Approved in Weyerhaeuser v. Hoyt, 219 U. S. 388, 391, 55 L. Ed. 262, 263, 31 Sup. Ct. 300, holding lands embraced in list of indemnity selections of Northern Pacific Railroad filed with Land Department were not subject to entry or purchase during interval before approval of selections; United States v. Inman-Poulsen Lumber Co., 233 Fed. 944, holding relinquishment by Northern Pacific Railroad under act of July 1, 1898, of lands granted to railroad and occupied by settlers had effect of revesting title in United States as of date of grant; United States v. Oregon & C. R. Co., 186 Fed. 880, holding under grant of 1866 to Central Pacific Railroad, company acquired no rights until filing its assent, and took lands subsequently earned subject to proviso in amendment of 1869; Peyton v. Desmond, 129 Fed. 11, 63 C. C. A. 651, homesteader may recover value of timber wrongfully cut after initiation of claim and prior to issuance of patent; Miller v. Higgins, 14 Cal. App. 162, 111 Pac. 406, holding effect of decree relating to custody of child should be made to operate from date of hearing and oral announcement of decision; Morrow v. Warner Valley Stock Co., 56 Or. 345, 101 Pac. 183, holding under act of 1860, transferring swamp-lands to State, legal title of State would not relate back to date of act where effect would be to invalidate title of persons taking lands under homestead laws after passage of swampland act and before patent; Wiese v. Union Pac. Ry. Co., 77 Neb. 45, 46, 108 N. W. 177, holding patent to land granted to Union Pacific Railroad related back, when issued, to date of grant; Krakow v. Wille, 125 Wis. 288, 103 N. W. 1123, where contract for sale of land provides for delivery of deed after certain portion of price paid, title vests as of date of contract; Redfield v. Parks, 132 U. S. 246, 33 L. Ed. 330, 10 Sup. Ct. 85, holding that the statute of limitations of State did not commence to run against a claimant from the date and issue of the register's certificate, as the patent did not relate back to the certificate; Bartlett v. Ambrose, 78 Fed. 843, 24 C. C. A. 397, holding that a tax deed which showed on its face that it was void did not show color of title, but possession under it for the prescribed period barred the right of the true owner; Brawford v. Wolfe, 103 Mo. 400, 15 S. W. 429, holding that until election a widow had no interest in the land over which her right of dower extended, and on election the estate thereby acquired did not inure by relation to the benefit of her prior grantee; Ormiston v. Trumbo, 77 Mo. App. 316, holding that a guardian's bond, filed after commencement of suit, took effect by relation as from day of its date and of the appointment; dissenting opinion in Baldwin v. Letson, 6 Kan. App. 21, 49 Pac. 623, majority holding under Kickapoo treaty lands allotted to Indian became alienable when patent issued to him, and not when he made proof to become citizen.

Distinguished in Tyce Consol. Min. Co. v. Langstedt, 1 Alaska, 443, 445, 447, ten year statute of limitations begins to run in favor of adverse possessor of part of mining claim from time of location.

Title of claimant of public land commences with survey and location, and so far as it is necessary to protect his rights and to those claiming under him, patent is held to take effect by relation as of that date.

Approved in Knapp v. Alexander-Edgar Lumber Co., 237 U. S. 167, 59 L. Ed. 898, 35 Sup. Ct. 515, holding title under patent to homesteader related back to date of initiatory act so as to cut off intervening claimants; United States v. Detroit Timber etc. Co., 200 U. S. 335, 50 L. Ed. 505, 26 Sup. Ct. 282, applying rule to purchaser of timber land from patentees for value and without notice of fraud on part of original entrymen; United States v. Anderson, 194 U. S. 399, 48 L. Ed. 1039, 24 Sup. Ct. 716, government cannot, as against its grantees of land within indemnity limits of railroad grant, retain sum collected from trespassers for removal of stone between selection and approval of selection; Southern Pacific R. R. Co. v. Arnold, 162 Cal. 734, 124 Pac. 833, holding due selection by railroad of lieu lands vested right to lands as against persons thereafter attempting to initiate claim under general land laws; Ellis v. Witmer, 134 Cal. 252, 66 Pac. 303, dating bond as of time it should have properly been issued; Rogers v. Clark Iron Co., 104 Minn. 223, 116 N. W. 749, holding on issuance of patent to heirs of original applicant beneficial interest passed to assignee by doctrine of relation; Union M. & M. Co. v. Danberg, 2 Sawy. 455, Fed. Cas. 14,370, holding that a homestead entryman rightfully in possession is entitled to same rights as other riparian proprietors, and the patent when issued relates back to the original entry so far as is necessary to protect his right; Hayner v. Stanly, 8 Sawy. 226, 13 Fed. 226, holding that when a patent issues it attaches itself to the entry, and in that way overreaches an elder patent issued on a younger entry; Pacific Coast Min. etc. Co. v. Spargo, 8 Sawy. 647, 16 Fed. 350, holding that reservation in a land patent of the right of the proprietor of a vein to follow the mine into the patented land did not extend to mines located after the date of the patentec's entry and payment; Lux v. Haggin, 60 Cal. 429, 10 Pac. 776, holding that certificates of purchase in connection with the patents were admissible as part of the evidence in chief under the averment of ownership in fec as of the date of the certificates; Cruse v. McCauley, 96 Fed. 373, patentee's riparian rights date from his entry not from patent; dissenting opinion in United States v. Loughrey, 172 U. S. 228, 229, 43 L. Ed. 428, 429, 19 Sup. Ct. 161, 162, majority holding United States, although entitled to reversion of a railway grant on failure of condition, could not maintain an action of trover for conversion of timber cut therefrom before condition failed.

