ent shall issue to him. This statute certainly does not confer upon him the legal title to the land. That still remains in the United States. Nor is it easy to perceive how the statute can be said to vest in the plaintiff an equitable title to the land. He is a mere settler, with a right to purchase on making a certain payment. It is not pretended that that payment had been made at the time this action was commenced. The plaintiff then had neither a patent nor a right to a patent. He was not in possession under a contract binding the owner of the land to convey to him the legal title. The government had not obligated itself to make such conveyance. It had granted to the plaintiff a concession which it could at any time withdraw. Whatever privilege he held under this act, the government was under no obligation, moral or legal, to continue to respect. He was the recipient of an indulgence—a favor; but in no sense could he claim to be the owner of any right enforceable in a court of law or equity. The vendee in a contract for the sale of real estate is, in equity, regarded as the owner, and is therefore said to hold the equitable title because.he can compel the vendor to perform his contract. There rests upon the vendor an obligation to perform it which equity will enforce. The plaintiff in this case occupies no such position. He has a mere privilege. If he avails himself of it by the payment of money, he will then become the owner of the equitable title to the land, and possibly secure a standing in equity to remove a cloud upon his equitable interest. But we do not decide whether an equitable title is sufficient to warrant the maintenance of an action to remove a cloud therefrom. There is certainly authority for such a doctrine. See Hart v. Bloomfield, (Miss.) 5 South. Rep. 620; Slaon v. Sloan, (Fla.) id. 603; 3 Pom. Eq. Jur. § 1399, note 4; Bryan v. Winburn, 43 Ark. 28; Lamb v. Farrell, 21 Fed. Rep. 5; Emery v. Cochran, 82 Ill. 65; Langdon v. Templeton, 17 Atl. Rep. 839. On the other hand there is much which inclines to the more strict rule which requires a legal title to support such an action. See Frost v. Spitley, 121 U. S. 552, 7 Sup. Ct. Rep. 1129; Thomas v. White, 2 Ohio St. 548; Holland v. Challen, 110 U. S. 15, 3 Sup. Ct. Rep. 495.
It is further insisted that under the decisions in Railroad Co.
