By the Court,

We regret to be obliged to hold, that upon the facts stated by the the complainant in his bill of complaint, he is not entitled to any relief.

*209It appears by the bill that the complainant and Andrew Wood and Robert S. Wood agreed to build a saw mill at the Falls of Black River, and in connection therewith to make such other improvements as should be necessary to work the mill and improve the water power at the Falls; that after making certain improvements, as partners and joint owners, difficulties arose between them, which were finally settled by the sale of the improvements to the complainant by the Woods. This sale was evidenced by a deed from the latter to the former, in which the grantors state that they have “remised, released, and forever quit-claimed to the said Spaulding, all our right, title, interest, claim and demand, both in law and in equity, in and to the claims to the United States lands, mill seat, mills, situated upon the Falls of Black river.” The bill of complaint states as a reason why a more specific description of the premises was not given in the deed, was that the land was not then surveyed. The bill further states, that immediately upon the delivery of the deed to the complainant, the Woods yielded the possession of the property and premises, and from that time to the time of filing the bill, the complainant had the possession and absolute control of the property. The bill further states that from the time the Woods went to the Falls of the Black river to make improvements, they claimed and possessed, as partners, jointly, the premises and property on both sides of the river, until the delivery of the possession to the complainant. The bill further states, that before the day appointed for the sale of the land, Andrew Wood repaired to the land office at Mineral Point, and entered the land in dispute, by virtue of a pretended pre-emption right, and obtained a patent for the same, in fraud of the rights of the complainant. These are all the allegations of the bill which we deem it necessary to recite. It has not been without a laborious struggle to prevent such a result, that we have been compelled to arrive at the *210conclusion that the complainant has no interest in the premises in question, which a court of equity can protect. It appears by the bill that the complainant and the Woods went into the possession of these premises jointly, as partners. Neither of them, therefore, could have a right of pre-emption.

In order to obtain a pre-emption, it was necessary for the applicant to swear, among other things, that he entered upon the land in good faith, to appropriate it to his own exclusive use and benefit, (Acts of Cong., Sept. 4th, 1841; id., June 22d, 1838.) Now according to the allegations of the bill of complainant, the complainant went upon and improved the land jointly with the Woods, and for the joint interest of all. If, therefore, Andrew Wood should be estopped to set up any right to the land, acquired by his patent, the complainant has not shown himself to be entitled to any. He could not have obtained a title to the land by pre-emption, except by committing perjury. All that he has lost by the fraud of Wood, is the right to bid for the land at public sale — a right common to all the world.

We are, therefore, obliged to hold that the case made by bill is not such as entitles the complainant to any relief. The decree of the court below must be reversed, and the case remanded for further proceedings.

Dissenting. Having been of counsel for one of the parties in this cause, while it was pending in the circuit court, I felt a great reluctance at participating at all in the hearing and determination of the case in this court, notwithstanding the stipulation filed by the parties, '¡consenting that I should do so. For while I honestly endeavored, in the consideration of the cause, to divest my mind of all pre-conceived views, as to the merits of the case, and the rights and obligations of the parties to this suit, I was continually sensible how difficult it was to do this; and I now greatly fear, that *211owing to the above circumstance, I may not have examined the various questions involved in the cause, with that free, unbiased judgment, so essential, at all times, in arriving at correct and satisfactory conclusions. And I now feel the embarrassments of my situation the more keenly as I have the misfortune to differ somewhat from some views expressed by my brethren in the opinion delivered by the Chief Justice. But without intending to combat those views, or to fortify and sustain my own by any argument, I deem it proper to state wherein I think the decree of the circuit court erroneous, and the ground upon which I think it ought to be reversed.

