The plaintiff 'brought this action .to recover possession of eighty acres of land situated in Richland county. The defendant’s .answer, in addition to a general denial, contains twenty-five paragraphs, in which he sets forth facts which- he contends furnish grounds for the equitable relief prayed for, to wit, that the plaintiff be decreed to hold the title in trust for the defendant, and that he be required to convey the same to him. A -demurrer to this portion of the answer was sustained, and defendant appeals from the order.
The answer, wh-i-ch consists of twenty-seven .printed pages, alleges in substance that the land in question was, on- April 1, 1896, a part of the public domain; that on said date the defendant established a residence thereon, and has since continuously resided on the same; that on May 4, 1896, he presented his homestead entry to the land office at Fargo-; that, at a hearing -had on October 1, 1896, relative to the priority of settlement, the local land office decided in favor of the defendant; that upon appeal this decision was reversed by the commissioner of the general land -office, and a decision rendered in favor of the plaintiff; that upon appeal from the latter decision to the secretary of the interior if was reversed, and, on-February 7, 1899, a decision was. rendered awarding the land to the defendant, which decision is- set out in full and made a part of the answer; that plaintiff’s petition for a rehearing w-as denied on March 17, 1899; that on April 20, 1899, the land department, iby an order through the secretary of the interior, closed the case and directed that the defendant’s application foe received; that on April 27, 1899, the defendant made his homestead entry and received a register’s and. receiver’s receipt; that on May 8, 1899, the l-o-cal land office pretended' to order a rehearing on charges of abandonment preferred by the plaintiff, and on September 19, 1900, the local land -office decided in favor of the .plaintiff, canceling the defendant’s entry and awarding the plaintiff the right to file; that upon appeal the foregoing decision was sustained by the commissioner of the general land office and by the secretary of the interior; that a review was denied and the case closed, and on December 8, 1900, the defendant’s entry was canceled; that the plaintiff made his homestead filing on December 19, 1900; that on May 24, 1902, the plaintiff, over defendant’s protest, made final proof, which was accepted by the local land office and approved upon appeal. In view of the conclusion hereinafter stated, the particular facts alleged in the answer as grounds for the equit*453able relief sought need not be set out. The prayer of the answer is that the “plaintiff be decreed to 'be the trustee of defend&mib of said land; that plaintiff be decreed to transfer and convey to defendant all his right, title and interest to said land;” and for general relief. The demurrer attacked the answer upon the ground that “the facts pleaded therein are insufficient to constitute any defense or counterclaim to plaintiff’s cause of action or against the plaintiff herein,” and upon the “further ground that the same show upon their face that all .matters therein -pleaded, as between plaintiff and defendant, have been fully and finally determined and adjudicated in a tribunal of competent jurisdiction.”
In our opinion the demurrer was properly sustained. The defendant seeks to have the plaintiff declared a trustee of the legal title and required to convey the same to him. As a basis for this relief, he has alleged in great detail fraud -on the part of the plaintiff, and various errors of law on the part of the officials of the land department. There is, however, no allegation that a patent has been issued to the -plaintiff. ' Without this allegation, or its equivalent, it is entirely clear that the part of the answer attacked by the demurrer does not state facts sufficient to constitute a defense or counterclaim. Until the patent issues the title is in the United states and the land department has complete control of the question. Bank v. Bladow, 6 N. D. 108, 69 N. W. 41; s. c., 176 U. S. 448, 20 Sup. Ct. 425, 44 L. Ed. 540. The facts pleaded show that the legal title is in the United States and not in the plaintiff. There is, then, no basis of fact for the relief sought, for the plaintiff -cannot be declared a trustee, or be compelled to convey title which he d-oes not possess. -“After the United States has parted with its -title and the individual has become vested with it, the equities subject to which he holds may be enforced-, but not before.” Marquez v. Frisbie, 101 U. S. 473, 25 L. Ed. 800. Prior to that time “the interior department is the tribunal constituted by law and authorized to hear and determine all questions pertaining to the rights -of the respective parties to the patent.” Grandin v. LaBar, 3 N. D. 446, 57 N. W. 241, and cases cited; 26 Am. & Eng. Enc. Law (2d Ed.) 379, and -cases cited-. But the courts h-ave power, after the title to land has passed to a private party, to correct the errors of the officers -of the land department which have resulted from the fraud, mistake or erroneous- views of the law, and to declare the legal titl-e to th-e land to be -held- in trust -f-o-r those who-have the better right thereto, and to compel a conveyance accord*454ingly. Parsons v. Venzke, 4 N. D. 452, 457, 61 N. W. 1036, 50 Am. St. Rep. 669, affirmed 164 U. S. 89, 17 Sup. Ct. 27, 41 L. Ed. 360.
(105 N. W. 233.)In this case, however, the title had not passed. The facts alleged do not show, therefore, that the defendant is entitled to the relief sought in his alleged counterclaim. Whether the allegations of the answer are otherwise sufficient we need not determine. The omission above referred to is fatal.
Order affirmed.
All concur.