, and, in fact, did try, before the land officers. It was not enough to say that the plaintiff introduced false testimony, knowing it to be false, but defendant should also have shown that he ivas deprived of an opportunity to establish the truth. The truth or falsehood of the statements of plaintiff’s witnesses was itself an issue before the land officers, which, for aught that appears, defendant was fully prepared to meet and did meet.