and it is also necessary for that department to determine whether the lands which the company desires to select for indemnity are open to selection; whether there is not some prior claim upon them in behalf of settlers or others. It is therefore entirely proper that the secretary of the interior should have the right to approve or disapprove of the selection before it becomes final. This is clearly the meaning of the provision of the grant to the Northern Pacific, which declares that the indemnity lands shall be selected by the company "under the direction of the secretary of the interior." 13 St. U. S. c. 217, p. 365, § 3; Elling v. Thexton, 16 Pac. Rep. 931; St. Paul, etc., R. Co. v. Winona, etc., R. Co., 112 U. S. 720, 5 Sup. Ct. Rep. 334. The statute must have the same construction that would be given it if the word "approval" had been used in place of the word "direction." The title to the indemnity lands does not pass until the selection has been made. Ryan v. Railroad Co., 99 U. S. 382; St. Paul, etc., Railroad Co. v. Winona, etc., Railroad Co., 112 U. S. 720, 5 Sup. Ct. Rep. 334; Barney v. Railroad Co., 117 U. S. 228, 6 Sup. Ct. Rep. 654; Sioux City, etc., R. Co. v. Chicago, etc., R. Co., 117 U. S. 406, 6 Sup. Ct. Rep. 790; Wisconsin Cent. R. Co. v. Price Co., 10 Sup. Ct. Rep. 341. Under this last decision the approval of the secretary of the interior is essential to selection. Without it there is no selection in fact. In the language of the opinion in that case, "until the selections were approved there were no selections in fact, only preliminary proceedings taken for that purpose, and the indemnity lands remained unaffected in the title." The same facts which show that the land was exempt from taxation are fatal to the plaintiff's right to maintain this action. The title never having passed from the government, the railway company had none to convey. Plaintiff does not pretend that he has any title except in so far as § 5 of the act of congress, approved March 3, 1887, (24 St. 556,) may confer upon him some kind of title. That section provides, in substance, that the purchaser of such land from the company, having failed to secure any title because the company had none to transfer, may make payment to the United States for such land at the ordinary government price for like lands, and thereupon a pat ent shall issue to him. This statute certainly does not confer upon him the legal title to the land. That still remains in the United States. Nor is it easy to perceive how the statute can be said to vest in the plaintiff an equitable title to the land. He is a mere settler, with a right to purchase on making a certain payment. It is not pretended that that payment had been made at the time this action was commenced. The plaintiff then had neither a patent nor a right to a patent. He was not in possession under a contract binding the owner of the land to convey to him the legal title. The government had not obligated itself to make such conveyance. It had granted to the plaintiff a concession which it could at any time withdraw. Whatever privilege he held under this act, the government was under no obligation, moral or legal, to continue to respect. He was the recipient of an indulgence-a favor; but in no sense could he claim to be the owner of any right enforceable in a court of law or equity. The vendee in a contract for the sale of real estate is, in equity, regarded as the owner, and is therefore said to hold the equitable title because he can compel the vendor to perform his contract. There rests upon the vendor an obligation to perform it which equity will enforce. The plaintiff in this case occupies no such position. He has a mere privilege. If he avails himself of it by the payment of money, he will then become the owner of the equitable title to the land, and possibly secure a standing in equity to remove a cloud upon his equitable interest. But we do not decide whether an equitable title is sufficient to warrant the maintenance of an action to remove a cloud therefrom. There is certainly authority for such a doctrine. See Hart v. Bloomfield, (Miss.) 5 South. Rep. 620; Slaon v. Sloan, (Fla.) id. 603; 3 Pom. Eq. Jur. § 1399, note 4; Bryan v. Winburn, 43 Ark. 28; Lamb v. Farrell, 21 Fed. Rep. 5; Emery v. Cochran, 82 Ill. 65; Langdon v. Templeton, 17 Atl. Rep. 839. On the other hand there is much which inclines to the more strict rule which requires a legal title to support such an action. See Frost v. Spitley, 121 U. S. 552, 7 Sup. Ct. Rep. 1129; Thomas v. White, 2 Ohio St. 548; Holland v. Challen, 110 U. S. 15, 3 Sup. Ct. Rep. 495. It is further insisted that under the decisions in Railroad Co. v. Rockne, 115 U. S. 600, 6 Sup. Ct. Rep. 201, and Wisconsin Cent. R. Co. v. Price Co., 10 Sup. Ct. Rep. 341, the railroad company could have maintained this action had it not executed a deed of the property to the plaintiff, and that therefore the plaintiff can maintain the action because he has succeeded to the interest of the company in the property. In the case of Wisconsin Cent. R. Co. v. Price Co., it appeared that the plaintiff, at the time of instituting its action to set aside the tax-proceeding, was the owner of the legal title, although, when the tax proceedings were initiated, such title was still in the state in trust. The land grant-of the plaintiff in that case was made by the United States to the state in trust, and, intermediate the levy of the tax and the commencement of the action to annul the tax proceedings, the state executed to the plaintiff a patent for the land in question. This patent was by a state statute prima facie