Baldwin, J. concurring.

The Act of Congress of March 3d, 1851, “ to ascertain and settle the private land claims in the State of California,” in its eighth *269section, requires every person “ claiming lands in California by virtue of any right or title derived from the Spanish or Mexican Government,” to present the same to the Board of Land Commissioners, together with such documentary evidence and testimony of witnesses as the claimant may rely upon in support of his claim; and makes it the duty of the Commissioners, when the case is ready for hearing, to proceed promptly to examine the same and to decide upon the validity of the claim. And the same act, in its thirteenth section, declares thall “ all lands,” the claims to which shall not have been presented to the Commissioners within two years after its date, “ shall be deemed, held and considered as part of the public domain of the United States.”

In the opinion in the Fremont case, (17 How. 553) Mr. Chief Justice Taney cites the eighth section, and after observing that it embraces not only inchoate or equitable titles, but legal titles also, and requires them all to undergo examination, says: “ The object of the provision appears to be, to place the titles to land in California upon a stable foundation, and to give the parties who possess them an opportunity of placing them on the records of the country in a manner and form that will prevent future controversy.” And in the Fossatt case, (21 How. 447) Mr. Justice Campbell, in speaking of claims which, under the eighth section, are required to be presented, observes that “ it will be at once understood that these comprehend all private claims to land;” and referring to the Act of March 3d, 1851, and the Act of August 31st, 1852, (relating to appeals from the decisions of the Commissioners) says: “ These Acts of Congress do not create a voluntary jurisdiction that the claimant may seek or decline. All claims to land that are withheld from the Board of Commissioners during the legal term for presentation, are treated as nonexistent, and the land as belonging to the public domain.”

Whatever doubts may exist as to the validity of the legislation of Congress, so far as it requires the presentation to the Board of claims where the lands are held by perfect titles acquired under the former Government, there can be none as to the validity of the requirement with respect' to claims where the lands are held by imperfect or merely equitable titles. (Strother v. Lucas, 12 Pet. *270448; Mall v. Doe ex dem. Moot, 19 Ala. 392.) Of the latter class is the claim of the plaintiffs under the grant to Francisco Estrada. That grant is one in colonization in the usual form, subject to the approval of the Departmental Assembly, and requiring juridical possession from the magistrate of the vicinage. It is a grant of quantity and not of a specific tract; it is for two square leagues situated within exterior limits admitted to embrace a much greater amount. It passed, therefore, only an interest in the specified quantity, to be afterwards measured and laid off by official authority. Until thus measured and segregated, the interest of the grantee attached to no definite portion of the general tract. The right to make this measurement and segregation remained with the Government and could not be exercised by the grantee, at least so as to bind the Government. Upon the cession of the country, that right passed with all other public rights to the United States. (Fremont v. United States, 17 How. 545, and Waterman v. Smith, 13 Cal. 411.) With the possession of the right the duty arose of exercising it for the protection of the interest of the grantee, as Mexico would have exercised it, had her jurisdiction and dominion over the country never been superseded. That interest constituted property, and as such, the Government of the United States upon the acquisition of the country became under obligation to protect it, both by the law of nations, and the stipulations of the treaty of Guadalupe Hidalgo. The obligation was political in its character, and as a consequence, could be discharged at such times and upon such terms as the Government in its judgment might deem expedient. (See Teschemacher v. Thompson, 18 Cal. 12.)

The exercise of the right of measurement and segregation was not only a duty to the grantee ; it was necessary to enable the Government to ascertain the extent of the property it had acquired by the cession of the country; to separate the public lands from those which were private property. And to accomplish both purposes, to enable the Government to execute its treaty obligations; and to enable it to ascertain what were public lands, the Act of March 3d, 1851, was passed. By that act, the Government has announced the conditions upon which it will discharge its political duties to Mexican grantees, and at the same time separate and distinguish *271their rights from the public property. It has there required all claims to lands to be presented within two years from the date of the act, and declared in effect, that if, upon such presentation, they are found by the tribunal established for their investigation, and by the Courts, on appeal, to be valid, it will take such action as will result in rendering them perfect titles. But it has also declared in effect, by the same act, that if claims constituting only interests in land requiring measurement and segregation from the public domain be not thus presented, it will take no action for their protection, and the claims will be considered and treated as abandoned. Legislation of this character is not subject to any constitutional objection. The Government must take some steps to determine the extent of its own possessions, and for that purpose may require the presentation of claims which are asserted by individuals, and as a consequence, may prescribe the penalty of nonpresentation. And as to the political obligations assumed by the treaty, it must determine for itself—for no other power can determine for it or control its action in that respect—the mode and manner in which they shall be discharged. The legislation of Congress with reference to these land claims is analogous, to use the language of the Supreme Court of the United States in Strother v. Lucas, (12 Pet. 448) “ to acts of limitations for recording deeds, or giving effect to the awards of Commissioners for settling claims to land under the laws of the States; the time and manner of their operation, and the exceptions to them depend on the sound discretion of the Legislature, the situation of the country, and the emergency which calls for their enactment. Reasons of sound policy have led to the general adoption of laws of both descriptions, and their validity cannot be questioned.”

The claim of the plaintiffs under the grant to Estrada was never presented to the Commissioners under the Act of Congress. It must, therefore, be considered, according to the views we have expressed, as having been abandoned. Like a demand barred by the Statute of Limitations, it has no standing in Court, whatever may have been its original validity. By the Courts it must be treated as nonexistent. The land, therefore, so far as the plaintiffs are concerned, must be deemed to be a part of the public domain of the United States.

