Cope, J. and Norton, J. concurring.

The Court below appears to have treated this action as brought under the statute to quiet the title of the plaintiffs to a tract of land situated in Monterey County, and to have ordered its dismissal on the ground that the plaintiffs were not in possession of the premises at its commencement. Such possession of the plaintiffs was essential to maintain an action of this character. (Prac. Act, sec. 254.) But the defendants contend that the action was brought not merely to quiet the title of the plaintiffs, but also to establish and enforce a trust. The complaint sets forth that a grant of the premises was issued in 1822 to Jose Santiago Estrada, through whom the plaintiffs trace their title; that the defendant David Spence presented a claim for the same premises to the Board of Land Commissioners, alleging that a grant of them was made in 1823 to Jose Mariano Estrada, through whom he deraigns his title ; that the claim was confirmed; that subsequently a patent for the land was issued to him by the United States; that the confirmation was obtained by fraud and false representations; and that the mesne conveyances to him and the patent constitute-a cloud upon the plaintiffs’ title; and concludes with a prayer that the mesne conveyances be set aside, that he be enjoined from making any claim to the premises, and be decreed to convey the same to the plaintiffs, and for general relief.

The answer of the defendant Spence denies all the allegations of the complaint which affect his rights to the premises in controversy, and sets up several special defenses which it is not material to notice.

The evidence shows that the grant to Jose Santiago Estrada embraces different premises from those claimed by the plaintiffs; that the premises which it cedes were called “ Buena Vista,” and are situated on the south side of Salinas or Monterey River; and that the premises granted to José Mariano Estrada were called *511 “ Llano Buena Vista,” and are situated on the north side of the same river. This fact that the parties claim under independent-grants, covering different premises, of itself disposes of the case.

But if the fact were otherwise, and the two grants covered the same premises, the case presented would only be one of conflicting grants. Neither can be made the basis for impeaching a patent for the same premises until its validity has been determined by the tribunals of the United States, under the Act of Congress of March 3d, 1851. And as the validity of the claim of the defendant Spence under the grant to José Mariano Estrada has been recognized and confirmed, and a patent issued to him, the claimants under the opposing unconfirmed grant, even if it embrace the same premises, relying solely upon such grant, cannot call in question his rights either in law or equity. It does not appear from the record whether those claimants have ever presented their claim for confirmation. If they have not done so their claim is to be treated as non-existent, and the land, so far as they are concerned, as part of the public domain. (Estrada v. Murphy, 19 Cal. 269 .)

Independent of these views, there is another consideration which concludes the case. The plaintiffs do not show the possession of any equities which can control the legal title. They present no evidence of the existence of any such relation of trust or confidence between them and the patentee as imposed upon the latter the duty of acting for their benefit, and of holding the title for their use. There was no fiduciary relation between them. Nor does it appear that there was any mistake committed by the authorities at Washington in issuing the patent to the defendant Spence. The instrument was intended for the party who received it. Nor is it pretended that any fraud was committed by the patentee in the deraignment of his title from the original claimant of the premises. The genuineness and due execution of the intermediate conveyances from José Mariano Estrada to him are not questioned. Nor can it be said that he acquired his title with notice of any equitable rights of the plaintiffs which could affect him. The parties claimed under independent grants, and no equities could arise in favor of the plaintiffs against him from his knowledge of then separate claim.

Judgment affirmed.