Wells, J.
1. The patent, which was admitted on the part, of plaintiff below, afforded at least presumptive evidence of its own regularity. Whether the requirements of the act of congress had or had not been complied with, was in the first instance a question for the land officers, and must be taken to have been properly resolved. Bagnell v. Broderick, 13 Peters, 450; Winfield Town Co. v. Maris, 11 Kan. 148.
2. If the legal estate in the premises still remained in Altman after the expiration of his official term, his convey[195]*195anee would entitle the grantee to maintain ejectment. 1 Perry on Trusts, § 328.
If such conveyance were in violation of the duties of the trust, the grantee would, of course, hold as trustee for the one entitled under the act of congress; but in courts of law the legal estate only is regarded; and a mere equity cannot be set up to bar an ejectment by the holder of the legal estate. This doctrine has been applied to trust estates of the peculiar character of the one now under consideration. In Clayton v. Spencer, 2 Col. 378, the probate judge of Arapahoe county, holding the legal estate in the Denver town-site, had conveyed certain lots in violation of the trust, and the grantee brought ejectment against one in possession who had succeeded to the rights of the occupant at the sale of the entry.
On bill brought, the ejectment was restrained, and the plaintiff at law was decreed to release to the defendant; which is in effect to say : 1st. That the conveyance of the probate judge, though in violation of his duty, passed the legal estate ; for if not, the decree must have directed a cancellation of that conveyance, and a re-conveyance by the trustee to the party entitled; and, 2d. That the first conveyance, though in violation of the trust, was unimpeachable at law; for otherwise, equity could not have entertained jurisdiction. Cook v. Rice, 2 Col. 131, and Coy v. Coy, 15 Minn. 120, countenance the same doctrine. The circumstance that Altman did not assume to execute the conveyance in question in any official capacity is not material. If the estate did not pass to his successor in office, it remained in Altman, the individual, and his conveyance in his private capacity may transfer it effectually for the purposes ot the present action.
3. The limitation in the letters patent to the successors of the grantee named can have effect only so far as it accords with the act of congress.
But the purpose of this statute was to supply a defect in the pre-emption laws, and to confer upon the settler upon town lands, by means of different agencies, the same privi[196]*196lege which had been before extended to the settler upon agricultural lands, i. e., the right of pre-emption in fee. This it is supposed will not be questioned.
We must, therefore, imply in the trustee a freehold of in, heritance, notwithstanding the omission of words of succes, sion from the statute, for this is necessary to the accomplishment of the trust. 1 Perry on Trusts, § 315; 1 Washburn on Real Estate, 57*. The estate vested, therefore, either in Altman the individual, and remained in him after his office expired, and is limited to his heirs at his death, or else it vested in the probate judge, and not in the individual, and at the expiration of Altman’s incumbency, those who succeeded him in the office succeeded also to the trust estate and powers.
Now considering the probability, or as one may say, the certainty that the public and official character of the trustee named in the statute induced the nomination of that officer in the first instance, and that if the trust estate be deemed? to be limited to the successor, those in interest have the assurance which the same public, official, and respectable character affords of the intelligent and faithful administration of the trust, while if it be held to remain in the incumbent at the date of entry after the expiration of his office, it must inevitably descend to the heir; whereby it may happen that the responsible duties and powers of the trust may devolve upon an infant, a non-resident or convicted felon, it cannot be doubted that the purpose of the statute is to confer the estate upon the county judge or the corporate authorities in their official and politic capacity, and to limit it to the successor in office until the trust should be finally exhausted. Nor does any technical difficulty arise from the circumstance that the county judge, or municipal authority, is not, for all purposes, a corporation, even if this be admitted. The legislative will is not to be frustrated by the application of the technical rules which govern private grants. Rutherford v. Greene, 2 Wheat. 196. The grant of the sovereign confers upon the donee capacity to [197]*197take according to the purpose, and to the extent intended ; e. g.: grant in fee by legislative authority capacitates the heir of the grantee to inherit, though he be an alien, Goodell v. Jackson, 20 Johns. 693; and the like grant to a slave enables him to both accept the estate, and transmit it to his heirs, though these be also under the disability commonly annexed to the condition of servitude. Jackson v. Lewey, 5 Cow. 401.
In like manner it is said to have been decided, that legislative authority to the justices of a particular court, to take bonds to themselves, in their official capacity, confers upon them, quoad hoc, a corporate character. Justices of Cumberland v. Armstrong, 3 Dev. 284; and to this effect is Polk, Governor, v. Plummer, 2 Humph. 507.
