Cole, C. J.
On the former appeal — 53 Wis., 403 — it was said the answer of the defendant showed strong equities to the land in controversy. The force of that remark was certainly not weakened by anything disclosed in the proofs on the second trial. The facts in the answer were fully established by the evidence, and it would seem almost a reproach upon the administration of justice if such a' meritorious' defense should fail. It is not claimed that the entry of this forty by Davidson, in January, 1856, was in conflict with any Istate land-grant or prior sale. The land was then subject to •entry; it was purchased by him and paid for. There was no fraud or mistake in the transaction; the receiver took the price of the land and gave his receipt therefor. These are facts which cannot be successfully controverted. All the rights and interests which Davidson acquired by this entry became vested in the defendant’s testator, who had been in continuous possession of the premises some years before he died, and had made improvements thereon. It is true, there was included in Davidson’s purchase, and in the receiver’s receipt, another tract of eighty acres which the United States did not •own, but which belonged to the state under the swamp-land grant. But as respects this forty the United States owned it .and sold it for cash - — parted with all its interests in it, except the mere naked legal title, which it held in trust for the purchaser or his assigns. We may well adopt, as regards this forty the language of Mr. Justice McLeaN in Carroll v. Safford, 3 How., 440, 460, and say: “When the land was purchased ,-and paid for it was no longer the property of the United States, but of the purchaser. He held it for a final certificate, which could no more be canceled by the United States than a patent. It is true, if the land had been previously •sold by the United States, or reserved from sale, the certificate or patent might be recalled by the United States, as having been issued through mistake. In this respect there is mo difference between the certificate holder and the patentee.”
*242The learned counsel for the plaintiff insisted there was a distinction between the case where the purchaser obtains the register’s final certificate and where he merely holds the receiver’s receipt. But both instruments stand upon the same footing. The purchaser’s rights are founded on the contract of purchase and payment of money, and the statutes of this state have always given the same effect to both instruments, as evidence of title (sec. 95, ch. 98, R. S. 1849; sec. 103, ch. 137, R. S. 1858; and sec. 4165, R. S. 1878); and there is no earthly reason that we perceive for malting a distinction between them, so far as the rights of the purchaser are concerned. Such being the case, it is clear that the order of the commissioner of the general land office, made October 24, 1857, canceling the entry of this forty, was without authority in law and void. The commissioner had no authority whatever to cancel the entire entry because of a conflict as to one of the tracts embraced therein, without first giving the party in interest the right of election as to whether he desired to retain that forty, and no effect can be given to his order. At most, the cancellation could only affect the tract to which the government, by reason of a prior disposal, could give no title. It is not necessary for the defendant to invoke the aid of Commissioner Williamson’s order, made June 3,1879, reinstating this entry, because the original cancellation was void. The plaintiff’s counsel claims that the commissioner had no jurisdiction to make the order of reinstatement, because the legal title had passed from the government by the patent issued to Puffer. It may be conceded that this position is correct, but still the defendant’s rights, may well rest on the original entry, which vested in Davidson the equitable title, with the right to receive the patent for the land.
The counsel for the plaintiff further insists that the defendant could not in this action have the benefit of the equitable defense set up in the counterclaim. We fail to *243perceive any good reason why she cannot have the benefit of that defense. The subject of the action is the land in controversy. The defendant states facts in the counterclaim which show that the' equitable title to the property has become vested in her during her natural life, with the' right of possession; that the legal title which passed to Puffer by the patent was wrongfully obtained and should have gone to her testator. She asks that the court adjudge the entire title in her testator at his decease; in other words,' that the legal title under the patent may inure to the benefit of the devisees under the will of Jacob Kessel. There is no doubt but that the defendant was entitled to such relief in this case. Simmons v. Ogle, 105 U. S., 271. Perhaps the judgment which was rendered on the equitable issue is equivalent to this. It was adjudged that the entry by and patent to Puffer were null and of no effect as a conveyance of the land; that the defendant’s testator died vested with an equitable estate in the premises, and entitled to the possession thereof, and to a patent therefor from the United States assuring the legal title through the original purchaser, Davidson, to his devisees; that the defendant have and enjoy such interest and estate, with the possession, during her life. If there are any formal defects in this judgment there is nothing of which the plaintiff can complain. He cannot be prejudiced by the cancellation of the patent, because the legal title vested in him by that instrument must, under the circumstances, inure to the benefit of those who have the superior equity and right to it. The court might have adjudged that the legal title be vested in the devisees of Jacob Kessel, subject to the life estate of the defendant.
After the trial of the equitable issue, the plaintiff, by his counsel, demanded a trial by the jury of the legal issue. To this demand the court replied that it did not consider there was anything for a jury to try, and denied it. The plaintiff did not claim or pretend that he had any title to the prem*244ises, except such as he derived through the patent. If he claimed the premises through any other source, it was his duty to disclose his title to the court, so it might see there was something for a jury to try. It was certainly not the duty of the court to submit to a jury the sufficiency of a title founded on the patent, which the court had just adjudged was invalid and could not prevail as against the defendant. There was, therefore, no error on the part of the court in refusing a jury trial of the legal issue on the facts disclosed in the record.
It follows from these views that the judgment of the circuit court must be affirmed.
By the Court.— Judgment affirmed.