Page:Federal Reporter, 1st Series, Volume 8.djvu/408

89e FEDERAL REPORTBB. �for the equity which she asserts. The Gordon entry, No. 32017, was located and surveyed previous to January 1, 1852, and no return thereof with the warrant, or any certified copy thereof, haa ev^r been made to the general land-office. It has therefore lapsed, and no longer subsista, This oonclusion cannot be resisted on the ground that by the entry and survey, when originally made, Archibald Gor- don became vested with an equitable estaie, which congress cannot deprive him of by legislation, for the obvious reason that Gordon's rights were not xestea absolutely, but.only-subject to the conditions prescribed by the statutes under which alone his rights arose; and, having failed to comply with and perform the conditions prescribed as essential to perf ect his estate and title, his inchoate rights have never ripened into an indefeasible title. Neither is there any equity raised by the complainant on the groiind of any alleged fraud by which she or her aneestor was prevented from taking the necessary steps to complete their title by obtaining a patent, and so protecting their interests forever, on the supposition that there was fraud and collusion between Kendrick and Wallace and Gregg, by which Ken- drick was induced to write the word "withdrawn" upon the record of the Gordon entry and survey. There is no ground on which that fraud can be imputed to the defendants in possession, who appear to have been innocent purchasers of the title of Wallace and Gregg, without notice of any such claim. Even if it should be held that the patents of Wallace and Gregg were void, in contravention of the proviso to the act of March, 1823, annulling patents granted for lands which had been previously surveyed for another, still it could not better the position of the complainant by investing her with a legal title held by the United States for ita own use, or reinstating an equity which had lapsed by operation of positive law, or estopping the defendants from insisting that she is not entitled to recover from them their possession without: proof of a paramount title. As to the good faith and innocence of wrong on the part of the defendants in possession, it may he noticed that the counsel for the complainant, in. his written argument, states that Wallace's ingenuity in covering up the location of Gordon, and in his deed, in the sale of it, ostensibly professing to loeate and sell land west of Gordonfs land, and Gregg engrafting his survey upon Wallace's, made it so that no one could, by an examination of the record, determine that either it or Wallace's survey covered Gordon's land. This exonerates the defendants in possession from any charge of fraud and collusion, but does not excuse the laches of the complainant, because no such confusion ��� �