By the Court
EMMBtt, C. J.
The facts of this case, as found by the referee to whom the several issues were submitted, are as follows:
On the 11th of September, 1854, the lands described in the complaint were purchased of the United States by the Defendant Marshall, for the sum of two hundred dollars, at a sale of the public lands held in Stillwater. Eor some time prior to said sale, both Plaintiff and the Defendant Barton claimed to have settled and made improvements upon said land, by virtue of which each insisted upon the exclusive right to purchase the same, when it should be offered for sale by the proper authorities. In anticipation of said public sale, and in view of these conflicting claims, the Plaintiff and Barton, on the 9th day of September, 1854, entered into a written contract, whereby it was agreed that the lands in dispute should be bid off at the then approaching sale, by the public bidder of an association called the “ Ramsey County Claim Association,” and the certificate of purchase taken in his name. That each of said parties should furnish one-half of the purchase money, and that the lands should thereafter be conveyed by said bidder, agreeably to the determination of five disinterested citizens, the award of whom or a majority of whom, should be binding upon each of said parties, — such citizens to be selected by said parties within thirty days, and if they should disagree, then the selection should be made by the President of said Association within fifty days, if practicable. Pursuant to said contract, each of said parties furnished and delivered to the Defendant Marshall, who was the public bidder of said Association, one hundred dollars to bid off and pay for said lands, and said Marshall did bid off and purchase [291]*291the lands at said sale, taking the certificate of purchase in his own name, as before stated, under and pursuant to this agreement between Plaintiff and Barton, and not otherwise. Af-terwards, on the 15th day of December, 1854, the Plaintiff, in due form, made demand of Marshall, that he convey to him an undivided half of the lands so purchased, but Marshall refused, and afterwards, but before the commencement of this action, conveyed the whole thereof to Barton.
The Plaintiff seems to have been ignorant of the conveyance to Barton, and brought this action to compel Marshall to convey to him the undivided half of the lands, and also to restrain him from conveying the same to Barton. He declares simply upon the fact that the lands were purchased by Marshall, with funds furnished by Barton and himself, alleging that Marshall had received the funds, and made the purchase in trust for the benefit of Barton, and himself, the Plaintiff; and had taken the certificate of said purchase in his own name, by arrangement between the Plaintiff and Barton.
The Defendants answered, denying the trust alleged, or resulting from the facts stated in the complaint; and set up an agreement 'between Barton and the Plaintiff, substantially like that found by the referee, and above stated, alleging that the Plaintiff and Barton furnished the purchase money, and that Marshall received the same, and bid off said lands pursuant and in subjection to said agreement by them set up, and not otherwise ; and that Marshall afterwards conveyed all of the lands to Barton, according to the direction and award of five disinterested citizens, selected pursuant to the terms of said agreement, and to whom the parties had respectively submitted their claims to said lands. They also alleged in detail the facts upon which Barton founded his claim to purchase the land as against the Plaintiff.
In reply the Plaintiff denies the facts alleged as the foundation of Barton’s claim, and alleges facts to show that he, and not Barton, was entitled to the exclusive right to purchase the land at said sale. He then admits the signing of an agreement between himself and Barton, similar in all respects to that set up in Defendant’s answer, and reported by the referee [292]*292as above stated, but be avers that be was forced and compelled to make and sign said agreement by certain orders and threats of said Claim Association, wbicb lie details at length, together with various other averments tending to show the illegal objects and designs of said Association in reference to said contemplated public land salé. He admits, also, that persons were selected to determine the claims to said land, of him and Barton respectively, according to the terms of said agreement, as alleged in the answer, and that the parties thereto began to submit to them their several proofs ; but he avers that before said persons made and perfected any award concerning the matters submitted to them, he, the Plaintiff, abandoned said arbitration and submission, and notified said Marshall that he claimed an undivided-half of the lands ; and he denies that said persons made and perfected any award in the premises, or that said land or any part thereof was conveyed by Marshall to Barton, pursuant to the direction or determination of the persons aforesaid.
