¶1dissenting:
I think that this case cannot, in principle, be distinguished from that of Snow v. Ferrea, referred to in the opinion of the majority of the Court. In that case, as in this, the purchaser entered into immediate possession of the premises under the purchase, and only by reason of such possession was enabled, under the act of Congress of March 3, 1863, to obtain the title of the United States, and the grantor, in that case Hannibal (in this case Frisbie), was “thereby disabled from maintaining the claim against the United States in his own name. (Snow v. Ferrea, supra.)
¶2In that case the condition was that the grantor “shall obtain the title of the United States;” in this case, the condition is that there shall be “final confirmation by the constituted authorities of the United States,” etc. Now, while these conditions differ in point of mere phraseology, they are in substance one and the same. The purchaser in each case contracted for the title of the United States, and in each case obtained it. In the present case, had the Vallejo title been finally confirmed by the Court, the stipulated title would have been obtained through the decree of confirmation. This would be so, because the Supreme Court of the United States is one of “the constituted authorities of the government of the United States,” through whose favorable action the title of the United States might have befen obtained within the conceded terms of the condition. But the Congress of the United States is also one of the “constituted authorities,” through whose favorable action the title of the United States might be, as it was in point of fact, obtained. The equity upon which the case of Snow v. Ferrea was determined here was founded upon the circumstance that the purchaser had, in fact, obtained the title of the United States, and had been enabled to do so only through the possession which had been taken under the purchase, both of which circumstances also appear in the case now under consideration.
¶3I, therefore, dissent from the judgment of the majority, and am of opinion that the judgment of the court below should be affirmed.