1ST either will the circumstance that by the death or removal from office of the incumbent during his term, a vacancy may occur, whereby the fee will be in abeyance, ‘breed difficulty, for it seems that the designation of the incumbent by his proper name in the letters patent, as in the ■present case, is unwarranted by the statute, and may be rejected as mere surplusage. Thus, it was held in the Governor v. Allen, 8 Humph. 182, that a bond required by statute, to be taken to the governor, sufficiently designated the obligee, as “the governor in and over the State,” etc., and that in an action thereon, the office, and not the incumbent, was the plaintiff; and as to the point of pleading this is supported by Merritt v. The Governor, 4 Yerg. 489; so in Polk, Governor, v. Plummer, it was held, in respect to a similar bond, that the office is the payee; and to the same effect in Findlay v. Tipton, 4 Hayw. 216; where,- the bond being to “John Sevier, governor,” etc., whereas, in truth, another held the office at the date of the sealing, it was held that the name of the individual was surplusage, and might be rejected. And so, at common law it is said, “ a bishop may take by the name of bishop, without any other name,” Shep. T. 237; and though the proper name be mistaken, as a grant to George, bishop of 1ST., where his [198]*198name is John; or the grant be to the mayor and commonalty, or a dean, and chapter; and mayor or dean is not named by his proper name, all these and such like grants are good. Id. 236.
And even if we reject these authorities ; if we say that the estate is not in the office, but in the incumbent so long as he holds the office, so that in case of vacancy the fee
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Wells, J.
1. The patent, which was admitted on the part, of plaintiff below, afforded at least presumptive evidence of its own regularity. Whether the requirements of the act of congress had or had not been complied with, was in the first instance a question for the land officers, and must be taken to have been properly resolved. Bagnell v. Broderick, 13 Peters, 450; Winfield Town Co. v. Maris, 11 Kan. 148.
2. If the legal estate in the premises still remained in Altman after the expiration of his official term, his convey[195]*195anee would entitle the grantee to maintain ejectment. 1 Perry on Trusts, § 328.
If such conveyance were in violation of the duties of the trust, the grantee would, of course, hold as trustee for the one entitled under the act of congress; but in courts of law the legal estate only is regarded; and a mere equity cannot be set up to bar an ejectment by the holder of the legal estate. This doctrine has been applied to trust estates of the peculiar character of the one now under consideration. In Clayton v. Spencer, 2 Col. 378, the probate judge of Arapahoe county, holding the legal estate in the Denver town-site, had conveyed certain lots in violation of the trust, and the grantee brought ejectment against one in possession who had succeeded to the rights of the occupant at the sale of the entry.
On bill brought, the ejectment was restrained, and the plaintiff at law was decreed to release to the defendant; which is in effect to say : 1st. That the conveyance of the probate judge, though in violation of his duty, passed the legal estate ; for if not, the decree must have directed a cancellation of that conveyance, and a re-conveyance by the trustee to the party entitled; and, 2d. That the first conveyance, though in violation of the trust, was unimpeachable at law; for otherwise, equity could not have entertained jurisdiction. Cook v. Rice, 2 Col. 131, and Coy v. Coy, 15 Minn. 120, countenance the same doctrine. The circumstance that Altman did not assume to execute the conveyance in question in any official capacity is not material. If the estate did not pass to his successor in office, it remained in Altman, the individual, and his conveyance in his private capacity may transfer it effectually for the purposes ot the present action.
3. The limitation in the letters patent to the successors of the grantee named can have effect only so far as it accords with the act of congress.
But the purpose of this statute was to supply a defect in the pre-emption laws, and to confer upon the settler upon town lands, by means of different agencies, the same privi[196]*196lege which had been before extended to the settler upon agricultural lands, i. e., the right of pre-emption in fee. This it is supposed will not be questioned.
We must, therefore, imply in the trustee a freehold of in, heritance, notwithstanding the omission of words of succes, sion from the statute, for this is necessary to the accomplishment of the trust. 1 Perry on Trusts, § 315; 1 Washburn on Real Estate, 57*. The estate vested, therefore, either in Altman the individual, and remained in him after his office expired, and is limited to his heirs at his death, or else it vested in the probate judge, and not in the individual, and at the expiration of Altman’s incumbency, those who succeeded him in the office succeeded also to the trust estate and powers.