Doctrine of relation is a legal fiction adopted solely for purposes of justice, and applied only for security and protection of persons who stand in same privity with party that initiated the proceedings and acquired the equitable claim or right.

Approved in Peyton v. Desmond, 129 Fed. 11, 63 C. C. A. 651, homesteader may recover value of timber wrongfully cut after initiation of claim and prior to issuance of patent; Sullivan v. Van Kirkland Land etc. Co., 124 Ala. 236, 26 South. 928, holding holder of tax title not a privy in estate with holder of fee; Jimmerson v. Fordyce Lumber Co., 119 Ark. 416, 178 S. W. 382, holding patent related back to date of entry; Gilbert v. McDonald, 94 Minn. 291, 110 Am. St. Rep. 370, 102 N. W. 713, interest of assignee of soldier's additional homestead certificate, upon filing of application for specific tract, may be transferred by quitclaim; Wilson v. Fisher, 172 Mo. 21, 72 S. W. 668, holding sheriff's deed not passing after-acquired interest of defendant in execution; Smith v. Furbish, 68 N. H. 145, 44 Atl. 408, holding reservation of part of described premises appurtenant to other land, without reference to grantor's heirs, making reserved part life estate; Martyn v. Olson, 28 N. D. 324, L. R. A. 1915B, 681, 148 N. W. 835, holding heirs of entryman who take title after his death take title free of mortgage on land made by entryman; Foraker v. Henry, 21 Wash. 237, 57 Pac. 812, dating patent issued after marriage back to time of making final proof, and holding same separate property of wife; State v. West Branch Lumber Co., 64 W. Va. 697, 63 S. E. 382, holding section 888, Code of 1906, by estopping State from proceeding against grantee in fatally defective tax deed to enforce forfeiture in name of former owner granted such forfeited title to grantee in advance of accrual of forfeiture; dissenting opinion in Smith v. Mitchell, 69 W. Va. 518, Ann. Cas. 1913B, 588, 72 S. E. 770, majority holding after bill was passed by House of Delegates, then by Senate, and sent back to House, and House refused to return it to Senate, Senate could not reconsider its vote on bill; Newhall v. Sanger, 92 U. S. 766, 23 L. Ed. 770, holding that to antedate the judicial rejection of a claim so as to render operative a grant which would be otherwise without effect, does not promote the ends of justice and cannot be sanctioned; Redfield v. Parks, 132 U. S. 249, 33 L. Ed. 331, 10 Sup. Ct. 86, holding that doctrine of relation did not apply to a patent so as to relate back to the issue of the register's certificate and set the statute of limitations running; Hussman v. Durham, 165 U. S. 148, 41 L. Ed. 666, 17 Sup. Ct. 254, holding that land located but not paid for thirty years, was not subject to State taxation, although on the face of the record a certificate, forged, had been issued; both legal and equitable titles remained in the government; Mizner v. Vaughn, 2 Sawy. 275, Fed. Cas. 9678, holding that a settler under the donation