evidence of title in the grantee, and the trial court found as a fact that the plaintiff was the owner of the legal title, and this finding was in no manner challenged. The fact, therefore, was undisputed that the plaintiff, when the suit was brought, was the absolute owner in fee of the land over which the cloud rested. In the Rockne Case, the court held, not that the legal title was in the railroad, but that the interest of the company, whether legal or equitable, was subject to a lien in favor of the United States for the unpaid survey fee, and that therefore the land was exempt from taxation by the state; that the tax proceedings, if valid, might result in the destruction of this lien by a sale of the absolute title should the taxes remain unpaid. It is apparent in this case that the court regarded the interest of the company in the land as equivalent at least to an equitable title. Said the court on this point: "The government was as to those costs in the position of a trustee in a conveyance to secure the payment of money." And in Denny v. Dodson, 32 Fed. Rep. 899 Mr. Justice Field, speaking of the statute giving this lien, and of the decision in the Rockne Case, says: "The law was therefore, in effect, an assertion of a lien upon the title papers, and upon the lands, for expenses necessarily incurred for their identification and survey, and in the preparation of conveyances by the government; and the decision of the court [i. e., the Rockne Case] was, in substance, that such a lier would not be made available against any taxation or sales thereunder. Notwithstanding the expression referred to, it is not believed that the court intended to hold that a legal title to the lands had not passed by the grant to the company, and thus overrule or qualify a long line of decisions announced after the Imost mature consideration, and discredit the security which, only a few weeks before, congress had authorized by mortgage on the lands to raise funds to construct the road, but only to declare that the power of disposition by the grantee was stayed by the government until the payment of the costs mentioned was made, and the right of the government to enforce such payment could not be defeated by the tax laws of the territory." It thus appears that in the Rockne Case the plaintiff was the owner of at least the equitable title to the land, and, in the other case, of the fee simple, when the suit to remove the cloud was instituted. The cases are not, therefore, in point. We hold that the tax proceedings are void under the allegations of the complaint, but that the plaintiff has no such interest in the property as entitles him to maintain this action. The order and judgment of the district court sustaining the demurrer are therefore affimed. All concur. BARTHOLOMEW, J., having been of counsel, did not sit upon the hearing of the above case, nor participate in the decision herein given. P. P. PERSONS and Others, Plaintiffs and Appellants v. JOHN SIMONS, Defendant and Respondent. 1. Appealable Order; Order Denying Motion for Judgment is Not. An order of the district court refusing an application for judgment upon the findings of a jury is not an appealable order, within the meaning of subdivision 1, § 5236, Comp. Laws 1887, which subdivision is as follows: "An order affecting a substantial right, made in any action, when such order in effect determines the action, and prevents a judgment from which an appeal might be taken." Such an order neither determines an action nor any issue in an action, nor is it the le gal effect of such an order to prevent the entry of a judgment from which an appeal might be taken. 2. Same; Same; Not Even if Court Refuses to Order Judgment for Either Party. Held, further, that the order is not rendered appealable by the fact that the district court had previously denied defendant's application for judgment on the findings of the jury. A (Opinion Filed October 20, 1890.) PPEAL from district court, Stutsman county; Hon. ROD- George K. Andrus, Edgar W. Camp and Messrs. Scott and Remington, for appellants, cited: Belt v. Davis, 1 Cal. 136; Hill v. Sherwood, 33 id. 478; U. S. v. Schooner Peggy, 1 Cranch 193; Powell on Appellate Proceedings, sec. 111; Lamphear v. Lamphry, 4 Mass. 108; Tappen v. Buren, 5 id. 195; Hayne on New Trial and Appeal, § 184. Herman Winterer and Frank J. Young (J. B. and W. H. Sanborn of counsel) for respondent, filed no printed brief. WALLIN, J. After a trial had in this action the jury returned a general verdict, and, in addition thereto, returned answers to certain interrogations submitted to them by the trial court. Subsequently, the defendant, assuming that the findings of the jury were in his favor, moved for judgment upon such findings. The motion was denied. Thereafter the plaintiff, assuming that the findings of the jury entitled them to a judgment, moved the district court upon such findings for judgment in favor of the plaintiffs. The latter motion was likewise denied by the court, and, from the order denying the same, plaintiffs appeal to this court. The refusal of the district court to grant plaintiffs' application for judgment upon the findings is assigned as error by the plaintiffs. No judgment has been entered in the action. In this court a preliminary motion is made by respondent to dismiss the appeal, upon the ground, among others, that an order refusing to enter judgment upon a verdict is not an appealable order. The motion raises a question going to the jurisdiction of the court to consider the merits. If the order is not appealable, this court has not acquired jurisdiction to pass upon any |