I concur in the opinion and conclusion of the circuit judge, and only wish to add:
1. That in my judgment, the bond from Lownsdale to Pettigrove, was given merely for the personal security or benefit of the latter, and that the provisions in it do not amount to a covenant with any one, but only constitute a condition, which the former was at liberty to comply with, and thus avoid the payment of the penalty thereof, or disregard and abide the consequence — that is, become liable to the payment of such penalty — and that such bond having been purchased by the defendants and heirs of said Lownsdale, the obligor therein, from Pettigrove, the obligee, it no longer has any force or effect as to any one.
2. That if such bond could be construed as a covenant upon the part of Lownsdale “to do and perform all reasonable acts, and make all reasonable exertion to procure from the territorial government of Oregon and the government of the United States a good and sufficient title to and for said land claim,” and to “in no way sell, transfer or incumber the lands and tenements above specified and exempted from said sale,” it was a covenant with Pettigrove only, and one to which neither Vaughn nor his grantors were or became parties or privies, and therefore, neither he nor they could rightfully claim any interest under it, or maintain any suit to enforce it, or for its non-performance.
3. That at the date of such bond — September 22, 1848 — neither Lownsdale nor Pettigrove had any interest in, or right to, this land, and therefore could not, by any act of theirs, or either of them, impress or fasten a trust upon it in favor of any one.
4. In the partition of the land claim between Lownsdale, Coffin and Chapman, under the escrow, it being purposely arranged that the tract allotted to Lownsdale should include all the lots previously sold by Pettigrove, this fact itself shows that neither Coffin nor Chapman considered themselves in any way personally interested in such sales or lots, or the obligations or agreements existing between Lownsdale and Pettigrove concerning them, and that there is therefore no reason to believe — if there was otherwise any doubt about it — that the parties to the escrow ever contemplated or thought of including such sales or lots in the fourth covenant of such instrument
5. As to the matters outside of the written instrument which are relied upon to establish a trust in these lots in favor of Vaughn and his grantors, or to estop the defendants from asserting the legal title thereto derived from their ancestor, the testimony offered in sup*1040port of them is in the greater part incompetent and that which is admissible at all is far from sufficient to prove either the alleged trust or estoppel.
[NOTE. Por other suits by the same plaintiffs against other claimants et interest in the “Portland Land Claim.” see Cases Nos. 8.012, 8,017, 8,015. 8,024. For suits brought against these plaintiffs in the same matters, see Cases Nos. 4,707. 4,775, 4770. Por suits brought by the plaintiffs for their interest under Nancy Ijotvnsdale, see Cases Nos. 8,021, 8,022, 8,013.]The proposition that there ever was a usage in Oregon by which an occupant of the public lands who sold a town lot within the limits of his claim or occupation, by a mere quitclaim deed, was, notwithstanding, considered a trustee to acquire the legal title in said lot from the United States for the benefit of the grantee in such deed or his assigns, is simply preposterous; nor could such a usage, if it existed in fact, be allowed to control or modify the general rule of law to the contrary. But in fact, the evidence in this case, when estimated according to its worth, shows what every one, familiar with the early history of the country, knows to be true, that as a rule, the purchaser of any portion of the public lands from a prior occupant thereof, if he bargained for anything beyond the mere possession, had a stipulation or covenant inserted in the contract, bond or deed to that effect.
Again, the statute of frauds was in force in Oregon, during all the period covered by these transactions, and therefore no trust in this land could be established by parol, even if the parties had had such an interest in the soil as would enable them to impress a trust upon it; nor do the facts proven concerning the acts and declarations of Lownsdale as to his interest in or right to the premises, constitute an estoppel when considered in connection with the situation of the parties, and the apparent uncertainty of the title, although it now appears as a matter of law that the legal title to the lots in question was in Lowns-dale, as a donee of the United States, under the act of September 27, 1850, from the date of his settlement on the land claim.