Buckley

—• This is a hill in equity to procure a decree that the defendant holds the title to certain lands in Marin County, for which he procured patent as a preemptor, in trust for plaintiff, on the ground that plaintiff had a better right thereto, and that defendant procured the patent by fraud, and through mistake and misconception of the law on the part of the officers of the land department of the government.

That a patent may be attacked in this way, and such relief be had in a proper case, has been held in very many cases. (Bludworth v. Lake, 33 Cal. 256 ; Eversdon v. Mayhew, 65 Cal. 163 ; Hosmer v. Wallace, 47 Cal. 461 ; Rutledge v. Murphy, 51 Cal. 388 ; Plummer v. Brown, 70 Cal. 544 ; Sanford v. Sanford, 13 Pac. Rep. 602 ; Johnson v. Towsley, 13 Wall. 72 ; Moore v. Robbins, 96 U. S. 530 ; Smelting Co. v. Kemp, 104 U. S. 636 .) And such a ruling is in accord with section 2224 of the Civil Code.

*601 But in such a case it is not enough to show that the defendant was not entitled to have received the patent. Plaintiff must also show that she herself occupies such a status towards the property as entitles her to control the legal title. (Plummer v. Brown, 70 Cal. 544 .) If she…