The defendant tendered a defense upon equitable grounds. See McGill v. Dartist, 69 Fla. 587; 68 So.2d Rep. 755. He endeavored, but was not permitted, to show that he was a lawful homestead entryman upon and the owner of an equitable inceptive title to certain described lands; that he entered under and according to an existing government survey made in 1870; and that he, the defendant, was in privity with the United States under a paramount claim of title to the lands of which he was in possession. The record disclosed no claim by the plaintiff that the lands *Page 752 entered by defendant were not subject to lawful entry, or that the defendant was a mere trespasser thereon. Plaintiff claims the lands in question by virtue of a change in boundaries resulting from a subsequent survey, made pursuant to an Act of Congress, and which became effective in 1919. The latter survey was made subsequently both to defendant's entry of the lands claimed by him and to the issuance of the patent to plaintiff's predecessor in title. The defendant's entry receipt and the patent of plaintiff's predecessor in title each describe distinct and different, but contiguous parcels of land. The question presented seems to be whether the survey of 1870 or the survey of 1919 shall prevail between these parties. The boundaries of the lands described in defendant's entry receipt and in the patent of plaintiff's predecessor in title, as fixed by the survey of 1919, differ from the boundaries previously fixed by the survey of 1870. It appears that if the survey of 1919 prevails, the physical lands of which the defendant is in possession will be embraced within the description patented to plaintiff's predecessor, while the lands described in the entry receipt of the defendant would be elsewhere. If the survey of 1870, under which the defendant entered and under which the plaintiff's rights initially arose, is to prevail, the defendant is apparently in possession of the physical lands described in his entry receipt, while that patented to plaintiff's predecessor lies elsewhere. Thus it will be seen that the controversy between the parties is essentially one of location, or boundaries, rather than of legal title. The paper title of each party appears to be regular.

It is settled that the defendant in an action of ejectment may interpose a defense upon equitable grounds. Osceola Fert. Co. v. Beville, 86 Fla. 479; 98 So.2d Rep. 354. It is true that until an entryman has become entitled to a patent he has no vested right in the land as against the United *Page 753 States such as will deprive Congress of the power to dispose of the land otherwise than by a patent to him. 32 Cyc. 819. See also: Lovell v. Wall, 31 Fla. 73; 12 So.2d Rep. 659; Hagan v. Ellis, 39 Fla. 463; 22 So.2d Rep. 727. But the principle just stated is not applicable to this case. The defendant entryman originally entered the lands described in his entry receipt in 1913. In 1915 the United States patented to plaintiff's predecessor certain described lands. Defendant's entry was made and the patent of plaintiff's predecessor was issued while the survey of 1870 was in effect, and prior to the survey of 1919. According to the survey of 1870, the lands entered by the defendant and the lands patented to plaintiff's predecessor were separate and distinct, but contiguous, tracts. It is due to the change in boundaries resulting from the survey of 1919 that plaintiff now claims a part of the lands actually occupied by the defendant under his original entry. But long prior to the survey of 1919 the United States had divested itself of all title to the lands described in the patent through which plaintiff claims by patenting the same to plaintiff's predecessor while the survey of 1870 was unquestionably effective. Thus it will be seen that the attempted change in boundaries wrought by the survey of 1919 produces a controversy wholly between private individuals, the title patented to plaintiff's predecessor by the United States being predicated upon the former survey of 1870. When a homestead entryman has made a lawful entry upon public lands, and has obtained a certificate of entry, and is not in default in his compliance with the requirements of the law under which he entered, even though he has not completed all his payments, such lands are no longer subject to entry or settlement by another. As against all except the United States, such entryman is the lawful possessor of the lands he entered and is clothed with an inceptive title which entitles *Page 754 him to maintain suits in equity or actions at law to obtain redress for a violation of his possessory rights. United States v. Buchanan, 232, U.S. 72; 58 Law. Ed. 511. In an action of ejectment brought by a private individual — as in this case by a grantee of a patentee of public lands — the inchoate equitable rights acquired by another under a lawful and subsisting entry will be protected against a patent issued in violation of the rights of such entryman, when the rights of the entryman are such that he is entitled to attack the patent. Knapp v. Alexander Co., 237 U.S. 162; 59 Law. Ed. 894; Johnson v. Drew, 34 Fla. 130; 15 So.2d Rep. 780; aff. 171 U.S. 93; 45 Law. Ed. 88; Doolan v. Carr, 125 U.S. 618; 31 Law. Ed. 844; Davis v. Weibold, 139 U.S. 507; 35 Law. Ed. 238; and see the note to Whitehill v. Victorio Land Cattle Co. (139 Pac. Rep. 184), L. R. A. 1918-D, 593, 505.

When an entry of public lands is made in good faith and in reliance upon an actual government survey, the patent, when issued, relates back to date of the entry (Knapp v. Alexander Co., 237 U.S. 162; 59 Law Ed. 894) and refers to the lines actually run on the ground according to the survey under which the entry was made. Washington Rock Co. v. Young, 88 Pac. Rep. 382; 110 Am. State Rep. 666, and notes. The survey actually made by the United States Government, and according to which it sold the land, controls as between parties to an action in ejectment involving such land. Miller v. White, 23 Fla. 301, 2 So.2d Rep. 614; Watrous v. Morrison, 33 Fla. 261; 14 South. Rep. 805; Washington Rock Co. v. Young, supra.

Since the defendant, in ejectment or other action at law, may set up by equitable plea any facts which would entitle him to relief on equitable grounds against the judgment obtained by the plaintiff (Sec. 2635, Rev. Gen. Stats. 1920), it is unnecessary to determine whether the facts asserted by *Page 755 the defendants in this cause, if true, would render the patent of plaintiff's predecessor void (in so far as it purports to affect the lands in controversy) and therefore subject to collateral attack, or merely voidable and therefore amenable only to direct attack in equity. See Doolan v. Carr,supra; Johnson v. Drew, supra.

In ejectment, an equitable estoppel may be proven under the general issue, McGill v. Dartist, 69 Fla. 587; 68 So.2d Rep. 755; Blackiston v. Smith, 73 Fla. 25; 73 So.2d Rep. 839; Coram v. Palmer, 63 Fla. 116; 58 So.2d Rep. 721; Hagan v. Ellis,39 Fla. 463; 22 So.2d Rep. 727; Johnson v. Drew, supra; and see also the notes to Chilton v. 85 Mining Co. (168 Pac. Rep. 1066), L. R. A. 1918-F, 243, 257; and the notes to Knauf Tesch Co. v. Elkhart, etc., Co. (141 N.W. Rep. 701), 48 L. R. A. (N. S.) 744, 759, and the notes to Kenney v. McKenzie (120 N.W. Rep. 781; 127 N.W. Rep. 587); 49 L. R. A. 775, 778.

It is unnecessary, however, to consider whether the defendant was entitled to introduce his proffered evidence under the general issue as an equitable estoppel, or whether his equitable defense was of such a nature that it should have been specially pleaded, since the plaintiff did not object to the evidence on the ground that it presented a defense not pleaded.

WHITFIELD, TERRELL AND BROWN, J. J., concur. *Page 756