act had a present grant from the date of his settlement, unless that took place before the act, in which case the grant took effect from the time of passage of the act, therefore the doctrine of relation did not apply to an antecedent settlement; Brook v. McComb, 38 Fed. 319, holding that, where by statute of Kansas a will must be recorded before an executor could pass title by deed, the recordation of the will operated by relation to validate a prior conveyance; Small v. Westchester Fire Ins. Co., 51 Fed. 795, holding that the rule of relation could not be invoked to put in operation the forfeiture clause of a policy which passed into the hands of a receiver appointed by creditors, proceedings for the appointment being commenced before the loss occurred; Evans v. Durango Land etc. Co., 80 Fed. 439, 25 C. C. A. 531, holding the doctrine would not be applied where it appeared the rights of the patentee, acquired by the original entry, had been lost by lack of diligence and other rights had intervened; Shay v. McNamara, 54 Cal. 175, holding that the doctrine of relation could not be resorted to to transfer a title derived under a sheriff's deed to the date of the foreclosure sale so as to let in the lien of a subsequent judgment; Hawkins v. Harlan, 68 Cal. 238, 9 Pac. 109, holding that the rule that by relation an after-acquired title by a mortgagor inured to the benefit of the mortgagee would not be given effect to when it would work manifest injustice, as to give a mortgagee preference over a vendor's lien for unpaid purchase money; Grant v. Iowa etc. Land Co., 54 Iowa, 677, 7 N. W. 115, holding that as lands in a floating grant to a railroad not earned and identified the title would not be held to relate back when identified to the grant if rights were defeated or liabilities created thereby; Reynolds v. County, 55 Iowa, 93, 7 N. W. 469, refusing to apply the doctrine in order to subject land to taxation at a time when the predecessor held neither title nor equity; Churchill v. Sowards, 78 Iowa, 474, 43 N. W. 272, refusing to apply rule so as to let in an adverse possession; Durham v. Hussman, 88 Iowa, 36, 55 N. W. 14, holding that until payment for public land was made no equitable title passed from the United States so as to render the land subject to taxation and validate by relation a sale for delinquent taxes prior to patent; Callahan v. Davis, 90 Mo. 83, 2 S. W. 217, holding that the patent when issued inured by relation to the transferee of the equitable title; Ellis v. Pomeroy Imp. Co., 1 Wash. 576, 21 Pac. 29, holding the doctrine of relation could not be invoked to divest the vested right of appropriation of a watercourse on public lands, where the final proof of the patentee was not made until after the appropriation had matured; nor, Kromer v. Friday, 10 Wash. 642, 32 L. R. A. 692, 39 Pac. 234, to defeat the claims of a widow where final proof was made before the marriage ceremony was performed but patent issued thereafter; Whitney v. Morrow, 34 Wis. 648, holding the doctrine of relation had no applica

tion to an action of waste where there was no privity of estate between the parties when the alleged waste was committed; Stahl v. Lynn, 86 Wis. 76, 56 N. W. 189, holding that a deed will not relate back to the contract for sale so as to prevent the vendor from maintaining an action against a trespasser for removing timber from the land after the contract, but before completion of the sale by payment and delivery of the deed; dissenting opinion in Baldwin v. Letson, 6 Kan. App. 21, 49 Pac. 623, majority holding Indians' deed prior to confirmation of their title passed nothing; dissenting opinion in United States v. Loughrey, 172 U. S. 225, 43 L. Ed. 427, 19 Sup. Ct. 160, arguendo.

Distinguished in M'Cune v. Essig, 122 Fed. 591, 59 C. C. A. 429, affirming 118 Fed. 277, holding homestead settler dying before final proof, patent subsequently issued to widow confers upon her exclusive title to land.

In Federal courts, action of ejectment can only be sustained by plaintiff having legal title; and patent, when regular on its face, is conclusive evidence of that title. The same rule also applies in State courts.

Approved in Tegarden v. Le Marchel. 129 Fed. 488, following rule; Rogers v. Clark Iron Co., 104 Minn. 210, 116 N. W. 743, holding in action to quiet title, under general denial defendants could show outstanding title by patent; Kircher v. Murray, 60 Fed. 52, 8 C. C. A. 448, affirming 54 Fed. 626, holding that in Federal court an action of trespass to try title could only be sustained upon the possession by the plaintiff of the legal title; Montgomery v. Donnelly, 57 Cal. 69, holding that if a plaintiff in ejectment proved title in himself under a United States patent, it would override an attempted proof that defendant had complied with the homestead laws; McKinney v. Bode, 33 Minn. 453, 23 N. W. 853, holding that the patent, regular on its face, was conclusive evidence of the legal title; Knapp v. Thomas, 39 Ohio St. 387, 48 Am. Rep. 467, holding that a pardon granted by the Governor of the State could not be impeached under State laws for fraud, except by a direct proceeding for that purpose; Bridenbaugh v. King, 42 Ohio St. 412, holding that a deed of State land under the hand of the Governor of the State passed the legal title as against all the world. (This case cites the principal case correctly as to volume and page, but under the name of Shepley v. Cowan, reported in 91 U. S. 330, 23 L. Ed. 424, which practically deals with the same point that a patent cannot be attacked collaterally.)

What title or interest will support ejectment. Note, 18 L. R. A. 782.

Patent passes government's title and is government conveyance. Where other parties possess equities superior to those of patentee, equity will en

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