Knowles, J.
The first proposition I shall consider in this case [318] is: Was the demurrer to the new matter set forth in the defendant’s answer properly sustained ? The demurrer is in effect, that the new matter set forth in the answer, in no light in which it can be properly viewed, presents a proper defense to plaintiff’s complaint. The first defense is, that of an estoppel by judgment record. To sustain this the answer alleges that the defendants, Frohner and JBarta, located and become the owners of, by location, certain mining claims, known and described as the Cannon and the Cannon Extension claims ; that John Rogers and others located the same ground as “ the Star of the West Lode,” and went into the possession of the same; that to recover the possession thereof, defendants, Frohner and Barta, brought an action, which was decided in their favor,- and judgment of possession was awarded them under which the same was restored; that pending such litigation Agno, the grantor of plaintiffs, purchased the interest of the said Rogers and others in the said “ Star of the West ” location and went into possession of the said property, and undertook to defend said suit, and that he was therefore a privy in said action, and bound by the judgment therein. I agree to the proposition that the said Agno, under this state of facts, is estopped from setting up any claim or interest he may have acquired in “ the Star of the West ” location, from the said Rogers and others.
But it does not appear that the title in dispute in the case is' that derived from “the Star of the West” location. In Big. on Estop. 523,1 find this: “ But in pleading or replying a judgment as an estoppel to an action or allegation more minuteness, must be observed. It-must now be made to appear that precisely the same point was in issue at the former trial, as that now in question, or there can be no estoppel.”
The allegations setting forth the estoppel in this case did not show that the plaintiffs are claiming any thing by virtue of “ the Star of the West” location. The'trial of this cause shows that “ the Star of the West ” location was not in issue ; that the plaintiffs in the case claimed nothing by virtue of the same, but claimed title to the same by virtue of a patent from the United States. Hence the judgment in the case pleaded could not have [319] worked an estoppel to the giving the same in evidence, and would have made no difference in this action. It is trae that in .the case of Barta and Frohner against Rogers and others, the right to the possession was determined, but that right in that case depended upon a different state of facts from that presented in this case. A party who has been adjudged to deliver possession of land to another claimant is not estopped from purchasing, subsequent to the action in which the right to such possession was determined, an outstanding title, and asserting again his right to the possession of the samó. Valentine v. Mahoney, 37 Cal. 389; Mann v. Rogers, 35 id. 316; Montgomery v. Whiting, 40 id. 294.
There is nothing worthy of much discussion in the point that the subsequently-acquired titles of Agno should inure to the benefit of Frohner and Barta. They were not the purchasers of any title from Agno or Rogers et al. The doctrine that asserts that the subsequently-acquired title of one man inures to the benefit of another, applies only where the latter is a purchaser of a title from the former. The said judgment in favor of Barta and Frohner did not make them the purchasers of any title from Rogers et al., or from Agno.
Each defense should be complete in itself. If a pleader does not wish to restate matters already pleaded in one defense, he should refer to such matters by appropriate words, and make them a part of any defense where he desires them to appear. Moak’s Van San. Pl. 606; White v. Cox, 46 Cal. 169.
In considering the remaining issues presented by the answer, I find-myself much at a loss. None of these defenses are stated separately, nor is either complete without referring to matters evidently averred and intended for another defense. The answer evidently unites several defenses, and a cross-complaint in what I think must be treated as one count. The defenses and cross-bill are not separately stated, but there was no demurrer to the answer for this reason. The defendants urge that the title of the plaintiffs had its inception in fraud of their rights; that Agno’s location of the same was made while he was in possession thereof under “ the Star of the West ” location. This is true under the allegations in the answer, but the answer shows that this location [320] was made subsequent to the trial of the ease between Barta and Frohner and Rogers et al. His rights under this location could not have been determined in that case. A party is precluded and estopped by any title he put in issue in a litigation, or which he might have put in issue, and by no other. Mann v. Rogers, 35 Cal. 316. The acquiring of mining ground by location is procuring such right by purchase.
