efforts were made for a discovery of the alleged facts upon which this action rests, until ten years after the date of the contract, and until after the death of said William Sharon. And it is averred that then 'the means by which they obtained any information was by inquiring among their friends and acquaintances whether they, said persons, had any information relating to the dealings of said Sharon with said trust estate, and whether they had any information regarding the property which was conveyed by said Ralston to said Sharon in trust, as aforesaid.' But such means were always within the power of appellants and the Burlings; and there are no sufficient facts alleged to show that the delay is 'consistent with the required diligence.' (See Angell on Limitations, secs. 187, 190; Hecht v. Slaney, 72 Cal. 363; Moore v. Boyd, 74 Cal. 167.) "Moreover, apart from the question of strict statutory limitation, the claim of appellants is too stale to be enforced in a court of equity. 'No rule of law is better settled than that a court of equity will not aid a party whose application is destitute of conscience, good faith, and reasonable diligence, but will discourage stale demands, for the peace of society, by refusing to interfere when there has been gross laches in prosecuting rights, or where long acquiescence in the assertion of adverse rights has accrued. The rule is peculiarly applicable where the difficulty of doing entire justice arises through the death of the principal participants in the transactions complained of, or of the witness or witnesses, or by reason of the original transaction having become so obscured by time as to render the ascertainment of the exact facts impossible.' (Hammond v. Hopkins, 143 U. S. 250.) In speaking of this rule, this court, in Bell v. Hudson, 73 Cal. 288, 2 Am. St. Rep. 791, said: 'It is a material circumstance that the claim was not made until after the death of those who could have explained the transaction.' In the case at bar William Burling and William Sharon, 'the principal participants in the transactions complained of,' were both dead before the commencement 4 of the action. It is quite apparent that no court could do 'entire justice' in the premises without the testimony of William Sharon. Of course, if the suit had been commenced within a reasonable time, and William Sharon had died before his testimony could have been. taken, the want of his testimony would simply have been one of those natural misfortunes which sometimes come to litigants. But William Sharon lived for ten years after the transaction complained of. William Burling died two years after the transaction, fully satisfied-as is averred-that it was a fair one. James W. Burling did business for several years afterward, and, until he became an insolvent, was also satisfied with the fairness of the transaction. There was perfect acquiescence by all parties for ten years, and while Sharon lived. It was not until he died, and his testimony was forever beyond human reach, that the claim of appellants grew up and took the form of a suit against his successors. It is a claim which equity should not now entertain." Rehearing denied. [No. 19420. In Bank.-April 11, 1896.] COUNTY OF SAN BERNARDINO, APPELLANT, v ALONZO S. DAVIDSON ET AL., RESPONDENTS. PUBLIC OFFICERS-COUNTY RECORDER-LOCATION OF MINING CLAIMS-FEES.-It is no part of the official duties of a county recorder, as such, to record notices of locations of mining claims, and any moneys which he may receive for so doing are not fees for which he or his bondsmen are accountable to the county. APPEAL from a judgment of the Superior Court of San Bernardino County. GEORGE E. OTIS, Judge. The facts are stated in the opinion of the court. MCFARLAND, J.-This is an action on the official bond of defendant Davidson as county recorder of the county. of San Bernardino. A general demurrer to the complaint was sustained by the court below, and, plaintiff declining to amend, judgment was rendered for defendants. Plaintiff appeals from the judgment. The demurrer was properly sustained, and the judg ment is right. By this action it is sought to hold Davidson and his bondsmen liable to the county for certain money paid to him during his term of office by miners. for recording certain notices of locations of mining claims. But the statute concerning county recorders makes no provision for the recording of notices of loca tions of mining claims, and such recording is not within the purview of his official duties as county recorder. In certain mining districts there is a custom which requires a notice of location to be recorded, with some one selected as a mining recorder; and, in some of these districts, the county recorder is so selected. The purpose of the recording is to show a compliance with the mining customs; but this purpose, and the whole scheme, is entirely distinct from the statutory system of recordation by which parties are permitted to have transfers of property and certain other written instruments recorded in the county recorder's office, so as to give constructive notice thereof, and the county recorder is required to record the same when presented properly acknowledged or authenticated, as provided by statute -each kind of instrument to