Page:North Dakota Reports (vol. 1).pdf/441

 and premises aforesaid, has good right to sell and convey the same, in manner and form aforesaid;” that under such deed plaintiff at once entered into possession of said property, and has never been in any manner interfered with or disturbed in such possession, and no paramount or hostile title to said premises has ever been asserted against plaintiff's title or possession. On these facts a judgment was rendered against defendant, and in favor of plaintiff, for the consideration money, with interest from the date of ‘conveyance, with costs and disbursements. From this judgment defendant appeals to this court.

We first inquire whether these facts show a breach of the covenant of seisin. There is no allegation or intimation in the complaint that any irregularity or informality in any way exists in the location of the scrip, and it is expressly found that the land was subject to entry with such scrip. In speaking of the condition of the title to lands that have been properly entered, but to which no patent has been issued by the general government, the-supreme court of: the United States, in Carroll v. Safford, 3 How. 441, uses this language: “It is said that the fee is not in the purchaser, but in the United States, until the patent shall be issued. This is so technically at law, but not in equity. The land in the hand of the purchaser is realty, and descends to his heirs, and does not go to his executors or administrators. In every legal and equitable aspect, it is considered as belonging to the realty. Now, lands which have been sold by the United States can in no sense be called the property of the United States. They are no more the property of the United States than lands patented. So far as the rights of the purchaser are concerned, they are protected under the patent certificate as fully asunder the patent. Suppose the officersof the United States had sold a tract of land, received the purchase money, and issued the patent certificate, could it be contended that they could sell it again, and convey a good title? They could no more do this than they could sell land a second time which had been previously patented. When sold, the government, until the patent shall issue, holds the mere naked legal title of the land in trust for the purchaser, and any second purchaser would take the land charged with the trust.” This rule has been repeatedly affirmed,