
    RICHARD STEELE, Respondent, v. TOBIAS S. BOLEY, and another, Appellants.
    
    Statute op Limitations. — Public Lands. — Final Entry. — The statute of limitations begins to run against one who claims public lands as grantee of the United States in favor of one in possession, claiming to have acquired the title thus acquired by the patentee, from the date of the patentee’s certificate of final proof and payment.
    Appeal from a judgment upon demurrer to an answer in the district coart of the first district and from the order sustaining the demurrer. The opinion states the facts.
    
      Mr. Samuel It, Thurman and Mr. George Sutherland for the appellants.
    
      Mr. A. Saxey for the respondent.
    
      
       See Steele v. Boley, post, overruling this decision.
    
   HENDERSON, J.:

This is an action of ejectment, brought by Steele in the district court, for twenty acres of land. Tbe complaint is in tbe ordinary form in ejectment. To tbis complaint tbe defendants filed their answer, setting up a general denial, and pleading affirmatively: First, tbe statute of limitations, claiming adverse possession for seven years under a contract on tbe part of respondent to convey said land to defendants, of which they ask specific performance; second, that plaintiff is, in equity, estopped from claiming title to the land in controversy. To tbis answer plaintiff demurred, and as grounds of demurrer claimed: First, that tbe contract set forth in tbe answer was void, as contrary to tbe provisions of tbe land laws of tbe United States, and against théir policy, and that it appears from their answer that tbe statute of limitations bad not run; second, that tbe facts did not constitute an estoppel. Tbe district court sustained tbis demurrer, and final judgment was entered in favor of tbe plaintiff, and tbis appeal is from that judgment. Tbe allegations of tbe answer are substantially as follows: That in 1876 one Wilson located upon one hundred and sixty acres of public land, which includes tbe twenty acres in controversy, with tbe intention of filing upon it. Afterwards be released bis claim and possession to plaintiff, tbe plaintiff agreeing, in consideration of such release, to deed to Wilson, or bis successors in interest, tbe twenty acres in question, upon procuring a patent therefor, without expense or further charge to Wilson. The land was thereupon pre-empted by plaintiff, and immediately thereafter Wilson sold and conveyed to defendant tbe twenty acres in controversy, for $125, paid by defendants to Wilson therefor. That such purchase from, and payment to, Wilson was made in pursuance of an express agreement and understanding between the plaintiff and defendants that they might safely purchase such interest, and that plaintiff would convey said land to them upon procuring tbe patent pursuant to bis agreement with Wilson. That thereupon, and in pursuance of such purchase and agreement, tbe defendants entered into tbe possession of said land in controversy, and have ever since quietly, peaceably, and uninterruptedly enjoyed tbe same. That in 1880 tbe plaintiff made bis final proof at tbe United States land office, paid tbe entire purchase price therefor, and received bis final certificate of purchase, and thereby became entitled to a patent for tbe one hundred and sixty acres, and that pursuant to such proof, payment, and certificate of purchase, a patent was issued to plaintiff in 1886. That defendants were at all times competent pre-emptors under tbe law, and have never exercised their pre-emption privilege. That since plaintiff made bis final proof and payment, in 1880, tbe defendants, with tbe knowledge and acquiesence of plaintiff, continued to occupy said lands in controversy for farming purposes, claiming title thereto, and have from year to year improved the same, and laid out large sums of money in permanent improvements thereon.

This action was commenced June 20, 1880. Tbe plaintiff claims in support of bis demurrer that tbe contract set up by tbe answer is wholly illegal, and in violation of Bev. St. U. S., Sec. 2262, which provides that before an entry shall be allowed tbe claimant shall make oath that “he has not, directly or indirectly, made any agreement or contract, in any way or manner, with any person or persons whatsoever, by which the title which he might acquire from the government of the United States, should inure, in whole or in part, to the benefit of any person except himself.” That the plaintiff, in order to make his entry, and complete his purchase, would have to take an oath in violation of this section. That all the parties to the contract are chargeable with notice of that fact, and that they are therefore in pari delicto. That neither can have specific performance of the contract, and that it cannot be the foundation of an equitable estoppel, and the statute of limitations does not begin to run until the patent actually issues.

The defendants claim that the statute above referred to only relates to agreements by which one party is to enter land in trust for another, and has no reference to a personal contract by which a party agrees in the future to sell the lands to which he may acquire a title from the government; but that, if it does apply, it operates only upon the pre-emptor, and that as between the parties the purchaser may have specific performance, and that the plaintiff cannot set up or take advantage of his own fraud, and that the statute of limitations begins to run from the date of final proof and payment.

We deem it unnecessary to discuss all the questions raised by the parties relative to the construction of Sec. 2262 of the Revised Statutes, above referred to. It will be seen that, by the case stated in the answer, the defendants have been in possession of the lands in controversy for füll seven years and ever since the plaintiff made his final proof and payment, and received his final certificate from the Government. The statutory period of limitations under the laws of this Territory is seven years. Comp. Laws 1888, §§ 3129, 3131.

