This is an action of ejectment. The defendants answered and also filed a cross-complaint.
The equity set up in the cross-complaint is based on these facts: In 1853 Jones & Belden located school land warrants on these and other lands, entered into possession thereof, and made improvements thereon; and in 1858 they sold and con*380veyed the same to Henning; and in 1861. Henning sold to Howe a tract containing eighty acres, including the two-acre tract—the tract in controversy. In 1863 Howe sold the two-acre tract to Froment; Froment afterwards sold the same to "White; and White sold the same to Younger & Logan, the lessors of defendant Bartlett. Each of the purchasers successively took possession and maintained valuable improvements on that tract. Henning sold to plaintiff one acre of land in 1862; and Howe, in 1864, sold to plaintiff all of the eighty-acre tract except the two-acre tract; and plaintiff" entered, claiming solely under the school land warrant location. In 1867, while the several purchasers under Howe were in possession of the respective parcels claimed by them, the lands were surveyed by the United States, and immediately thereafter the plaintiff applied to preempt and preempted one hundred and sixty acres (which include the lands in suit) and has received a patent therefor. It is alleged “ that the procuring of such patent is in fraud of the rights ” of the defendants.
The location of the school land warrants in 1853, prior to a survey of the land, was void. The authorities on this point are too numerous to require citation. The fact that both the plaintiff and the defendants purchased distinct parcels from the same party, and by virtue thereof acquired the possession of tlieir respective parcels, creates no relation of trust or confidence between them; nor will it render a subsequent purchase by one party of both parcels fraudulent as to the other party, nor make such subsequent purchase inure, in equity, to the benefit of the other party. The facts stated in the cross-complaint show neither that the acquisition of the title by the plaintiff" from the United States was fraudulent in a legal sense, nor that a trust was thereby created in favor of the defendants.
Had it been alleged that between the defendants, or those under whom they claim, and the plaintiff, the relation existed *381of tenants in common, or of mortgagor and mortgagee, or vendor and purchaser under a contract which remained wholly or partially unperformed on the part of the plaintiff, or some other relation, showing’ an existing obligation or liability on the part of the plaintiff to the defendants or their grantors, we might be required to investigate and determine questions of trust, estoppel, and the like, arising between the parties; but where, as in this case, two or more persons separately purchase distinct parcels of land from a common grantor, holding under an invalid title, and one of them thereafter acquires the true title, those questions do not arise, for there is not a single fact on which to build up a trust or an estoppel.
This leaves for consideration only the questions relating to the legal title, and the incidental question in respect to the improvements on the two-acre lot, claimed by the defendants. In considering the cross-complaint, we have accepted as true all its allegations, but the agreed statement of facts and the finding have not been considered in connection with the cross-complaint, for they cannot be regarded as adding thereto any further fact. The cross-complaint must fall unless it is sustainable on its own allegations of fact.
The patent issued by the United States to the plaintiff is prima facie valid, and it conveyed the title, unless the defendants acquired the title by virtue of the location of the school land warrants, and by the aid of the Act of Congress of July 23d, 1866, to quiet land titles in California, or unless the patent was issued without authority of law, and therefore void. The Act of 1866 (14 U. S. Stats. 218) confirms certain invalid selections of land, theretofore made under the authority of the State; or, more properly speaking, the means are thereby provided by which the selections may be confirmed and the title to the lands acquired. The selection, in this case, comes under the provisions of the third section of the Act, as the lands were not surveyed at the *382passage of the Act. Under the public land system of the United States, lands are not treated as surveyed until the township plat is approved by the Surveyor General and returned to the proper Register’s office. The claimant is required by that section to “present and prove up” his purchase and claim within the time “allowed to preemptioners under existing laws;” and after the purchase and claim have been presented and proven up, the Commissioner of the General Land Office is required to certify the lands over to the State. It does not clearly appear that a claim was presented under that Act; but if such was the case, it does not appear that it was proved up, or that the lands were certified over to the State. It is quite apparent that no title passes from the United States to the State, or the purchaser from the State, until the lands are “certified over” to the State by the Commissioner. Ro title, therefore, was acquired by the defendants, by virtue of the location of the school land warrants and the confirmatory Act of Congress.
The sole ground of attack on the patent, is that as the plaintiff’s declaratory statement was filed before the filing with the Register of the township plat, it is a mere nullity; and that a patent issued without a declaratory statement having been duly filed, is unauthorized and void. The first branch of the proposition need not be considered. The authorities are not agreed upon it; but it may be accepted as sound for the purposes of this case. Ro authority is cited by the defendants which supports the second branch of the proposition, and none has come to our notice. It is not true that declaratory statements are in all cases required to be filed by preemptioners, without regard to the class to which the lands desired to be purchased, belong. The Act of March 27th, 1854, for the relief of settlers on lands reserved for railroad purposes, and the rules and regulations prescribed by the Secretary of the Interior, in pursuance of that Act, dispense with the declaratory statement. (See 10 *383U. S. Stats. 269; 1 Lester Land Laws, 213, 376.) As the party claiming under a patent, has the benefits of all the usual presumptions that the officers righly performed all their duties in selling the land and issuing the patent therefor, the burden is cast on the party who assails the patent, to make it appear that it was issued without authority of, or contrary to law. It was incumbent on the defendants here to show, that the land in this case belonged to a class which could not be purchased by a preemptioner, without first filing his declaratory statement. This they have not done, and we cannot hold that the patent is void merely for the want of a declaratory statement.
The Act of March 30th, 1868 (Stats. 1867-8, p. 708), provides that an inhabitant of this State, who has put improvements upon any lands of the United States or this State, or has the right of possession of such improvements, may remove the same within six months after the lands shall have become the private property of any person; and declares that houses, barns, sheds, outhouses, buildings, fences, orchards, and vineyards shall be held to be improvements within the meaning of the Act. This enactment raises the question whether this State has authority to provide, that a patent issued in accordance with the Acts of Congress, upon a sale of the public lands of the United States, shall not convey absolutely to the purchaser, all that it purports to convey—all the real estate within the boundaries of the lands described in the patent. If houses, fences, orchards, and vineyards on the lands of the United States are real estate, they are as much a part of the freehold as the soil itself; and the statute, by giving to them other names, does not change their character or sever them from the land. They being a part of the freehold, a patent issued in the usual form by the United States, would convey them to the purchaser of the land, and the State cannot prevent them from vesting absolutely in the purchaser by virtue of the patent, *384without interfering with the primary disposal of the public lands by the United States. When the “improvements” are in fact personal property, it needs not the aid of a statute to give the owner the right to remove them from the land, and it is equally clear that the statute, so far as it purports to give the claimant the right to remove them from lands of which they formed a part when they were sold and conveyed by the United States, is void, because in conflict with the Act admitting this State into the Union.
Judgment affirmed.