Wash, on Real Prop., vol. 3, p. 4, says: “ In one thing all writers agree, and that is in considering that there are two modes only, regarded as classes, of acquiring a title to land, namely: descent and purchase.” Certainly no one would contend that when a person locates mining ground, he acquires a right to the same by descent. He must acquire it then by purchase. The fact that Agno made a location of this mining claim, while he was in possession under “the Star of the West ” location, puts him in no different condition from what he would have been, had he purchased an outstanding title otherwise than by location at that time. I have shown in the cases of Valentine v. Mahoney, Mann v. Rogers and Montgomery v. Whiting, cited above, that he may do this. And how it would be fraud to do so I cannot see. It is alleged that Agno knew that defendants had the title to said ground, and that the same was not open to location. It is not necessary when a man buys in an outstanding title, for him to know that it is a valid title. And if he should not know that it was a valid title, or should know that it was not, I do not see how he can be charged with fraud. If his title was not a valid one, he would acquire nothing by it, and the person in possession of the property thus acquired would have a legal defense against the same. I have been unable to find any authority for the assertion that the person acquiring an outstanding title under such circumstances would be regarded as having committed a fraud even if he knew he had not procured the valid title by such purchase. The fraud, alleged to have been practiced by Agno upon the defendants in preventing them from contesting his application for a patent, will be considered under the plea of estoppel in pais. Taking the whole answer together, can there be enough extracted from it to show such a'n estoppel? The gist of the mat[321] ters which can be treated as snch a defense, are the alleged false and fraudulent representations of Agno. For Agno and those in privy with him to be estopped by these it must appear: First, that there were representations concerning material facts; Second, the representations must have been madeVith the knowledge of the facts ; Third, the party to whom they were made must have been ignorant of the truth of the matter; Fourth, they must have been made with the intention that they Should be acted upon; Fifth, they must have been acted upon. Big. on Fraud, 488; Kerr on Fraud and Mistakes, 93; Biddle Boggs v. Merced Mining Co., 14 Cal. 279.
There is no allegation in the answer that the representations of Agno were made with the intent that the defendants should act upon the same. To have set up a complete defense of estoppel in pais, the answer should have contained such an allegation. Moak’s Tan Sant. PL 336.
There are certain allegations of fraud in the answer which tend to establish a fraud upon the United States by Agno in procuring a patent to the ground in dispute. For this only the United States can attack the said patent. Mowrey v. Whitney, 14 Wall. 434; Wash. on Real Prop., Vol. 3, p. 180; Field v. Seabury, et al., 19 How. (U. S.) 323. From the brief of appellants it appears that this answer should also be treated as a cross-complaint. A cross-complaint should certainly be set forth separate and distinct from those portions of the answer which are intended for defenses, and should be complete in itself. In order to find anything approaching a cross-complaint in this case portions of the answer must be referred to which were evidently intended for such defenses, as estoppel of record and estoppel in pais.
There is nothing in that portion of the ánswer intended for a cross-complaint which sets up title in the defendants, and I will have to refer to these allegations setting'up an estoppel by record to find such allegations. But as the point was not distinctly raised by the demurrer, I will consider the whole answer and determine whether or not sufficient is alleged therein to entitle the defendants to the relief asked. The relief asked is a declaration that defendants and not Agno were entitled to a patent from the [322] United States, to the ground in dispute, and hence Agno occupied but the place of the United States and was only a trustee of the legal title for the benefit of these defendants, and the plaintiffs having notice of defendant’s equities are also but similar trustees. I am aware' of and fully recognize the legal proposition that where one person has procured a patent to any portion of the public domain from the general government, for which another party is entitled to a patent, that the former may be declared a trustee for the latter and adjudged to convey to him the legal title. But this latter person must show that in equity he is entitled to this conveyance. G-enerally speaking he would not be entitled to this conveyance unless he was entitled to one from the United States. The location of a parcel of mining ground in accordance with the United States law and the local laws upon the subject, does not entitle a person to a patent from the United States. He has the right to apply for a patent, and he only. It is a qualification for applying for a patent, similar to the right of citizenship, or the declaration of intention to become a' citizen. Before a person, who has located a mining claim in accordance with law, would be entitled to a patent from the United States, he must make an application therefor under oath, and file therewith in the proper office of the land register, a plat and field notes of the claim, made by or under the direction of the United States surveyor general. He shall post a copy of such plat together with a notice of such application in a conspicuous place on the claim, and shall file an affidavit of two persons that such notice has been duly posted. Then the register of the land office shall publish the fact for at least sixty days, that such application has been made. Then the applicant shall file with the register a certificate of the United States Surveyor General that five hundred dollars worth of labor has been expended, or improvements of that value put upon the claim by him or his grantors. Then there must be an affidavit that the plat or notices have been posted up on the claim during the sixty days of the publication of the notice. Then if no adverse claim is made to the ground, the applicant is entitled to a patent [323] thereto upon paymeñt of five dollars per acre therefor. IT. S. Rev. Sts., § 2325.