Now considering the probability, or as one may say, the certainty that the public and official character of the trustee named in the statute induced the nomination of that officer in the first instance, and that if the trust estate be deemed? to be limited to the successor, those in interest have the assurance which the same public, official, and respectable character affords of the intelligent and faithful administration of the trust, while if it be held to remain in the incumbent at the date of entry after the expiration of his office, it must inevitably descend to the heir; whereby it may happen that the responsible duties and powers of the trust may devolve upon an infant, a non-resident or convicted felon, it cannot be doubted that the purpose of the statute is to confer the estate upon the county judge or the corporate authorities in their official and politic capacity, and to limit it to the successor in office until the trust should be finally exhausted. Nor does any technical difficulty arise from the circumstance that the county judge, or municipal authority, is not, for all purposes, a corporation, even if this be admitted. The legislative will is not to be frustrated by the application of the technical rules which govern private grants. Rutherford v. Greene, 2 Wheat. 196. The grant of the sovereign confers upon the donee capacity to [197]*197take according to the purpose, and to the extent intended ; e. g.: grant in fee by legislative authority capacitates the heir of the grantee to inherit, though he be an alien, Goodell v. Jackson, 20 Johns. 693; and the like grant to a slave enables him to both accept the estate, and transmit it to his heirs, though these be also under the disability commonly annexed to the condition of servitude. Jackson v. Lewey, 5 Cow. 401.
In like manner it is said to have been decided, that legislative authority to the justices of a particular court, to take bonds to themselves, in their official capacity, confers upon them, quoad hoc, a corporate character. Justices of Cumberland v. Armstrong, 3 Dev. 284; and to this effect is Polk, Governor, v. Plummer, 2 Humph. 507.
1ST either will the circumstance that by the death or removal from office of the incumbent during his term, a vacancy may occur, whereby the fee will be in abeyance, ‘breed difficulty, for it seems that the designation of the incumbent by his proper name in the letters patent, as in the ■present case, is unwarranted by the statute, and may be rejected as mere surplusage. Thus, it was held in the Governor v. Allen, 8 Humph. 182, that a bond required by statute, to be taken to the governor, sufficiently designated the obligee, as “the governor in and over the State,” etc., and that in an action thereon, the office, and not the incumbent, was the plaintiff; and as to the point of pleading this is supported by Merritt v. The Governor, 4 Yerg. 489; so in Polk, Governor, v. Plummer, it was held, in respect to a similar bond, that the office is the payee; and to the same effect in Findlay v. Tipton, 4 Hayw. 216; where,- the bond being to “John Sevier, governor,” etc., whereas, in truth, another held the office at the date of the sealing, it was held that the name of the individual was surplusage, and might be rejected. And so, at common law it is said, “ a bishop may take by the name of bishop, without any other name,” Shep. T. 237; and though the proper name be mistaken, as a grant to George, bishop of 1ST., where his [198]*198name is John; or the grant be to the mayor and commonalty, or a dean, and chapter; and mayor or dean is not named by his proper name, all these and such like grants are good. Id. 236.
And even if we reject these authorities ; if we say that the estate is not in the office, but in the incumbent so long as he holds the office, so that in case of vacancy the fee will be suspended, still no rule of the common law is violated ; for while the fee cannot be put in abeyance by the act of the party, it may by operation of law, of which the case supposed is an example. 1 Washburn on Real Property, 48*.
In this view of the matter the conveyance of probate judge Mann makes a case for the plaintiff. The recitations of this conveyance sufficiently evidence that the grantor was assuming to act in pursuance of the statute. 2 Perry on Trusts, § 511, c. The resolution implied in it, that the grantee was at the date of the entry the occupant of the premises, is supported by the presumption which attends' the official acts of all officers. Sherry v. Sampson, 11 Kan. 611; and whether in fact error was committed is not to be contested in a court of law
4. The unusual extent of the trustee’s grant, in the present case, is not supposed to afford an exception to the general presumption, which, as we have seen, is indulged to support the acts of the probate judge, in the administration of the trust. Nothing is shown, as to whether the premises were, at the date of the entry, within or without the settled portion of the town site; nor as to their location, with reference to the inhabited portion ; nor as to the number of the inhabitants at the date of the entry; nor the character of the premises granted. All these, and perhaps many other circumstances, must be taken into account, in determining whether, in the particular case, so large a tract can be said to be in several occupancy, within the meaning of the act of congress.
In the silence of the record we cannot assume that the trustee has erred or exceeded his duty; and even if a breach [199]*199of the trust were affirmatively shown, no reason occurs to us, to make an exception to the general rule, and subject the trustee’s conveyance to investigation at law. In any point of view, therefore, the case made by the plaintiff should have been submitted to the jury.
The j udgment of the district court is reversed, and the cause will be remanded for further proceedings, according to law.
Reversed.