In my judgment, that decree is erroneous, in not providing that Spaulding should pay the Appellant, Andrew Wood, the money the latter expended in entering the land, which was decreed by the circuit court to belong in equity to the complainant. It appears to me to be perfectly equitable and right to require Spaulding to pay the amount of the entrace money to Wood, and the decree should have so directed as a condition of the latter’s conveying the title acquired hy him under his patent to the appellee. It may be said, that since Wood entered the land in fraud upon the laws of Congress relating to pre-emption rights, and by committing perjury, in taking the affidavits required by those laws, that a court of equity, should not even give him the entrance money thus paid by him to acquire this land. Whatever weight there may be in such a view of the case, I do not think it sufficient answer to the objection I have taken to the decree.

I remark further, in explanation of the view I have taken of this cause, that the whole evidence shows most satisfactorily to my mind, that the complainant, Spaulding, and the Woods went into the possession of the premises in dispute as partners, while the lands were unsurveyed and belonged to the government of the United States; and I therefore fully agree with my brethren (as I understand them) in holding *212that this possession was for the joint interest of all, and that neither of the parties, without swearing falsely, and committing a gross fraud upon the pre-emption law, could enter the land as a pre-emptor. As neither of the parties under such a joint possession, was entitled to a pre-emption right upon the land; so I consider it unreasonable to suppose that the parties intended or attempted to purchase, sell and convey such a pre-emption right in the deed given by the Woods to Spaulding. The question very naturally arises, what was intended, and what, in fact, was sold and conveyed by the parties to this deed? Was it the mere right to bid, to the exclusion of the grantors, for the land, at public sale, when it came into market ? — a right so intangible, so unsubstantial as not to be the subject of bargain and sale, and which a court of equity cannot protect and secure ? Without entering at all into a discussion of these questions, I shall content myself in stating that it seems to me something more was intended to be sold, and in fact was sold, than this right to bid for this land at the public sale. It is very obvious that Spaulding would not have agreed to pay, and would not have paid such a consideration as he has given for the mere right to bid off this land, to the exclusion of the Woods, or either of them. By the deed, the grantees, for a full, adequate and valuable consideration, remised, released and forever quit-claimed to the grantee all of their right, title, interest, claim and demand, both in law and equity, in and to the claims to the United States lands, mill seat, mills, situated upon the Falls of Black river, &c., “ to have and to hold the same and every part thereof, unto him, the said Jacob Spaulding, his heirs, executors, administrators, or assigns forever, free and clear from all claim and demand of us, or either of us,” &c„ From this language, it is very evident that the grantors intended to convey unto their grantee whatever title they might have by virtue of their possession of the land, together *213with all their interests in the water power and improvements made thereon, whatever those interests might be. And although it may be difficult to define and accurately determine what interest a settler may have in his possession and improvements upon public lands, made before such lands are surveyed and come into market, even when such possession cannot be the foundation of a pre-emption right, yet it seems to me when such possession is made in good faith, with the intention of buying the land when it comes into market, that it is encouraged by the whole policy of the laws of Congress relating to the settlement and sale of the government lands, and that those laws imply that a real beneficial interest may exist in such claims which (as it appears to me,) the court in the case of Thredgill vs. Pintard, 12 How., 24, must have recognized and sustained. Confessedly this is a hard case, one in which a u court will go to the very extreme of equity,” to prevent the perpetration of great wrong on the part of the appellant Wood. As already observed for a good and valuable consideration, (a great part of which the testimony shows he has received,) the appellant sold and conveyed to the appellee his interest and possession in certain claims and improvements upon lands belonging to the United States, and gave a deed containing the covenant before cited from the deed. In the very teeth of this deed and its conditions, in fraud of the rights of the appellee, before the land came into market, he repaired to the land office, entered the land by virtue of a pretended pre-emption right, and committed perjury in so doing, obtained his patent, and now attempts to consummate his fraud by recovering possession of the premises in an action of ejectment, upon the strength of his title acquired under his patent. I think a court of equity should say not only that he is estopped from setting up any title under his patent thus obtained, but that he shall not use the courts of justice to go one step further in fraud.