delivered tbe opinion of the court:
One George A. Jones, on the 13th June, 1867, being in possession of a certain lot of ground in Salt Lake City, the title being then in the General Government, willed all his property-real and personal to Sarah Ann Jones and Catharine Jones. Two days thereafter he died, leaving both Sarah Ann and Catherine in actual possession of the lot referred to. The will provided that the property should be enjoyed equally by these two women if they could agree, etc.; but if said Sarah Ann should re-marry, the property was to be enjoyed by said Catherine during her life, and in the event of Catherine’s death before that of Sarah Ann, then the whole property was to be enjoyed by Sarah Ann. Said Sarah Ann was married in November, 1867, to Charles Harrop. Afterwards Catherine continued to reside upon and enjoy the use of said land until her death, on 12th October, 1873. On November 11, 1871, the United States issued its patent for the “ town site ” of Salt Lake City, and on the 26th July, 1872, the respondent filed his petition in the Probate Court for deed to said lot, under the “ town site” laws he being then an occupant of the lot. By order of the Probate Court he obtained his deed from the Mayor, January 10, 1873. From the language of the complaint, we gather that Sarah Ann did not occupy the lot after her marriage. The complaint charges that the respondent was in possession only as tenant of Catherine, and obtained the title by frauduently conspiring and confederating with said Catherine to cheat and defraud Sarah Ann Harrop out of her rights.
The complaint prays that the defendant (the respondent) be decreed to hold said lot in trust for the use and benefit of ap*125pellants, and to deed it to Sarab Ann Harrop, and to account for rents and profits.
Respondent demurred to the complaint for misjoinder of parties, and because it did not state facts sufficient to constitute a cause of action.
The appellant, Raleigh, being only executor of the will of George A. Jones, deceased, certainly had no interest in the property, the claim being for title to real estate. The executor has no right to the title. The heir or devisee alone could bring such suit. Sarah Ann was entitled as it was claimed to the property of the deceased, George A. Jones, after the death of Catherine. Jones had no claim upon the lot in question except a possessory one, as the title was in the Government. When Catherine died that possessory claim did not exist; it had already passed away by the title going to the respondent. If the title was obtained by fraud and conspiracy between the respondent and Catherine, it was a fraud on the Government, and not on the appellant, Sarah Ann Harrop. Said Sarah Ann was not in a condition to claim the lot under the town site laws, as she was not an occupant or in any manner in possession, nor had she been ousted of possession, but left the premises of her own accord. Respondent never recognized her as being entitled to the possession, or to any interest in the lot. We cannot, therefore, see what claim the appellants have upon the respondent. If the appellant Sarah Ann Harrop had any equitable interest in the lot she could maintain the suit, but where a party has neither a legal nor an equitable right to the property, there exists no basis for such a suit.
The judgment of the court below is therefore affirmed with costs.
The other judges concurred.