(concurring).
I concur in the opinion of the Court with serious misgivings. The United States parted with the legal title of the land involved on December 3, 1903. This aetion was commenced in 1926. The specific prayer is that the certification of 1903 be declared null and void, and that the United States be decreed to be the owner, and that it recover the possession of, the land. There is a prayer for general relief, but no specific prayer that the title be impressed with a trust.
Section 8 of the Act of March 3,1891 (26 Stat. 1099, 43 USCA § 1166 provides that “suits by the United States to vacate and annul any patent * * * hpreafter issued shall only be brought within six years after the date of the issuance of such patents.” The avowed purpose of this statute, as disclosed by its legislative history, was to give stability to land titles and to encourage settlement of public lands. The statute applies although the patent was procured by fraud. United States v. Winona, etc., R. Co., 165 U. S. 463, 476, 17 S. Ct. 368, 41 L. Ed. 789. If this statute is to serve the purpose for which it was passed, it would seem -that it should not be circumvented by asking for the same relief in a different form of aetion. And the Supreme Court has so held. In United States v. Chandler-Dunbar *159Co., 209 U. S. 447, 450, 28 S. Ct. 579, 580, 52 L. Ed. 881, the United States filed a bill to remove a eloud from its title to certain lands. The defendant relied upon this statute. The government replied that the action was not one to vacate and annul a patent, but to quiet title. The defendant prevailed, the court holding that—
“In form the statute only bars suits to annul the patent. But statutes of limitation, with regard to land, at least, which cannot escape from the jurisdiction, generally are held to affect the right, even if in terms only directed against the remedy. Leffingwell v. Warren, 2 Black 599, 605,17 L. Ed. 261, 263; Sharon v. Tucker, 144 U. S. 533, 12 S. Ct. 720, 36 L. Ed. 532; Davis v. Mills, 194 U. S. 451, 457, 24 S. Ct. 692, 48 L. Ed. 1067, 1071. This statute must be taken to mean that the patent is to be held good, and is to have the same effect against the United States that it would have had if it had been valid in the first place. See United States v. Winona & St. Peter R. R. Co., 165 U. S. 463, 476,17 S. Ct. 368, 41 L. Ed. 789, 795.”
This reasoning seems to me to be sound. I have difficulty in reconciling myself to the proposition that if, by reason of the statute, the government may not bring suit to annul its patent, it may nevertheless recover the land by impressing a trust on the title. True, the latter action saves the rights of bona fide purchasers; but those generally are saved by other sections of the statute. The situation is aggravated when, as in the case at bar, the form of the action is one to vacate the certification.
If it be assumed that the statute applies to certifications as well as patents (a question that has not been ruled by this Court), the conclusion that a suit to recover the lands may be maintained, notwithstanding the statute, is justified by two decisions of the Supreme Court. In Lockhart v. Leeds, 195 U. S. 427, 436, 25 S. Ct. 76, 49 L. Ed. 263, cited by Judge Lewis, it was held that a trust might be impressed upon land, notwithstanding there was no specific prayer therefor, and although such relief is at variance with the theory disclosed by the specific prayer of the bill. It is proper, therefore, to treat this bill as one seeking to impress a trust upon real estate. While the Amalgamated Sugar Company is entitled, as a constructive trustee, to the benefit of any statute of limitations, the Supreme Court has held, in United States v. New Orleans Pac. Ry. Co., 248 U. S. 507, 39 S. Ct. 175, 178, 63 L. Ed. 388, that a statute similar to the one in question does not bar an action to impress a trust. That was an action by the United States to recover certain lands for the benefit of certain homestead claimants. The prayer was to cancel the patents or declare a trust. The Supreme Court disposed of the statute of limitations by holding:
“As the patents were issued before, and the suits were brought more than five years after, the Act of March 2,1896, c. 39, 29 Stat. 42 [43 USCA §§ 900-902], the prayer that the patents be canceled must be put out of view, and the alternative prayer — that the title under the patents be declared to be held in trust for the homestead claimants and the trust enforced — must be regarded as if standing alone.”
It is suggested that Independent Coal & Coke Co. v. United States, 274 U. S. 640, 47 S. Ct. 714, 71 L. Ed. 1270, is to the same effect. But in that case the United States had been decreed to be the owner of the lands in an action brought within the statutory period, and the latter suit was in aid of the earlier decree. But the ease of United States v. New Orleans Pac. Ry. Co., supra, is analogous on the facts, and the decision is clear-cut. While the result seems to be to enable the government to escape the statutory bar in all cases except where a bona fide purchaser is involved, and to disturb the repose sought by the statute, I feel that the two Supreme Court eases cited are determinative, and therefore coneur.