The opinion
Paterson, J., concurring.
I concur. The court found that “the plaintiffs’ right of recovery of the land in controversy is based on a patent from, the United States to the Southern Pacific Railroad Company, dated April 4, 1879, and a deed of said land from said company to the plaintiffs dated January 20, 1887.”
Neither the company nor plaintiffs were ever in possession of the lands. Defendant was in the actual possession more than a year prior to plaintiffs’ purchase from the company, and has ever since been in exclusive possession, claiming the land under the pre-emption laws. Ten days prior to the date of plaintiffs’ purchase from the company, defendant tendered a declaratory statement and the usual fees to the officers of the United States land-office, and upon their refusal to accept the same, he immediately filed an appeal to the commissioner of the United States land-office. That appeal is still pending. These facts, under the decision of the supreme court of the United State! in Doolan v. Carr, supra, entitled the defendant to question the validity of the patent from the United States, and they exclude plaintiffs from the benefit of the act of Congress passed March 3, 1887, for the relief of bona fide purchasers. They are not bona fide purchasers. (14 Copp’s Landowner, 214-217.)
McFarland, J., concurred in the judgment.