On the trial the Plaintiff commenced by introducing evidence to show the loss of the original agreement of September 9,1854, in order to lay the foundation for the introduction of secondary evidence of its contents, — various objections to which were made by the Defendants, but they were overruled and the evidence admitted. The Plaintiff then produced certain evidence, tending to show that a certain paper then and there exhibited, was a true copy of said written agreement, and thereupon offered said paper in evidence, which is in the words and figures following :
“ CORY.
“John R. Irvine and Thomas Barton, the claimants to the south-west quarter of section eleven, town twenty-eight, north, of range twenty-three west, agree that the same may be bid off by the public bidder in trust for them. Irvine to furnish half the purchase money, and Barton half. The lands to be conveyed agreeably to the determination of five disinterested citizens, the award of whom, or a' majority of whom, shall be binding upon each claimant — such persons to be selected by the claimants within thirty days; arid if they [293]*293disagree, then the selection to be made by the President of this Association within fifty days, if practicable, from this ate. (Signed) “ JohN K. Irvine.
“ Thomas Barton.
“A. Tange Brown.
“ Benson Place, September 9, 1854.”
Indorsed — “In matter of John B,. Irvine and Thomas Barton.”
To the reception of this paper the Defendants objected on various grounds, which objection being sustained, the paper was rejected, and thereupon the Plaintiff excepted. The Plaintiff then introduced parol evidence of the contents of said agreement, and rested his case, without submitting or offering any evidence whatever as to any other point or issue. Whereupon the Defendants declined offering any evidence on their part, and moved to dismiss on the ground that the facts shown were not sufficient to sustain the action.
The referee thereupon found the facts as hereinbefore stated, together with a finding that each and every allegation of fact contained in the pleadings, on the part of the Plaintiff, except as therein in said report found, are untrue, and, as a conclusion of law arising from said findings, he held that the facts shown were not sufficient to entitle the Plaintiff to maintain his action, and accordingly he entered an order of dismissal.
The Plaintiff appeals to this Court, and insists that the referee erred in his several rulings on the trial, and in the conclusion of law which he drew from the facts found.
And first, as to the rejection of the alleged copy of the agreement of September 9, 1854. The Plaintiff seems to have insisted that there is, and the Defendants to have feared that there might be, an essential difference between the contract as it is alleged in the answer and as it is admitted in the reply, and the contract as it appears from the alleged copy. What the several differences and distinctions may be were not made manifest on the argument, nor have we since been able to discover any that are at all important to the determination of this case. There are it is true slight verbal differences, but in our'1 opinion the object, sense and meaning are the same in all. In the alleged copy, it is stated in terms that [294]*294tbe l'and may be bid off by tbe public bidder m trust for them, [tbe Plaintiff and Barton], and bad tbe agreement stopped here, we admit that without explanation, these words might have implied something quite different from tbe trust expressed in tbe contract stated in tbe answer, or that admitted in tbe reply; but the context shows conclusively to our minds that it is limited and restrained in tbe manner stated in tbe answer and reply. We think tbe same contract, in all essential particulars, is stated in each, and that tbe contract is identical with tbe contract found and reported by tbe referee and above recited. We find it difficult to understand why tbe Plaintiff should insist that tbe contract, as contained in the alleged copy, is essentially different from that- alleged in bis reply , because, if bis position be correct, it demonstrates tbe impropriety of admitting tbe copy, without an amendment of bis pleading, however well it might have been authenticated. ¥e cannot, however, view tbe reply in any other light than as admitting tbe making of tbe agreement alleged in tbe answer, but setting up tbe plea of duress as a reason why the same should not prejudice tbe Plaintiffj nor are we able to find any reasonable distinction between tbe contract as stated in tbe alleged copy, and tbe contract as found by tbe referee, nor between either and tbe contract as it is stated in tbe answer or in tbe reply.