It may be that where the title has passed out of the United States, a person might not be required to do all of these things, but certainly he ought to do every one of them that could' and which would be of any avail. He ought to have a survey made of the same under the direction of the United States surveyor general for Montana.
It is true the cross-complaint shows that there was a survey made of the property by a deputy United States mineral surveyor, but it does not show that the survey was made under the direction of the United States surveyor general. There was no certificate procured from the United States surveyor general of Montana, showing that defendants had performed five hundred dollars worth of labor upon said claim.
There was no tender to the plaintiffs or Agno, of five dollars per acre for this ground. And there is nothing to show that the defendants should be legally excused from doing these matters. In fact there is nothing in the cross-complaint which would tend to show that defendants were entitled to a patent to this ground save the mere location of the same. The cross-complaint does not show an equitable title for a patent in defendants. Do the defendants set up in the answer a legal title in themselves ? I suppose what the defendants would claim as allegations showing legal title in themselves, is the clause of the answer, numbered eleven, which commences thus: “Defendants further charge and allege that they were and are entitled to the exclusive possession and enjoyment of, etc.” The allegation that a party is entitled to the possession of real property is a legal conclusion and not the allegation of a fact. Payne and Dewey v. Treadwell, 16 Cal. 221.
There might be matter enough set up in the allegations intended for a defense of estoppel by judgment record to amount to a plea of a legal title in defendants. If there were no objection to considering this, still, under the demurrer in this case, should this be treated as new matter constituting a defense ?
Justice Rhodes in the case of Marshall v. Shafter, 32 Cal. [324]*324177, holds this language: “ It is proper at this point, however, to say that it is settled beyond all controversy in this State that the defendant may under the general denial give in evidence title in himself, and it follows that the allegation of such title in the answer does not constitute new matter, and therefore the allegations of title in the defendant do not present a new issue.” In this case the denials of the defendants in their answer put in issue, the allegations of title in the complaint. Under this issue the defendants could have proven any thing that would have shown that plaintiffs had no title or were not entitled to the possession of said property. For this purpose they could have shown title in themselves or the right to possession in themselves. I do not controvert the proposition that when a person possessing the proper qualifications as to citizenship, locates, according to law, a mine, he receives by operation of law a grant to a mining easement to the same, and this grant gives him the exclusive right to the possession and enjoyment of such property for mining purposes. And I am of the opinion that this grant is what may be termed a legal right, and can be introduced in evidence in an action to try the right to the possession of a mining claim, although it is opposed by a patent from the general government. A patent is nothing more than a public grant evidenced by a deed. The title to this mining easement rests upon a grant, as I have said, and is evidenced by the facts of location and the law of congress. Whoever is prior in time where there are two grants, is prior in right. If the defendants, then, located the claim in dispute, according to law, before the grantor of plaintiffs located the same, they could have introduced the title thus acquired, in evidence in this case, under their general denial, and it would have prevailed, in determining the right to the possession against the patent of the plaintiffs. There is nothing to show, however, in the record that they ever offered in evidence any such title on the trial. The fact that defendants made allegations in their answer showing title in themselves according to the foregoing opinion in the case of Marshall v. Shafter will avail them nothing.- According to that such allegations for the purpose of showing a legal title in them[325] selves were not new matter constituting a defense. It was only surplusage or irrelevant matter when viewed in that light. The demurrer admits only so much of the new matter as goes to make a proper defense. A demurrer does not admit surplusage or immaterial matter. Moak’s Van Santv. PL 783. If the answer then could be considered as setting up a legal title as new matter in defense, so far it must be regarded as immaterial and sur-plusage.
I now come to the question as to whether or not the plaintiffs were possessed of a legal title or only an equitable one at the time of the commencement of this action. There is no motion for „a new trial; no record of the evidence introduced on the trial in this case. Hence according to the well-established rules in judicial proceedings, we cannot determine whether the findings of the court below were correct or not.
The cause was tried before the court without a jury, and the court finds that the plaintiffs were the owners of the premises in dispute in fee simple. "We cannot go behind this "finding.
On the trial it appears that there were exceptions taken to the introduction in evidence of a patent to Agno, from the United States of the ground in dispute, dated March 3, A. D. 1876, and a deed from Agno, to these plaintiffs, conveying the same, dated November 23, A. D. 1875. When this patent was delivered to Aguo does not appear. There is no evidence in the record upon this point. This court cannot then presume that it was not delivered to Agno before the commencement of this suit. If these deeds do not have a tendency to show a legal title in the plaintiffs, then they were improperly admitted in evidence. If they had that tendency, then they were properly received. The granting part of the deed from Agno to the plaintiffs is as follows : “ The said party of the first part for and in consideration of the sum of ten thousand dollars lawful money of the United States of America, to him in hand paid by the parties of the second part, the receipt whereof is hereby acknowledged, has granted, bargained, sold, remised, released and conveyed, and by these presents does grant, bargain, sell, remise, release and convey unto the said parties of the second part and unto [326] tbeir heirs and assigns forever, the following described tract or parcel of mining ground.”
