“ A trial to the court without a jury resulted in a judgment for the plaintiffs, which was affirmed by the supreme court of the territory (14 N. M. 352, —L.R.A. (N.S.) --, 93 Pac. 762) , and the case was then brought here. A statement of the facts, in the nature of a special verdict, and of the rulings and exceptions upon the rejection of certain evidence, was made and certified by the appellate court agreeably to the act of April 7, 1874 (18 Stat. at L. 27, chap. 80) , § 2. ”

“ At that time the defendants were openly claiming full title in themselves, notwithstanding the prior adjudication of the invalidity of the Bartolom e Baca grant, and notwithstanding there had been no conveyance by Otero or his heirs of the Galisteo grant, as contemplated by the agreement. ”

“ The evidence was rejected, and this, it is contended, was prejudicial error because, first, what was done tended to show that the plaintiffs treated the agreement of 1878 as executed rather than executory, and, second, even if the agreement was executory, the plaintiffs could not recover in the action without first surrendering to the defendants the advantages obtained through those claims. ”