By the Court,
Whitman, J.:
To respondent’s complaint, in an action for the recovery of real property, appellant pleaded, or attempted to plead, an equitable defense and prayed equitable relief. The respondent relied upon two muniments of title for recovery. Eor a portion of the land, (what portion is not shown by the transcript,) he presented a patent from the United States; for the residue, a deed made by Judge S. H. Wright, acting as trustee under a statute of this State purporting to be passed in accordance with the c 1 act for the relief of citizens of towns upon lands of the United States, under certain circumstances, ” approved May 28, 1844.
With regard to the patent appellant pleaded thus: “Defendant' further answering avers that the balance of said tract of land was, at the time it was purchased and first occupied by the defendant, government land of the United States, and that on the —— day of-1866, said plaintiff wrongfully and unlawfully pre-empted the tract of land, [96]*96including the premises described in the complaint, and has wrongfully and unlawfully received a patent from the government of the United States for the same. That at the time said plaintiff made the application to pre-empt said tract of land, said defendant was residing upon and had the improvements upon and was cultivating the tract of land described in the complaint as aforesaid; and that the same was pre-empted against the right and interest of this defendant. Defendant avers that prior to and since the pre-emption of said- tract of land by plaintiff as aforesaid, said plaintiff, for and in consideration of the rights of the defendant in and to the same, promised and agreed, upon the obtaining of the patent from the government of the United States, to deed to the said defendant that portion of said land described in the complaint, upon the payment by the defendant what the same cost, to wi’t: one dollar and twenty-five cents per acre; and for the further consideration for the deed from plaintiff to the defendant, that the defendant would not contest with the plaintiff the right to pre-empt said tract of land — the defendant, under the law of the United States, having the legal right to pre-empt the same. And for the agreement and promises as aforesaid, the defendant did not contest with said plaintiff for the pre-emption right to the same, but allowed the plaintiff to pre-empt the same. Defendant further avers that on or about the 28th day of March, A.D. 1870, he tendered to the said plaintiff twenty dollars in gold coin of the United States, and demanded of the plaintiff a deed for the tract of land as described in the complaint, and that said plaintiff did then and has ever since and does now neglect and refuse to deed to the defendant said tract of land; said sum of twenty dollars being more than sufficient to pay for said land and all expense of making deed to the same; that said money tendered as aforesaid has always been ready for said plaintiff and is brought into court to be paid to the said plaintiff upon the making of the deed as aforesaid. ”
Evidence was offered in support of this plea, which upon objection of respondent was excluded. The plea is alleged [97]*97to be insufficient, because it does not state tbe facts wbicb it would be necessary to prove to constitute one a pre-emptioner.
It has been beld in California tbat one who-relies upon a pre-emption must plead tbe facts giving tbe right. People v. Jaclcson et al., 24 Cal. 630; but tbis was after demurrer and refusal to amend. Tbis court bas reproved tbe practice of making up issues as if of fact, and tb'en attempting to take tbe advantage of tbe unwary pleader by motion or objection on trial. Cal. State Tel. Co. v. Patterson, 1 Nev. 151.
Tbis case comes fairly witbin tbe reason of tbat last cited, admitting tbe pleading to be radically defective; but it will be seen upon comparison to differ from tbe California case in tbis, tbat here some of tbe constituent facts underlying tbe right to pre-empt are stated; i. e., residence and improvement; so it falls witbin tbe rule governing what is called a defective statement of a cause of action, as distinguished from a statement of a defective cause of action» There is in tbe portion of tbe pleading before quoted, an attempt to set up a cause of action, wbicb if properly pleaded and proven might have entitled tbe appellant to tbe relief claimed. Upon demurrer tbe pleading would have been beld bad, but tbe defect pointed out could have been remedied .by amendment. No such opportunity was given, and a technical judgment may have cut off a substantial right; such is not tbe spirit of tbe code, nor, when properly interpreted, its practice. Masten et al. v. Marlow et al., 65 N. C. 696; White v. Spencer, 14 N. Y. 247; Brown v. Richardson, 20 N. Y. 472; Oliver v. Depew, 14 Iowa, 490.