Tbe covenants of warranty are as follows: “ And the said party of the first part, and his heirs and assigns, hereby promise and covenant the title, and peace and possession of said property to warrant and defend against the lawful claims of all persons whomsoever.’’ Taking these portipns of that deed, and there is no doubt but that it purports to .convey to the plaintiffs a fee simple absolute title to the mining ground in dispute. There could be no doubt that this is the scope of that deed were it not for another recital in the deed, namely: “ This conveyance is intended and does convey all the title, the party of the first part now has, as well as all title he may hereafter acquire by a patent from the "United States, application having been made therefor.” This recital, however, does not change the character of this conveyance. It does not place any limitation upon the title it conveys. In fact it only declares what in law would be the effect of such a deed under our statute. I do not deny that as far as the title the said Agno had to a patent from the "United States, he could have had only an equitable title to the same, and so far as that patent title was concerned the deed only conveyed his equitable title to that patent title. But that is not the question here presented, namely :• "What title this deed in fact did convey, but what did it purport to convey ? I answer that this deed must be classed as one that purports to convey the fee simple absolute title to this, mining ground, for it purports to convey a title without any restrictions or conditions. It purports to convey such an estate as would pass to one’s heirs at common law, and not to his administrator.
“ A fee simple title is one that excludes all qualification or restriction as to the persons who may inherit it as heirs.” 1 Wash. on Beal Prop., 65-66. There is no qualification or restriction as to heirs in this deed. Purporting then to convey a fee-simple absolute title to this ground in dispute, what was its effect upon the patent title that Agno subsequently acquired ?
Our own statute (see Cod. Sts. 401, § 32) upon conveyance of realty is as follows : “If any person convey any real estate by [327] con veyance purporting to convey the same in fee simple absolute, and shall not at the time of such conveyance have the legal estate in such real estate, but shall afterward acquire the same, the legal estate subsequently acquired shall immediately pass to the grantee, and such conveyance shall be valid as if such legal estate had been in the grantor at the time of the conveyance.”
The recital in the deed of Agno only declared what was the effect of the deed under this statute, as soon as Agno received the patent from the general government. As soon as Agno received the patent to this ground from the United States the legal title he so acquired, by virtue of his deed to them, inured to plaintiffs’ benefit. I am not obliged, however, to rest my conclusion that the patent title of Agno, acquired by his patent, inured to the benefit of the plaintiffs, upon the section of our statute above quoted. In the case of “ The Lessees of Harmer's Heirs v. George Morris and David Gwynne, 1 McLean’s C. C. R. 44, one Symmes executed a deed to Harmer to certain lots in what is now the city of Cincinnati, in the year 1791. In the year 1794 Symmes received a patent from the United States to these lots with other ground. McLeaN, J., says as to the effect of this subsequent title acquired by Symmes : <e A deed having been given by Symmes to Harmer for these lots in 1791, when the patent was issued to Sym-mes for the same land in 1794, the deed of 1791 took immediate effect, and vested Harmer with the legal title.” This case was affirmed in 7 Pet. 554; 10 Curtis’ U. S. Sup. Ct. E. 558. Stoey, J., upon this point, used this language in delivering the opinion of the court: “ That the deed of Symmes to Harmer in 1791 passed a legal title to Harmer which became consummated in the latter when Symmes obtained his patent from the United States in 1794 is not controverted.” Under many decisions according to the doctrine in estoppel, the patent title of Agno would inure to the benefit of the plaintiffs. Agno’s deed to them being a war-rantee deed, it follows from this .view that the introduction of these deeds not only had a tendency to establish a legal title in the plaintiffs, but that they did establish such title, there being nothing to show that Agno did not receive this patent before the commencement of this action. It was signed before that, and may have been and probably was delivered before that.
[328] Whatever may be my views as to the abstract question of right in this case, and however much my disposition might impel me to do otherwise, I am satisfied that well-established principles of law force me to the conclusion that the judgment in this case must be affirmed.
It is ordered that the judgment of the court below be affirmed with costs.
Judgment affirmed.