*272But, it is said, that the consequences of nonpresentation prescribed by the Act of Congress cannot follow with reference to the claim of the plaintiffs, inasmuch as the validity of the grant has been confirmed under a claim presented by the defendant, Murphy; and that the United States have thus declared that the land is private property and not a part of the public domain. We do not think the conclusion follows from the confirmation to Murphy. The land may be treated as private, so far as his claim is concerned, and yet be treated as public with respect to the claim of the plaintiffs. We do not understand the language of the act as declaring that, whenever a claim under a grant is not presented, the land shall be deemed absolutely a part of the public domain; but that it shall be thus treated so far as any right of the particular claimant is concerned. Other-parties may have asserted successfully claims to the same land, with reference to whom it would, of course, be held as private property. The confirmation under the act operates to the benefit of the confirmee, and parties claiming under him, so far as the legal title to the premises is concerned. It establishes the legal title in the confirmee, and this must control in the action of ejectment. If the confirmee, in presenting his claim, acted as agent, or trustee, or guardian, or in any other fiduciary capacity, a Court of equity, upon a proper proceeding, will compel a transfer of the legal title to the principal, cestui que trust, ward, or other party equitably entitled to the same, or subject it to the proper trusts in the confirmee’s hands. It matters not whether the presentation were made by the confirmee in his own name in good faith, or with intent to defraud the actual owner of the claim; a Court of equity will control the legal title in his hands so as to protect the just rights of others. But in ejectment, the legal title must control. Nor does this view of the effect of the legal title conflict with the doctrine that an equitable defense may, under our system, be set up as a bar to the ejectment. The answer presenting such a defense is in the nature of a bill in equity, and must contain its essential averments. The defendant then becomes an actor with respect to the matter alleged by him, and his defense must be of such a character as may be ripened by the decree of the Court into a legal right to the premises, or as will estop the prosecution of the *273action of the plaintiff. The equitable defense is, therefore, first to be passed upon by the Court, and until it is disposed of the assertion of the legal remedy is in effect stayed. Upon the determination of the Court upon the relief prayed by the answer, the necessity of proceeding with the action at law will depend. When it does proceed, the legal title will control its result. (Arguello v. Edinger, 10 Cal. 160; Weber v. Marshall, decided at the present term.)

The views we have thus expressed render it unnecessary to pass upon the effect of the residuary devise in the will of José Mariano Estrada.

Judgment affirmed.

Cope, J. concurring.

Ejectment for certain lands, part of the rancho “ Pastoria de las Borregas.” We are indebted to the counsel for a very learned and able discussion of the principles of law governing this case.

The plaintiffs claim through the devisee of one José Mariano Estrada, the father and heir of Francisco Estrada, who -was the grantee of a Mexican grant made on the fifteenth of January, 1842. The grant is in the usual form, but there was no approval by the Departmental Assembly, and no juridical possession. The clause of the will in question, under which Santiago claimed, is a residuary devise at the conclusion of the will in these words: “ The remainder of my property will remain to the family of my son Santiago.” The defendant, Murphy, claims by a confirmation and approved survey of land, under proceedings before the Land Commission taken by him. Eo claim was ever presented to the Board by the plaintiffs. They contend that they have a legal title, founded on the grant, and that the failure to present it did not affect their rights; but that they can sue the confirmee in possession as they might sue any other trespasser or adverse claimant holding under an inferior title. We do not think so. The mere grant by the Governor, unaccompanied by juridical possession, was not a perfect legal title. The act of the Government in confirming the claim of Murphy, the adverse claimant, followed by the approved survey, invested him with the legal title to the premises, and the plaintiffs *274cannot, in an action of law, nullify the confirmation or dispossess him of the land held under it and the approved survey, and to the possession of which he is remitted by the Government. It would lead to infinite confusion if this were not so, and leave titles not only to the public lands, but to private lands, exposed to great uncertainty. The Government had a right to consider this land subject to its dominion for the purposes of the Act of 1851. That Act declares that lands, as to which no claims are presented to the Board, shall be considered public lands of the United States; and the Government might well suppose that, when the present plaintiffs failed to make presentation of their claim, and the adverse claimant presented a claim to the land apparently entitling him to a confirmation, the latter was the party entitled. The Government has proceeded to mark and define the boundaries and segregate the land; and if we were to hold that all this action of the Government is void, the effect would be to open again all the questions as to boundary, etc., and leave the adjacent lands in dispute between the Government or its grantees and the claimants of the equitable title, who, by their own laches, failed -to urge their claim and secure their rights in the premises. In Castro v. Hendricks (28 How. 441) it is said that, to accomplish the purposes of the Act of 1851, “ every person claiming lands in California, by virtue of any right or title derived from the Spanish or Mexican Government, was required to present the same to a Board of Commissioners. The mesne conveyances were also required, but not for any aim of submitting their operation and validity to the Board, but simply to enable the Board to determine if there was a bona fide claimant before it under a Mexican grant; and so this Court has repeatedly decided that the Government had no interest in the contests between persons claiming ex post facto the grant.” It would seem to follow, from these and not less decisive intimations in other cases in the Supreme Court of the United States, that the mere fact that a particular person obtained a patent from the Government was not conclusive of his exclusive right; but that it might be shown, in a proper proceeding, that others were interested or had the better right. However this may be, and whatever the limitations and qualifications to the principle, if it be correct, w'e have no hesitation *275in holding that the holder or assignee of a grant issued by a California Governor without approval by the Departmental Assembly or juridical possession, cannot recover, in an ordinary action of ejectment, against the confirmee of the Federal Government having an approved survey. We are thus cautious in limiting this decision, because of the great importance of these questions; and we are unwilling, under present circumstances, to decide anything that is not absolutely necessary to the disposition of the case made by the record.

It is unnecessary to pass upon the character or quality of the title of Santiago under the devise recited.

Judgment affirmed.