Tbe evidence offered should have been received unless objectionable otherwise; and tbis brings up tbe second objection thereto, tbat it tended to sustain a contract within tbe statute of frauds and opposed to federal legislation. As to tbe latter proposition, tbe contrary bas been beld in tbis State and may properly be considered to have become a rule of property, of wbicb it should be said stet. Rose v. Treadway, 4 Nev. 455. Upon either point or both, tbe weight of authority is against respondent. Hidden v. Jordan, [98]*9821 Cal. 92; McCoy v. Hughes, 1 Iowa, (Greene) 371; Brooks v. Ellis, 3 Iowa, (Greene) 258; Snow v. Flannery, 10 Iowa, 318; Fischer v. Morlick, 13 Wis. 321; Stephenson v. Smith, 7 Mo. 619; Groves's Heirs v. Fulsome et al., 16 Mo. 549.
With reference to the error assigned, or rather attempted to be assigned, to the action of the court upon the other branch of respondent’s title, nothing authoritative can be 'decided, because the record does not properly present the question; but as the case will probaby be retried, it may not be amiss to say that it would seem that the deed of the trustee is not conclusive. If not given to an occupant or one having the right of occupancy, that fact maybe shown; and then the deed falls, as absolutely “void and of no effect.” The federal statute of 1844, under which the trustee purports to have acted in this instance, provides for the disposition of town-sites to “occupants” by a trustee or trustees acting under rules to be established by the proper legislature; also, “that any act of said trustees not made in conformity to the rules and regulations herein alluded to shall be void and of none effect.”
The statute containing the rules and regulations applicable here says that the property shall be deeded by lot, block, share, or parcel “tothe person or persons who shall have, possess, or be entitled to the possession or occupancy thereof, according to his, her, or their several and respective right or interest in the same, as they existed in law or equity at the time of such entry of such lands, or to his, her, or their heirs or assigns.” Stats. 1866, p. 54, Sec. 2. It is further' ordered that lands not so deeded shall be sold at public auction, and the proceeds devoted to certain purposes. If, then, respondent was neither an occupant, nor had the right of occupancy, he was not entitled to receive a deed from-the trustee, and the same was “void and of none effect, ” as having been made contrary to the rules and regulations by the legislature established.
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By the Court,
Whitman, J.:
To respondent’s complaint, in an action for the recovery of real property, appellant pleaded, or attempted to plead, an equitable defense and prayed equitable relief. The respondent relied upon two muniments of title for recovery. Eor a portion of the land, (what portion is not shown by the transcript,) he presented a patent from the United States; for the residue, a deed made by Judge S. H. Wright, acting as trustee under a statute of this State purporting to be passed in accordance with the c 1 act for the relief of citizens of towns upon lands of the United States, under certain circumstances, ” approved May 28, 1844.
With regard to the patent appellant pleaded thus: “Defendant' further answering avers that the balance of said tract of land was, at the time it was purchased and first occupied by the defendant, government land of the United States, and that on the —— day of-1866, said plaintiff wrongfully and unlawfully pre-empted the tract of land, [96]*96including the premises described in the complaint, and has wrongfully and unlawfully received a patent from the government of the United States for the same. That at the time said plaintiff made the application to pre-empt said tract of land, said defendant was residing upon and had the improvements upon and was cultivating the tract of land described in the complaint as aforesaid; and that the same was pre-empted against the right and interest of this defendant. Defendant avers that prior to and since the pre-emption of said- tract of land by plaintiff as aforesaid, said plaintiff, for and in consideration of the rights of the defendant in and to the same, promised and agreed, upon the obtaining of the patent from the government of the United States, to deed to the said defendant that portion of said land described in the complaint, upon the payment by the defendant what the same cost, to wi’t: one dollar and twenty-five cents per acre; and for the further consideration for the deed from plaintiff to the defendant, that the defendant would not contest with the plaintiff the right to pre-empt said tract of land — the defendant, under the law of the United States, having the legal right to pre-empt the same. And for the agreement and promises as aforesaid, the defendant did not contest with said plaintiff for the pre-emption right to the same, but allowed the plaintiff to pre-empt the same. Defendant further avers that on or about the 28th day of March, A.D. 1870, he tendered to the said plaintiff twenty dollars in gold coin of the United States, and demanded of the plaintiff a deed for the tract of land as described in the complaint, and that said plaintiff did then and has ever since and does now neglect and refuse to deed to the defendant said tract of land; said sum of twenty dollars being more than sufficient to pay for said land and all expense of making deed to the same; that said money tendered as aforesaid has always been ready for said plaintiff and is brought into court to be paid to the said plaintiff upon the making of the deed as aforesaid. ”
Evidence was offered in support of this plea, which upon objection of respondent was excluded. The plea is alleged [97]*97to be insufficient, because it does not state tbe facts wbicb it would be necessary to prove to constitute one a pre-emptioner.
