BOHALL

v.

DILLA

Mr. Justice Field,

after making the foregoing statement, delivered the opinion of the court.

The system of pleading in civil cases in the courts of California permits an equitable defence to be set up in a special count, by way of cross-complaint, in the answer to an action for the possession of lands. The cross-complaint is in the nature of a bill in equity, and must contain its material allegations, disclosing a case which, if established, would entitle the defendant to a decree enjoining the further prosecution of the adtion, or directing that the title be conveyed to him. This equitable defence is therefore to be first considered, for according to its disposition, Avill the necessity exist for further proceedings in the action at law, in which the legal title of the parties will alone control. Quinby v. Conlan, 104 U. S. 420; Estrada v. Murphy, 19 Cal. 248 and 273; Arguello v. Edinger, 10 Cal. 150.

We do not think the claim of the defendant to the equitable relief he seeks can be sustained on the grounds stated in his answer or cross-complaint. To charge the holder of the legal title to land under a patent of-the United States, as a trustee of another, and to compel him to transfer the title, the claimant must present such a case as will show that he himself was en titled to the patent from the Government, and that in consequence of erroneous rulings of the officers of the Land Depart-' ment upon the law applicable to the facts found, it was refused to him. It is not sufficient to show that there may have been error in adjudging the title to the patentee. It must appear that, by the law properly administered the. title should have been awarded to the claimant. Smelting Co. v. Kemp, 104 U. S. 636, 647; Boggs v. Merced Mining Co., 14 Cal. 279, 363. It is therefore immaterial for the decision of this case what our judgment may be upon the conclusions of those officers as to the possession of the patentee. It is plain that the defendant, Bohall, did not' bring himself within the provisions of the pre-emption laws. Those laws are intended for the'benefit of persons making a settlement upon the public lands, followed by residence and improvement and the erection of a dwelling thereon. This implies a residence both continuous and personal. No • such continuous residence was shown on the part of Bohall. He was placed in possession of the premises under the judgment of the State court in May, 1868; and it was necessary to prove that he occupied them continuously after filing his declaratory statement. It was shown, however, that he resided elsewhere from July, 1869, to December, 1871, and from April, 1872, to August, 1874. Though he claimed the'land for six years he and his family resided elsewhere-during four of them, and no sufficient excuse for such residence was offered. It is only under special circumstances that residence away from the land is permissible. The settlér may be excused for temporary absences caused by well founded apprehensions of violence, by sickness, by the presence of an epidemic, by judicial compulsion, or by engagement in the military or naval service. Except in such and like cases the requirement of a continuous residence on the part of the settler is imperative.

The alleged fraud of Dilla in obtaining possession under the alleged contract, if any such fraud existed, could have had no effect upon the defendant’s residence after his restoration to the land in May, 1868.

As he could not maintain his equitable defence, the plaintiff was entitled to judgment upon his legal title as shown by his patent. • Judgment affirmed.