FANNY B. DEWHURST ET AL., APPELLANTS,

v.

WILLIAM WRIGHT, APPELLEE

Raney, C. J. :

'The purchase of land, represented by the bill, was made under the second section of the act of Congress, •approved June 15th, 1880, entitled : An act relating to the public lands of the United States. This section provides : That persons who have heretofore under 'any of the homestead laws entered lands properly subject to such entry, or persons to whom the right of those having so entered for homesteads may have been attempted to be transferred by bona fide instrument in writing, may entitle themselves to said lands by ;paying the government price therefor, and in no case' less than one dollar and twenty-five cents per acre, and the amount heretofore paid the government upon said lands shall be taken as a part of said price : Provided, that this shall in no wise interfere with the rights or ««claims of others who may have subsequently entered such lands under the homestead laws. Page 558 of Vol. 1, Supplement to Revised Statutes of the United States.

The real purpose of the bill is to have Wright declared a trustee of the title of the land, in favor of Mrs. Dewhurst, and to require him to convey the same to her by proper deed.

Dean had, prior to the approval of the above act of Congress, made an entry of the land, and had received his first certificate, but not a patent. Subsequent to the act proceedings were instituted to cancel the entry for fraudulent proof as to residence on the land. He was clearly within the provisions of the above act of Congress, but the bill informs us not only that he was indifferent to purchasing under its provisions, and could not provide the money to do so, but that he in fact declined to purchase, though urged to do so by Dewhurst, and that Dewhurst with his own money purchased the title of the United States and took the title in the name of Dean. The bill is not framed upon the theory that Dewhurst advanced the money for Dean or made the purchase for him, nor that at the time he paid the money he was acting for Dean in any representative capacity, nor under any agreement between him and Dean by which Dean would become the trustee of the title under an express trust in Dewhurst’s favor. The theory of the bill, on the contrary, is that Dewhurst purchased the land for himself, and paid for ifc with his own money, as purchaser, and took the title in Dean’s name, and that thereupon a trust resulted in his favor, and that by virtue of the conveyances from Dean to him, and from Dewhurst to Bradley, and from Bradley to Mrs. Dewhurst, the last named party has become invested with the right to have a trust declared against Wright, to whom .Dean had conveyed before conveying to Dewhurst, and to a conveyance from Wright.

Assuming that Dewhurst could have purchased lawfully the land for himself, and did so with his own money, and took the title in the name of Dean, the result would have been that upon such purchase being made, Dean would liave held the land in trust for Dewhurst, or Dewhurst’s grantees, such trust being what is known as a resulting trust; Perry on Trusts, sec. 133, and note 4; but the title so vested in Dean in trust would not have enured to the benefit of Wright under his prior warranty deed from Dean, nor have passed to Wright from Dean. Where one without title has conveyed land in his own right with covenants warranting the title, and afterwards the title comes to him in the capacity of a trustee for a different person, such newly acquired title does not enure to the former grantee of the covenantor. The estoppel arises only where-the covenantor takes the new title in the same right in which he had previously conveyed it. 3 Washburn on. Real Property, m. p. 475, sec. 37; Burchard vs. Hubbard, 11 Ohio, 316 ; Kelley vs. Jenness, 50 Me., 445 ; Jackson vs. Mills, 13 Johns., 463 ; Sinclair vs. Jackson, 8 Cowen, 543, 587; Jackson vs. Hoffman, 9 Cowen, 271 ; Marsh vs. Rice, 1 N. H., 167 ; Remlit vs. Otis, 2 N. H., 167. We are satisfied that no benefit would have enured to Wright from the patent to Dean if the effect of such patent had been to vest the title as between Dean and Dewhurst, or Dean and Dewhurst’s grantee, in Dean, in trust for Dewhurst or such grantee, and that it would not, either of itself, nor through the aid of the former deed from Dean to Wright have constituted Wright a trustee for Dewhurst, or for Dewhurst’s grantee. It -was Dean, not Wright, whom Dewhurst, in the eyes of the law, intended to make a trustee, and the law usually constitutes one under such circumstances. Wright’s position is not only wholly disconnected from the transaction, but entirely hostile to it.

