A motion to dismiss was submitted by the defendant in error, but as the supreme court of the state held that the equitable title apparently conveyed by the proceedings in the United States land office in 1858 was of no effect, and the tax titles based thereon of no validity, it is apparent that a right claimed under the authority of the United States was denied, and therefore this court has jurisdiction.
On the merits of the case, we remark that while it is undoubtedly true that when the full equitable title has passed from the government, even prior to the issue of a patent conveying the legal title, the land is subject to state taxation (Carroll v. Safford, 3 How, 441; Witherspoon v. Duncan, 4 Wall. 210), yet until such equitable title has passed, and while the land is still subject to the contol of the government, it is beyond the reach of the state's power to tax (Railway Co. v. Prescott, 16 Wall. 603; Railway Co. v. McShane, 22 Wall. 444; Tucker v. Ferguson, 22 Wall. 527, 572; Colorado Co. v. Commissioners, 95 U.S. 259). Therefore the validity of the tax titles held by plaintiff in error depends upon the question whether the equitable title to the land had passed from the government to Craig.
We remark, in the second place, that, under such a tax law as exists in Iowa, there is no privity between the holder of the fee and one who claims a tax title upon the land. The latter title is not derived from, but in antagonism to, the former. The holder of the latter is not a privy in estate with the holder of the former. Neither owes any duty to the other, nor is estopped from making any claim as against the other. Hefner v. Insurance Co., 123 U.S. 747, 751, 8 Sup. Ct. 337; Turner v. Smith, 14 Wall. 553; Crum v. Cotting, 22 Iowa, 441; Burroughs, Tax'n, 346.
Neither can it be said that on the issue of a patent the title by relation always dates of the time when the certificate of location was issued. A title by relation extends no further backward than to the inception of the equitable right. If no equitable right passed by the surrender of the land warrant and the certificate of location in 1858, but only by the payment of the money in 1888, the legal title created by the issue of the patent has no relation back of this later day. In other words, the United States does not part with its rights until it has actually received payment, and if, by mistake, inadvertence, or fraud, a certificate of location (which is equivalent to a receipt) is issued when in fact no consideration has been received, no equitable title is passed thereby; and a conveyance of the legal title does not operate by relation back of the time when the actual consideration is paid. These views have been recognized in Iowa, as elsewhere. Thus, in Reynolds v. Plymouth Co., 55 Iowa, 90, 7 N. W. 468, it appeared that certain forged and counterfeit agricultural college scrip was located upon a tract of land, and that after the issue of the certificate of location, and before any patent, state taxes were assessed and levied thereon. Thereafter the forgery was discovered, the locator substituted genuine scrip or money, and a patent was issued. The court held that the taxes thus assessed and levied during the interval between the original illegal entry and location and the subsequent substitution of genuine scrip or money were invalid, saying: 'In order to protect a title, or to attain the ends of justice, the courts will, under the doctrine of relation, which is a fiction of law, hold that a title began at the date of an entry or location upon the public lands. But this doctrine cannot be invoked to burden the holder of a title, and require him, in violation of justice, to pay taxes when he held neither the equity nor title of the lands.' A similar doctrine was announced in Calder v. Keegan, 30 Wis. 126. See, also, Gibson v. Chouteau, 13 Wall. 92, in which this court, on page 101, said: 'The error of the learned court consisted in overlooking the fact that the doctrine of relation is a fiction of law adopted by the courts solely for the purposes of justice, and is only applied for the security and protection of persons who stand in some privity with the party that initiated proceedings for the land, and acquired the equitable claim or right to the title. The defendants in this case were strangers to that party and to his equitable claim, or 'equitable title,' as it is termed, not connecting themselves with it by any valid transfer from the original or any subsequent holder.'