It has been beld in California tbat one who-relies upon a pre-emption must plead tbe facts giving tbe right. People v. Jaclcson et al., 24 Cal. 630; but tbis was after demurrer and refusal to amend. Tbis court bas reproved tbe practice of making up issues as if of fact, and tb'en attempting to take tbe advantage of tbe unwary pleader by motion or objection on trial. Cal. State Tel. Co. v. Patterson, 1 Nev. 151.
Tbis case comes fairly witbin tbe reason of tbat last cited, admitting tbe pleading to be radically defective; but it will be seen upon comparison to differ from tbe California case in tbis, tbat here some of tbe constituent facts underlying tbe right to pre-empt are stated; i. e., residence and improvement; so it falls witbin tbe rule governing what is called a defective statement of a cause of action, as distinguished from a statement of a defective cause of action» There is in tbe portion of tbe pleading before quoted, an attempt to set up a cause of action, wbicb if properly pleaded and proven might have entitled tbe appellant to tbe relief claimed. Upon demurrer tbe pleading would have been beld bad, but tbe defect pointed out could have been remedied .by amendment. No such opportunity was given, and a technical judgment may have cut off a substantial right; such is not tbe spirit of tbe code, nor, when properly interpreted, its practice. Masten et al. v. Marlow et al., 65 N. C. 696; White v. Spencer, 14 N. Y. 247; Brown v. Richardson, 20 N. Y. 472; Oliver v. Depew, 14 Iowa, 490.
Tbe evidence offered should have been received unless objectionable otherwise; and tbis brings up tbe second objection thereto, tbat it tended to sustain a contract within tbe statute of frauds and opposed to federal legislation. As to tbe latter proposition, tbe contrary bas been beld in tbis State and may properly be considered to have become a rule of property, of wbicb it should be said stet. Rose v. Treadway, 4 Nev. 455. Upon either point or both, tbe weight of authority is against respondent. Hidden v. Jordan, [98]*9821 Cal. 92; McCoy v. Hughes, 1 Iowa, (Greene) 371; Brooks v. Ellis, 3 Iowa, (Greene) 258; Snow v. Flannery, 10 Iowa, 318; Fischer v. Morlick, 13 Wis. 321; Stephenson v. Smith, 7 Mo. 619; Groves's Heirs v. Fulsome et al., 16 Mo. 549.
With reference to the error assigned, or rather attempted to be assigned, to the action of the court upon the other branch of respondent’s title, nothing authoritative can be 'decided, because the record does not properly present the question; but as the case will probaby be retried, it may not be amiss to say that it would seem that the deed of the trustee is not conclusive. If not given to an occupant or one having the right of occupancy, that fact maybe shown; and then the deed falls, as absolutely “void and of no effect.” The federal statute of 1844, under which the trustee purports to have acted in this instance, provides for the disposition of town-sites to “occupants” by a trustee or trustees acting under rules to be established by the proper legislature; also, “that any act of said trustees not made in conformity to the rules and regulations herein alluded to shall be void and of none effect.”
The statute containing the rules and regulations applicable here says that the property shall be deeded by lot, block, share, or parcel “tothe person or persons who shall have, possess, or be entitled to the possession or occupancy thereof, according to his, her, or their several and respective right or interest in the same, as they existed in law or equity at the time of such entry of such lands, or to his, her, or their heirs or assigns.” Stats. 1866, p. 54, Sec. 2. It is further' ordered that lands not so deeded shall be sold at public auction, and the proceeds devoted to certain purposes. If, then, respondent was neither an occupant, nor had the right of occupancy, he was not entitled to receive a deed from-the trustee, and the same was “void and of none effect, ” as having been made contrary to the rules and regulations by the legislature established. This the appellant would have the right to prove; though not to put title in himself as the real occupant entitled to the deed of the trustee, for he is barred of all right by section fourth of [99]*99the act, lie having presented no statement of claim within the specified time; the act, as to such neglect, reading, “and all persons failing to sign and deliver such statement within the time specified in this section shall he forever barred the right of claiming or recovering such lands, or any interest or estate therein, or in any part, parcel, or share thereof, in any court of law or equity.”
But although so barred, the proof would be competent to show that respondent has no title, in which case he must fail of recovery for the land described in the trustee’s deed, as that must be had not upon the weakness of appellant’s but upon the strength of his own title. He relies in this case upon strict title. If in any manner it can be shown that such has no existence, that fact inures to the protection of appellant in peaceable possession, though it may not show any affirmative right .or title in him.
The judgment is reversed and the cause remanded for a new trial.