The trouble with complainant’s case is, that they are asking a court of equity to aid. them in something which is contrary to the policy of the law: This a court of equity will not do, but judging those who pray at its hands relief which the courts of law cannot afford, by the case they make for themselves, it will leave them where they are if it appears they are seeking to evade the policy of the law as defined in a public statute. 1 Perry on Trusts, sec. 131 ; Proseus vs. McIntyre, 5 Barb., 425 ; Baldwin vs. Campfield, 8 N. J. (Eq.), 891; Cutler vs. Tuttle, 19 N. J. (Eq.), 549; Ford’s Executors vs. Lewis, 10 B. Mon., 127; Camden vs. Anderson, 5 T. R., 709 ; Yallop, Ex parte, 5 Vesey, Jr., 60 ; Houghton, Gribble, Ex parte, 17 Vesey, Jr., 251 ; Graves vs. Graves, 3 Y. & J., 163 ; Childers vs. Childers, 1 De G. & J., 481 ; Atkins vs. Kron, 5 Iredell (Eq.), 207; Leggett vs. Du Bois, 5 Paige, 114 ; Hubbard vs. Goodwin, 3 Leigh, 532 ; McCaw vs. Galbraith, 7 Rich., (Law.), 74 ; Anstice vs. Brown, 6 Paige, 448.

The purpose of the act of' Congress, as set out above, was the relief of persons who had previously entered for homesteads lands under any of the homestead laws of the United States, and also the relief of the persons to whom the right of those having so entered lands for homesteads had been previously attempted to be transferred by bona fide instrument in writing. The policy of the act was to permit these two classes of persons to purchase for cash, or make a cash entry of the lands upon the terms stated in the act, and thus save them from the loss consequent upon failure to comply with the ordinary statutory requirements as to residence, or occupation, and improvement in case of homestead entries. Neither of these classes include, nor does the policy of the act embrace, a person to whom the person making the entry may have made a transfer, or a bona fide attempt to transfer, subsequent to the act. The act-does not permit a person who belongs to neither of the two favored classes to avail himself of the benefits offered them, by doing for himself and with his own money, but in their name and upon their application, and the proof of identity which the provisions of the act palpably render indispensable, that which he conld not do if acting avowedly and openly for himself ; nor will a court of equity, even though a patent in the name of one entitled to it under the provisions of the above statute had been secured by a person not belonging to either of the favored classes, relieve such person of unanticipated obstacles to the beneficial realization of that which the statute never intended he should acquire under its provisions.

If the bill showed that Dewhurst had applied to the government in his own name as the transferee of Dean under Dean’s deed of December 2d, 1884, to him, for the benefit of the act of Congress, and that the land officer had decided that he was by virtue of such deed entitled to the benefit of the act, and had actually sold to him, and made the conveyance in the name of Dean, a different case would be before us, and we do not say what our conclusion would be. As it is, the bill is not sufficient in its statement of the details of the procedure to justify a conclusion that Dewhurst has operated in this way and in his own name, and not under the name of Dean. It cannot be inferred from the statements of the bill that the government officers have dealt with Dewhurst as the tranferee of Dean; the only inference legitimate, in view of the law, is that Dewhurst after Dean’s refusal to purchase, did so really for himself as between him and Dean, but act ually in Dean’s name. This the law did not permit him to do, and a court of equity will not sanction.

We of course do not mean to intimate any judgment as to the validity of the patent. No such question is before us. However valid it may be as between Dean and the government, and we do not say it is not entirely so, we only say that a court of equity will not aid complainants upon the case made by the bill, but will, as to the case made by this bill, leave all the parties in the position they occupy at law.

The order appealed from is affirmed.