The plaintiff contends that, under the patent actually issued, the title to the land remained in the Government, and that the statute will not run against the Government, and consequently it will not run against the grantee of the Government until it has parted with the title by a patent regularly issued; and he relies mainly upon the case of Gibson v. Chouteau, 13 Wall, 92. That case did not arise under the pre-emption laws of the United States; but the patent was acquired under a special act of Congress providing for the relief of sufferers by the New Madrid earthquakes, occurring in 1812. Preliminary proceedings were taken in ,1818 to perfect a title under that act, but the final certificate showing that all its provisions were complied with was not issued until March, 1862, and a patent was issued thereon in June 1862. The Supreme Court of Missouri held that, when the patent issued, by relation it dated back to the time when the entry was first made, and that therefore, the statute of limitations would run during the pen-dency of the proceedings, and before the final certificate or patent was issued. On appeal to the Supreme Court of the United States, that court (supra) held that the statute did not begin to run until the patent issued. No distinction is made in that case between the issuing of the final certificate and tbe date of tbe patent, as .it was immaterial, tbe statutory period not having elapsed since either. It has been repeatedly held by tbe Supreme Court of tbe United States that when a pre-emptor of public lands has made bis final proof, and made full payment, and nothing remains' to be done but to issue tbe patent, tbe purchaser has such a title to tbe land that he can convey it, and that a subsequent sale and grant by tbe Government of tbe same lands to another would be absolutely void. Wirth v. Branson, 98 U. S. 118; Frisbie v. Whitney, 9 Wall. 187; Carroll v. Safford, 3 How. 441.

In tbe case of Stark v. Starrs, 6 Wall. 402, tbe Supreme Court of tbe United States used tbe following language: Where tbe right to a patent has once become vested in a purchaser of public lands, it is equivalent, so far as the Government is concerned, to a patent actually issued. Tbe execution and delivery of tbe patent after tbe right to it has become complete are tbe mere ministerial acts of tbe officers charged with that duty;” and this language has been repeated and approved by tbe Court in at least two cases since: Barney v. Dolph, 97 U. S. 652; Simmons v. Wagner, 101 U. S. 260. If, then, tbe purchaser of lands from tbe Government, when be has become fully entitled to a patent, and nothing remains but to deliver it to him, has such an estate in tbe lands that be may convey tbe same by deed, and in case of death it descends to bis representatives tbe same as other lands held in fee, and, “so far as tbe Government is concerned, it is equivalent to a patent actually issued,” it is difficult to see why tbe statute of limitations will not begin to run against him from tbe time bis right to tbe property is perfected in favor of one who has possession of tbe land, claiming tbe title which the purchaser has thus derived from the Government. In tbe case of Gibson v. Chouteau, supra, relied upon by plaintiff, tbe party there seeking to set up tbe statute of limitations did not in any way connect himself with the title or right of tbe party claiming under tbe patent. Tbe case shows that an attempt to do so was made and failed; and tbe case, therefore, was that a party was seeking to set up tbe statutory bar who bad nothing but a mere naked possession, and that during tbe time tbat tbe Government owned the land, and before tbe right to a patent accrued. In tbe case at bar tbe defendants entered and bave been in possession for over- seven years since the plaintiff acquired bis right to a patent, claiming tbat they were the owners of tbe title thus acquired by him. Manly v. Howlitt. 55 Cal. 95, cited by plaintiff, is a case where tbe Court held tbat tbe statute of limitations did not begin to run upon tbe issuance of tbe certificate purchased by tbe State, and before tbe patent issued, because there were still acts to be performed by tbe bolder of tbe certificate before be would be entitled to a patent under tbe laws of tbe State; tbat certain payments were yet to be made; and in King v. Thomas, 12 Pac. Rep. 865, which arose under the laws of tbe United States relative to patents of mining lands, it was held tbat tbe statutes did not apply, there being other conditions yet to be performed by tbe claimant under bis entry. In tbe State Courts it has been repeatedly held tbat, under tbe pre-emption laws of tbe United States when tbe pre-emptor has fulfilled all tbe conditions on bis part, and received a final certificate entitling him to a patent, tbe title is vested in tbe pre-emptor, Cavender v. Smith, [Iowa] 56 Amer. Dec. 541; Goodlet v. Smithson, [Ala.] 30 Amer. Dec. 561; Knight v. Leary, 11 N. W. Rep. 600; and tbat the statute of limitations begins to run from tbe date of such certificate, Cady v. Eighmy, [Iowa,] 7 N. W. Rep. 102; Udell v. Peak, 9 S. W. Rep. 786; Nicholas vs. Council [Ark.] 9 S. W. Rep. 305; Doe v. Hearick, 14 Ind. 242.

We are of tbe opinion tbat where a pre-emptor of public lands has made and submitted bis final proofs, made full payment, and received bis final certificate entitling him to a patent, and nothing remains to be done but for the officers charged with tbat duty to make and deliver him a patent therefor, and a patent has afterwards been issued upon such certificate, tbe statute limitations will run as against him in favor of one who is in possession, claiming to own tbe land, and to bave acquired tbe title thus acquired by tbe pre-emptor from tbe date of such certificate. Tbe judgment of tbe Court below sustaining the demurrer to the answer is reversed, with costs, and the cause remanded.

Zane, C. J., and Añdeeson, J., concurred.  