be recorded in a book to be kept for that purpose. A notice of a mining location in a recorder's book is "the original notice, not a record or copy of an independent original." (Pralus v. Pacific elc. Co., 35 Cal. 36.) A statutory county recorder could no more be required to record a miner's notice of location than he could be required to furnish a miner with a pick or shovel. If he chooses to do so, he may transcribe such notice of location in a book, or collection of sheets of paper, which he has procured for that purpose; but if he do so he does it not as a county recorder elected by the people, but as a person selected by the miners to do an act not provided for by the recordation. laws of the state; and any moneys which they may pay him for such services are not fees for which he and his bondsmen are accountable to the county. The cases of Placer County v. Austin, 8 Cal. 304, McKee v. Monterey County, 51 Cal. 275, and People v. Bunker, 70 Cal. 215, are not in point. In the first of those cases a tax-collector undertook to retain money, which he had received as such tax-collector, upon the ground that the taxes had been illegally levied; in the second case the defendant, as treasurer of Monterey County, had received certain moneys by the allowance of the controller, and sought to retain them upon the ground that the controller had exceeded his authority in making the allowance; and, in the third case, it was held that a commissioner of irrigation "having assumed to act under a statute of the state, and having collected moneys according to the letter of that statute, cannot be heard to say that the statute was in conflict with the constitution of the United States," and that therefore he was not bound to pay them over. In those cases the officers received the money as agents of the state or county upon the assumption that it was money belonging to the state or county; and they were decided upon the principle, that one to whom money has been paid by another for the use of a third person cannot, as against the third person, set up any illegality in the payment. But such was not the fact in the case at bar. The respondent did not receive the money upon the pretense that he was collecting it as the official agent of the county. He was not ex officio mining recorder, for there is no such officer created by the statute. And it is quite clear that the demurrer fully presents the question under review. The averment of the complaint is, that during Davidson's term of office "there existed a general custom and rule amongst the miners of said county to file for record, with the recorder of said county, notices of location of mining claims," and that he knew of such custom. This presents the whole question; and the averment that he received the fees "as such recorder" does not change either the fact or the law. The judgment is affirmed. GAROUTTE, J., VAN FLEET, J., HARRISON, J., HENSHAW, J., and TEMPLE, J., concurred. [S. F. No. 157. Department One.-May 1, 1896.] EBENEZER WORMOUTH, RESPONDENT, v. PETER GARDNER ET AL., APPELLANTS. TRUSTS-PATENT TO HOMESTEAD CLAIMANT-EQUITABLE RIGHTS OF PURCHASER OF MEXICAN GRANT-ACT TO QUIET LAND TITLES-EJECTMENT -SUPPLEMENTAL ANSWER AND CROSS-COMPLAINT DEMURRER.-In an action of ejectment, where the plaintiff's right of recovery was based upon a homestead entry and receiver's receipt, a supplemental answer and cross-complaint by the defendants, setting forth the issuance of a patent to the plaintiff pending the action, and seeking to enforce a trust therein as against the plaintiff, upon the alleged ground that the defendants are the successors in interest of a bona fide purchaser from a Mexican grantee, whose grant was subsequently rejected, and setting forth all the facts required for the protection of such purchaser under section 7 of the act of Congress of July 23, 1866, to quiet land titles, and alleging that, at the hearing before the land department, all of these facts were established by competent evidence, without conflict, and that the decision of the land department that the patent should issue to the plaintiff was based wholly upon an erroneous construction of the law that defendants were not entitled thereto, states a sufficient ground for the enforcement of a trust against the plaintiff, and a demurrer admitting the facts thus alleged is improperly sustained. ID. QUESTION OF FACT FOR LAND DEPARTMENT-GOOD FAITH OF PURCHASER-POSSESSION AND IMPROVEMENT-CONTESTED FACTS-CONCLU SION OF LAW AS TO UNDISPUTED FACTS.-Whether the predecessor of the defendant did, in fact, purchase the land for a valuable consideration in good faith, or whether he believed that the land purchased was included within the original limits of the Mexican grant, or whether after his purchase, he used and improved the land, and continued in the actual possession of the same, according to the lines of his purchase, are questions of fact for the land department to determine, and its decision upon those questions of fact, if contested, is conclusive upon the courts, though if it has made an erroneous conclusion of law upon undisputed facts, its action is open to review. ID. JURISDICTION OF LAND Department-DECISION AS TO PATENT, HOW FAR CONCLUSIVE-ERROR OF LAW-EQUITABLE RELIEF.-Upon the |