delivered the opinion of the court.

It is clear, from the evidence in- this case, that, as against the United States,- either Ortega or Miranda has a just claim to a confirmation of his title to the tract in dispute. But whether Ortega was landlord, and Miranda his tenant, or which of the claimants has attempted to overreach the other, Sre questions in which the Government has no interest. The United States officers are not bound to settle this dispute between these parties in these proceedings. Nor should either party be permitted to carry oil their litigation, by assuming to act for the Government, and thus take the advantage of their opponents,-by fighting under its shield and at its expense. The District Attorney of California had neither interest nor authority to represent Miranda in order to defeat Ortega; nor can this court be thus compelled, on an appeal by the Attorney General, to become the arbiters of disputes in which the Government has no concern.

The patent issued in pursuance of the act of Congress which authorizes these proceedings, is conclusive only between the United States and the claimants. It does not affect the interest of third parties.

The act of Congress (3d March', 1851, section 13) points out the mode in which contesting claimants may litigate their respective rights to a patent from the Government.

Instead of an appeal to this court to settle the rights of Miranda in a proceeding in which he is no party, the claimants under him, if there be any, should proceed iu the mode pointed out by the act, which provides; “That if the title of the claimant to such lands shall be contested by any other person, it shall and may be lawful for such person to present a petition to the district judge of the Uiiited States for the district in which the lands are situated, plainly and distinctly setting forth his title thereto, aud praying the said judge to hear and determine the same; a copy of which petition shall *254 be served upon the adverse party, thirty days before the time appointed for hearing the same.' And it shall and may be lawful for the district judge, upon the hearing of such petition, to grant an injunction to restrain the party at whose instance the claim to the said lands has been confirmed, from suing out a patent for the same until the title thereto shall have been finally decided; a copy of which order shall be transmitted to the Commissioner of the General Land Office; and thereupon no patent shall issue until such decision has be.en made,” &c.

It appears from the record that Valentine, who purchased the title of Miranda at sheriff’s sale, had filed his claim before the board of commissioners for confirmation, and afterwards withdrew his petition. Now, if Miranda or his assignee makes no claim; if he admits the tenancy, and does not allege that Ortega has fraudulently overreached him, the Government surely has no right to claim that the land shall be considered as part of the public domain. It cannot set up Miranda to defeat Ortega, or the contrary, admitting, as it must, that either of them can show a claim worthy of confirmation in the absence of the other. Nor can third persons be admitted to interfere, to. use the claim of one to defeat the other.

If the heirs or assigns of Miranda object to the issuing of. the patent .to Ortega or his assigns, their remedy is clearly pointed Out. They can have their rights tried where the witnesses are- known, where they may. be examined ore terms .before the court, or before a jury, if the court chooses so to order. They have a far better tribunal to settle this question than if they were permitted to appeal" to this cpurt, to guess •out the truth from conflicting depositions.

Now, if this court should enter a judgment affirming that of the District Court, it would appear as if we had decided the title of Ortega to be superior to- that of Miranda, and that Miranda was the tenant of Ortega. This we are unwilling to dp; for, if there be bona fide claimants of the Miranda'title, such a judgment might seem to conclude them. Nor can we reverse the judgment, for this,would imply that we considered Miranda had the better title, and that he or his assignees *255 might be justified in attempting to get the judgment of this court in their favor, in this oblique and irregular manner, under the protection of the Attorney General.

We have concluded, therefore, to remand the record to the District Court, with directions to suspend further proceedings till the heirs or assigns of Juan Miranda, if they see fit so to do, may have an opportunity to contest the claim under Ortega, according to the provisions of the thirteenth section of the act of 3d March, 1851, entitled “An act to ascertain and settle the private laud claims in the State of California,” and have such further proceedings as to justice and right may appertain.

And now, to wit, May 1, 1860, the court having reconsid-. ered the opinion and order before made in this case, do now order and adjudge that the decree of the District Court in favor of the appellees be reversed and set aside, and the record remitted for further proceedings in the case.

We do this that the District Court may not be trammelled in their future consideration of the case on all its merits, but without intimating an opinion as to the validity of the grant to Antonio Ortega. It is due to the Attorney General to say that, on the argument of this case, he challenged this grant as' fraudulent; and it is because we do not think the whole evidence on that point was fully developed on the former trial below, that this order is made.