Page:Federal Reporter, 1st Series, Volume 9.djvu/747

 732 FEDERAL REPORTER. �under the title confirmed;" he does not claim any interest under the Mexican grant, confirmed and patented, or that the patent was issued to the wrong party; he claims that the grant, though valid, and con- firmed to the rightful party, was improperly located. He does not, therefore, bring himself within the classes of trusts protected in Es- trada v. Murphy, 19 Cal. 272, and Wilson v. Castro, 31 Cal. 420, or in any other case cited. �But complainant has no standing to impeach the transaction on another ground. He has no apparent title from the United States. His right, whatever it may be, is, at best, only inchoate. It is a mere privilege; a first right to purchase, or pre-emption right under the acts of congress, of which he may avail himself or not as he chooses if he should sueceed in vacating the patent. He is not bound to pur- chase of the government, and may abandon his claim at any moment. Neither he nor his grantor has ever tendered the purchase money to the United States or to defendant, or applicd for a patent, and it so appoars in the bill, and non constat that he ever will do either. He is in no better position as regards title, in his relation to the govern- ment, than the parties in Hutton v. Frisbie, 37 Cal. 481, and Frisbie V. Whitney, 9 Wall. 187. Complainant as yet has no privity with the government in the lands in dispute, and no ground for equitable re- lief on that score. Dell v, Meador, 16 Cal. 295. The United States, if anybody, is the party injured; and the right to vacate the patent for fraud, if any such right exista, is in the United States, and the United States should file the bill to vacate the patent. Moore v. Rabbins, 9o U. S. 533. Justice oan only be done, if at all, upon a bill filed by the United States — the party to the transaction, and the party injured. It is not eiaimed that the grant confirmed and pat- ented is not valid and properly confirmed; but it is said it is improp- erly located. The patentee, then, is entitled to 11 leagues of land Bomewhere. Even upon a bill filed by the government, if the loca- tion should be vacated on the ground of frauds practiced by the offi- cers in Ipcating it, with or without the knowledge of the patentee, it is at least doubtful if it could be relocated in the proper place. The ordinary courts have no jurisdiction in the location of grants except in the mode prescribed by the special act of congress on the sub- ject. But suppose the complainant should sueceed in charging the defendant as a trustee, on account of fraudulent acts occurring before he had any interest in the matter, and obtain a decree for conveyance of the whole or a part of the land, there could be no relocation on ��� �