MONTGOMERY v. UNITED STATES. 5
and that said receiver gave the petitioner "a certificate or receipt " for
said money, as "being in full" for said land.
That the defendant keeps and retains said money; and its servants,
whose duty it is to execute and deliver to the petitioner a patent for said
land, although often requested, refuse so to do, and deny the right of
the petitioner to have the same, or to any interest therein.
The prayer of the petition is that the court will decree that the defend-
ant issue to the petitioner a patent for said land.
Due service was made of the petition, as provided in section 6 of the
act of 1887, and the district attorney appears for the defendant, and de-
murs to the petition. , ‘
The causes of demurrer are the same as those that were argued and de-
termined in Jones v. U. S.,35 Fed. Rep. 561, decided in this court on
July 16, 1888, in which it was held that an applicant for land under the
timber act of 1878, " becomes the purchaser thereof when he makes the
prescribed proof to the satisfaction of the register, and pays the pre-
scribed price therefor ;" and f‘when the certificate of purchase is issued ·
to the applicant the land described therein becomes his property;-the
bare legal title is all that remains in the vendor in trust for the vendee;
and if it was the case of a private person, a court of equity would com>
pel him to perform his part of the contract by executing and delivering
to the vendee the proper conveyance thereof ;" and that "the claim"
against the United States for a patent arising on this contract of sale with
the petitioner is in its nature "enforceable by a suit in equity in this
court for a specific performance of the same; and thisbrings the peti—
tioner within the act of 1887, which gives her the right to sue the United
States on any claim arising on contract, by a suit in equity,_as ‘if the
United States were suable,’——which must mean, as if the United States
were a private person;" and, also, (1) that the land in question isiwith-
out the territorial jurisdiction of the court; and (2) that this sale under .
the act of 1878 is not binding on the government until it is ratified or
confirmed by the commissioner of the general land—oHice. _ _ _ ._ _, A
As to the second point, it is sutiicient to say that the statute provides
that on payment of the purchase money " the applicant may be permitted ‘
to enter the same. * * * and on the transmission to the general
’land—otHce of the papers and the testimony in the case a patent shall is-
sue thereon." _ (
It may be admitted that, notwithstanding the peremptory language
of the statute, "the papers and testimony in the case " must show a prima
facie compliance with the law before the purchaser is entitled to the pat-
ent. And if there was any fraud in the proceeding before the local land-
ofiice, sufficient to vitiate the purchase, and overcome the prima facie case,
the government can set it up as a defense to the suit for specidc perform-
ance, where the rights of the parties may be examined and passed on
judicially, as they ought to be.
As to the Hrst point, the objection is founded on a misconception of
the nature of the suit. This is not a local action to recover the posses-,
sion of the land, but a transitory one to enforce the specific performance