If we are right in this view of tbe matter, then tbe first three errors assigned by tbe Plaintiff, wherein he insists that be bad laid tbe proper foundation for tbe introduction of secondary evidence of tbe contract, — that tbe Court erred in rejecting tbe alleged copy, and that tbe witness Nice should have been permitted to answer tbe question, “"Whether be could state from bis own recollection of tbe contract, that tbe paper shown him was a correct copy,” become wholly unimportant. Eor as tbe sole object of tbe copy offered and rejected, and indeed, of all tbe evidence relating thereto, whether received or rejected, was to establish tbe fact that a contract, such as therein stated, bad been entered into, of what possible injury could tbe rejection of such copy or of any evidence relating thereto, bé to tbe Plaintiff, since tbe referee has found, notwithstanding such rejection, that tbe identical contract which [295]*295tbe Plaintiff desired to prove by tbe rejected evidence, bad been made by tbe parties ? Tbe greatest benefit sucb evidence could possibly bave been to tbe Plaintiff, would bave been to convince tbe referee of tbe existence of tbe very contract, wbicb tbe referee finds from other evidence to bave existed between bim and Barton.
It might, therefore, be safely admitted that tbe Plaintiff bad laid tbe proper predicate for tbe introduction of secondary evidence of the contract of September 9,' 1854; that tbe copy offered was properly identified as a copy; and that tbe referee erred in rejecting it; and that be also erred in overruling tbe question propounded to tbe witness Nice; yet sucb errors could not avail tbe Plaintiff here, because be does not appear to bave been injured thereby.
The Plaintiff, in bis fifth point, insists that tbe five citizens referred to in tbe contract of September 9, 1854, were to be selected for no other purpose than to divide tbe lands between bim and Barton, according to tbe share of tbe purchase money furnished by each, and that sucb is tbe fair interpretation of tbe language used. We do not think tbe contract will bear this interpretation. It is not reconcilable with the relative situation of tbe parties at tbe time, nor with tbe object they evidently bad in view in making tbe contract. Each party was making claim to the land, and endeavoring to bring himself within our statute law, which authorizes persons who bave settled upon any of the public lands, upon wbicb a settlement is not prohibited, and bave made certain improvements thereon, to maintain an action for injuries to tbe possession, or to recover tbe possession. Gompj. Stats., 654. How they were to be benefited at the public sale by reason of these improvements, can make no sort of difference. They evidently thought that they acquired rights thereby; The claim of each extended to the whole of the land in dispute. The dispute between them was not as to which particular half, or other part of the land, either should have, nor about a division of any kind or in any manner, but as to which bad tbe better right to have or purchase the whole and each particular part thereof; and it is not likely that, in agreeing to refer their difficulties to others for settlement, they would gravely enter [296]*296into an agreement to refer only a matter not in dispute, and leave the real canse of difference unsettled.
The Plaintiff’s remaining two points are in substance the same, and are to the effect that a trust results to him, frpm having paid the half of the purchase money, in the manner and under the circumstances found by the referee; and that he is therefore entitled to a conveyance of an undivided half of the lands.
This position ignores entirely the agreement of September 9,1854, and assumes .that the presumption of fact, from which, according to numerous decisions in equity, a trust results in favor of a party paying the consideration for the purchase of real estate, cannot be rebutted by evidence, oral or written. But this assumption is not justified. The foundation of the trust resulting from such a state of facts, is the natural presumption, m the absence of rebutting ei/reumstanees, that he who supplies the money, intends the purchase to be for his own benefit, rather than for that of a stranger. 2 BtoryEguify 445. Now, not only does the language in which this doctrine is stated, as above, show that this presumption may be rebutted, but there are numerous decisions in which it has been directly held that it may be. Id., 440, 446; 2 Wend., 465, and notes. So, too, it is held that as the fact from which such trust resulted, could always be proved by parol, so also may it be rebutted by parol evidence. 2 Wend., 465. Such is undoubtedly the established doctrine where such trusts are recognized ; the question generally -becoming a mere question of intent on the part of the person furnishing the considera-tion or purchase money.
