First. This court held in the case of Frink v. Darst, 14 Ill. 304, that the deed from Bogardus to Underhill only transferred the interest that Bogardus then had in the land; and that it did not operate to pass the title subsequently acquired by him. Being a mere quitclaim deed without covenants, it could not, on the principles of the common law, operate by way of estoppel to conclude Bogardus from asserting the after acquired title. As it did not purport to convey an estate in fee-simple absolute, the title afterwards obtained by Bogardus could not, under the provisions of our statute, inure to the use and benefit of Underhill. That decision was the result of mature consideration; and it expressly determined this to be the legal operation and effect of the deed. It was, however, made upon the naked instrument, and without reference to a state of facts disclosed in this record. It now appears, that prior to the date of the deed, Bogardus had established a right of preemption to the land; and that subsequent to the execution of the deed, he entered the land under this preemption right with funds furnished by Underhill, and obtained the legal title from the United States. The question therefore arises, whether these additional circumstances change the legal aspect of the case.
The fact that Bogardus made proof of a preemption to the satisfaction of the land officers, gave him no title to the land. It merely established a right in him to enter the land at the minimum price. He had to make the entry and pay the purchase-money, before he could obtain any title whatever. Until that was done, the title remained exclusively in the United States. At the date of the deed, the government had not parted with the title. Bogardus had, therefore, no title to release, and Underhill acquired none under the deed. As between the parties, Underhill succeeded to the possessory rights of Bogardus. By the force of our laws, he became entitled to the possession of the land, and might recover the possession from Bogardus by action of ejectment. He could also retain the possession against third persons, so long as the. land continued to be the property of the United States. But these possessory rights wholly ceased on the entry of the land. They could not be enforced against those deducing title from the United States. Bogardus acquired the complete legal title by the entry, and he could then compel Underhill to surrender the possession. He could maintain ejectment against Underhill, because the latter could neither show title in himself, nor an outstanding title in a third person.
The fact that the land was entered with the money of Under-hill, does not affect the question of title in this case. This is an action at law, and the legal title must prevail. The court cannot inquire into the equities of the parties. They must be ascertained and adjusted in another forum. Where land is purchased in the name of one person with the funds of another, the legal estate is vested in the former. The latter acquires only an equitable estate, and he must resort to a court of equity to enforce it against the legal title. He cannot assert it in an action of ejectment. It may perhaps be, that a trust resulted in favor of Underhill by the payment of the purchase-money. If so, he and those claiming under him must- seek relief in a court of equity. It is only in equity that it can be enforced against the legal estate. The trust results from the payment of the money, and not because of the prior conveyance. The deed only professed to release the present interest of Bogardus in the land, and as he had not at the time either the legal or the equitable estate, Bogardus had, at most, only the right to purchase the land within a specified time at a certain price, and a license to occupy the same until the termination of that right. Whether this right of preemption was assignable, so as to authorize Underhill to enter the land, is a question winch does not arise. The land was not entered in his name, nor in that of the representative or assignee of Bogardus. The entry was made in the name of Bogardus, and the title passed from the United States to him. He had not previously done any act, which operated to transfer the title through him to Underhill. He was not estopped by the deed from asserting title against Underhill, for it contained no covenants, express or implied. He did not undertake to convey an estate in fee, and therefore the after-acquired title did not inure to the benefit of Underhill.
In no point of view, can Underhill and those claiming through him assert title under this deed. The cases cited on the argument,do not maintain a different doctrine. Delauney v. Burnett, 4 Gil. 454, is clearly distinguishable from this case. In that case, the entry was made' in the name of “ the legal representatives of R. P. Guyard ; ” and the court decided that the title vested in the grantee of Guyard. The question was to whom the grant was made; in other words, who was the legal representative of the preemptor — the heir or grantee. If this land had been entered in the name of the legal representative or assignee of Bogardus, that case might be applicable. It might then be inferred from all the circumstances of the case, that the purchase was made by Underhill, and that the government designed to make the grant to him. The Grand Gulf Railroad v. Bryan, 8 S. & M. 234, and Montgomery v. Sandusky, 9 Missouri, 714, have no bearing upon the present case. In them, confirmations had been made to the legal representatives of the original claimants of the land; and it was held that the title passed to the grantees of those claimants. The cases of Stoddard v. Chambers, 2 How. U. S. 284, and Marsh v. Brooks, 14 Ib. 513, are to the same effect.
Second. The deed from Bogardus to Bigelow and McClure clearly operates to pass the after acquired title to two thirds of the land. It contains this provision: “ I do hereby covenant with the said Bigelow and McClure, that if at any time hereafter I shall acquire any further or additional title to the said lot of land, the same shall inure to them in proportion to the interest hereby conveyed to them.” This is an express covenant that any title which the grantor shall afterwards receive, shall inure to and be vested in the grantees. It is a covenant running with the land, and binding on all persons deriving title through the grantor, with notice of the deed. It concludes them from setting up title against the grantees and their assigns. It was manifestly the intention of the parties, that the title when obtained from the government should pass to the grantees. This is apparent from the circumstances of the case. Bogardus at the time was not the owner of the land, but he expected to acquire the legal estate under a preemption right. He sold two thirds of the tract to Bigelow and McClure for the consideration of $5,000, and inserted this covenant in the deed for the express purpose of transferring to them the after acquired title. The parties contracted with direct reference to such a state of case as has transpired. This deed was recorded long before the executrix of Bogardus made the conveyance to Cole. The latter and those claiming under him, had therefore full notice of the deed and the covenant in question, and are bound thereby.
The court erred in finding the issue on the second count in favor of the defendant. On the evidence, the plaintiffs were entitled to recover two thirds of the premises demanded.
The judgment is reversed, and the cause remanded.
Judgment reversed.-