Let us then examine this case with a view to ascertaining the real intentions of the parties furnishing the money, with which the land in controversy was purchased. The presumption that the parties intended the land to be purchased for their benefit, in proportion to the amount of the purchase money furnished by each, is repelled not only by the terms of the contract entered into at the time oí furnishing the money, but by all the attending facts and circumstances. Marshall, by the express terms of the contract of September 9, 1854, was to acquire the lands, and hold them in trust, not for the [297]*297benefit of tbe parties equally, or in common, but to convey them to tbe one, or tbe other, or to both, as be might thereafter be directed, by certain persons selected as therein provided, but in no event was be obliged to convey to either, unless directed so to do by tbe persons thus chosen; and as it was neither proved, nor alleged even, that he was ever directed to convey any portion of the lands to the Plaintiff, as every allegation of fact upon which the Plaintiff predicated his claim as against the Defendant Barton, every allegation of fraud or duress, by which he seeks to avoid the making and signing of said agreement, has been found by the referee to be untrue, it is difficult to see what right he has to the conveyance he demands, or indeed to any conveyance.
' It was insisted on the argument, although I do not find it among the points submitted, that this agreement was but a submission to arbitration, and was void, because it did not conform to the statute; that the Plaintiff had a right to, and did abandon the arbitration or submission, before any award was made. Counsel seemed to have overlooked the fact, that if this had been a statutory submission, it could not have been revoked; and that the referee by his general finding, found this allegation of abandonment untrue. But suppose it should be admitted that this agreement of submission could not have been enforced because it did not conform to the statute, and also that the Plaintiff had a right to and did repudiate it, does it follow that under such circumstances he could rightfully demand more than to be reinstated in his rights, as they existed at the time the agreement was entered into? The facts connected with this case fully satisfy us, that the purchase money would not have thus been furnished by the Plaintiff and Barton; that Marshall would not have so received it, and that he would not have made the purchase for the benefit, in any manner of the Plaintiff, or Barton, had it not been for the stipulation that the lands should thereafter be conveyed, according to the direction of disinterested men. This last was the main object of the agreement, and the moving and sole consideration or cause of the other stipulations. The agreement must therefore be considered as an entirety, including the furnishing and receiving of the purchase money [298]*298and the purchase for the particular purpose specified therein, as well as the stipulation that the title should be disposed of as certain third persons should direct; and the Plaintiff should not be allowed to repudiate the agreement as to part, and claim any benefit of the remainder. He cannot repudiate the submission without also repudiating the purchase, which would leave him with a claim to the purchase money only, for he cannot throw himself upon his rights as they existed prior to the maldng of this agreement, because every allega: tion on which he based those rights is found by the referee to be untrue.
Rut while that portion of the agreement referring to submission may not be considered as a valid agreement to submit to arbitration under the statute, we think it is certainly good as a declaration of the trust upon which Marshall received the money and made the purchase, and that, until it is shown that that trust has been violated, no action can be maintained against him.
There is however another question iuvolved in this case, and that is whether the statute of this State which declares that “where a grant for a valuable consideration is made to one person, and the consideration therefor is paid by another, no use or trust shall result in favor of the person making the payment,” is applicable to sales of or transactions concerning the public lands, or to the present case; for if the statute does apply, there is an end to this action.
This question has already been before the Supreme 'Court, of the United States in this very case, upon a demurrer to the complaint; and it was there decided that the statute could not apply. Irvine vs. Marshall and Barton, 20 How., 558. Ordinarily we would regard such a decision as absolutely settling the question, and so we must consider it so far as this case is concerned ; but there are many reasons why we should :not be willing to follow it in other cases, until it is reaffirmed by another decision:
1st. This Court in Wentworth vs. Wentworth, 2 Minn., 277, for reasons then and still satisfactory to us, held substantially that the statute did apply to the case, of a purchase of the public lands in this State.
2d, The decision in 20 Bowa/rd was the decision of a bare [299]*299majority of the Court; three of the members agreeing with Justice Nelson in a dissenting opinion, which seems to us unanswerable.
3d. It is believed that the Court, as at present constituted, would now take a different view of the question.
4th. The opinion of the majority is suggestive of doctrines, and seems based upon grounds which are subversive of State sovereignty.
We do not propose to defend the system of practice which has been adopted in this State, and for which we have been arraigned in the opinion referred to. It is believed our Legislature is the sole judge of that matter; at any rate,, that body still continues, notwithstanding said opinion, to exercise the right to regulate the practice in our courts. Nor are we called upon to maintain the propriety of the statute, which, except in certain cases, abolishes resulting trusts. We may safely leave the discussion of that matter to the dissenting opinion of Justice Nelson, who, as we think, fully vindicates the wisdom of such a policy. ‘ It is our misfortune, also, that we cannot see clearly any distinction between the legislative powers of a Territory and those of a State, justifying the conclusions to which the Court arrived in the case referred to. And notwithstanding the reminder that the Territory which had dared to enact the statute under consideration was but “inferior and subordinate,” and. the assertion that it was “ itself the property of the United States,” we are still of the opinion that a Territory has quite as much legislative authority over the subject as a State would have.
The Court, however, adopted as asserting the true principle, the language of the opinion delivered by the same tribunal in the case of Wilcox vs. Jackson, 13 Pet., 498, wherein it is declared, “ that whenever the question in any Court, State or Federal, is whether a title to land which was once the property of the United States has passed, that question must be resolved by the laws of the United States; but that whenever, according to those law's, the title shall have passed, then the property, like all other property in the State, is subject to State legislation, so far as that legislation is consistent with the admission that the title passed and vested .according to the laws of the United States.”
[300]*300It is not to be understood by this language tliat so long as the title is not perfected by a patent, the property and all contracts concerning it are to be governed exclusively by the laws of tbe United States; for if that were the case, the State, having no control over the issuing of the patent, might never acquire jurisdiction, although the general government may, to all intents and purposes, have disposed of the soil, and enjoyed the proceeds. We interpret it as asserting only, that the mere question of whether the United States has parted with its title must be determined by the laws of the United States only; and that the title having once passed, the general government has no further control.
This is undoubtedly correct, and goes quite far enough to protect the Federal Government, in its proprietary interest in the public lands within a State ; which is all that is sought to be accomplished by the compacts made with the several States in which these lands lie. But it is unnecessary to go any further. Once the government divests itself of the title, it has no further interest in the matter; and what shall become of it thereafter, or who is really entitled to the fee thus transferred, should be determined by the State laws only.
Still, as it is not made a question in this case, whether the title, or any interest whatever has passed from the United States to Marshall, the purchaser, it is somewhat surprising that the case of Wilcox vs. Jackson, should have been referred to as conclusively settling that the rights of the parties are to be determined by the laws of the United States only. Indeed there is nothing to indicate that the title had not passed at the commencement of the action. But admitting that such was not the fact, the Defendants do not ask to interfere in the least with the giving of the title to the purchaser, nor to restrain the officers of the government from conveying to the alleged cestui que trust, instead of the trustee. They are content with things as they are, and insist on nothing which is not in affirmance of the purchase by Marshall, who is the only person known to the government, — who is not known however as a trustee; nor would the land department undertake to determine whether or not he stood in that relation to any party, if the fact were disputed, but would issue the [301]*301patent to Mm as the purchaser, leaving the parties to determine their respective rights before the proper judicial tribunal. This is understood to be the course uniformly adopted by the land department.
This action however is based upon the assumption that the title, or a valuable interest of some kind passed to Marshall; and it is that interest or estate whatever it is, which the Plaintiff is endeavoring to reach. But if no interest passed, then the action is premature, for there, is nothing to be reached by it — nothing to which the particular laws which the Plaintiff invokes can apply. And if we take it for granted that the title has passed, then that primary disposition of the soil which was reserved to the United States has been mace, by the sale to Marshall; and the statute of the Territory, so far from interfering with this disposition, would, if applied, only confirm it, and prevent a disposition to another. Indeed there can be no interference unless the Plaintiff be permitted to maintain his action.
The-judgment below is affirmed.