the statute gave no direction whatever to the passage of the title, after its arrival in Poncin. The only part of the Act upon which argument can be based to show that Congress did not mean that the existing laws of the land, which were adequate to effect complete justice, should be left to operate upon Poncin's estate, and so to work out an adjustment of the right of the respective parties, is that portion providing that the entry of Peter Poncin be allowed and re-instated, as of the date of said entry. Even this clause of the statute cannot be made the basis of such an argument, unless it must be accorded a literal operation. Ordinary legal principles were left by this clause free to accomplish their usual results, unless Congress not only meant the proposed transfer to relate back to the time of the location in 1850; but by the clause actually did make it relate back to that time, and have the same effect in law for every purpose and as between all persons, as if the location had been legally perfected at that date. In other words: unless, by the clause, all parties interested and the courts were estopped from saying that title did not in fact pass to Poncin in 1850. It is unnecessary to argue that Congress is powerless to enact, with effect, that title to any property at the time actually vested in the United States, was transferred by the latter years before, for to argue that it could, would be to propound a manifest absurdity. It is no less unnecessary to argue that Congress is powerless to enact with effect to-day that a designated person may have a patent of some parcel of land in which none but government has any spark of interest, and that upon the issuance of such patent to-morrow, the land shall have been the property of the patentee for the four years past. However extensive the authority of that body may be over the public domain it cannot, from the very nature of things, declare, with effect, binding upon third parties, that lands have been transferred by government one moment before they have actually passed from it. It is manifest, therefore, that the statute produced no retroactive result by virtue of its operating upon banks themselves and changing them from what they really were. It did not operate by way of ratifying any previous void Act of the party, Poncin, and of the land officers. Ratification can only take place when the party ratifying consents to what has been done and agrees to abide by it as it exists. In this instance, Poncin had never made any "entry" of the lands, and had never offered to make any. It will be no answer to these positions to argue that the lands were the government's, and that, therefore, it was free to grant them to whomever it should choose. The Act did not purport to burden Poncin's title with equities or trusts in favor of any specified person. The statement that allowance of the entry is made so that the title may inure to the benefit of Poncin's grantees, does not declare a use in favor of any particular claimant of the land, in preference to any other, but does no more than to assign a reason operating upon the minds of Congress to induce the enactment of the law. It is simply a statement of one of the causes leading to so extraordinary and exceptional a piece of legislation. This recital, if it may be so termed, instead of negativing the idea that the question of title was to be left for settlement by general principles, is the strong-case. est possible expression of intent, on the part of the law-making power, that it should be settled in that way, and in no other. If, therefore, the clause referred to cannot preclude us from insisting as a matter of law, as well as a matter of fact, that Poncin had nothing in the lands until Oct., 1854, no imaginable room is left to contend that the special act gave any peculiar direction of its own to the transit of title from Poncin forward. As regards this clause, the appellant denies that it had a literal effect. In so far as it assumed to produce retroactive results, it was inoperative, at least as to interested parties, other than the United States and Poncin. If it had a literal and retroactive operation, its effect was to clothe the patent issued under it in 1854, with the same legal consequences that would have attended one lawfully issued in 1850. Such a result was not accomplished for several decisive reasons. It could only be accomplished in one of two ways: a 1. By the statute acting by way of ratifying void act done in the name of the United States, by one having no authority at the time; or, 2. By the statute acting by way of saying that the rights of all persons should be, under this patent, precisely what they would have been if the attempted location had been effectual and a patent had issued upon it. So far from denying or avoiding such fact and right, the appellant not only admits them, but relies largely upon them to establish his It is true that none of the parties who had given or taken deeds of the lands, had any claim or right whatever to them as against the government. It was free to grant them, with or without price, to Poncin, Pepin, French, the Elfelts, or to anyone else who should choose to accept the grant when made. But the defect in such an agreement would be that government exercised its right of disposition by passing over all the title it had in the lands, to Poncin, and by evidencing such transfer by a conveyance of the highest degree of solemnity of any in its use. It chose Poncin as the recipient of its grant, and appointed no particular person to share the advantages of the grant with him. Although government, by the statute, declared that it exercised its proprietary right of disposition of the lands, so that the title vested by it in Poncin might inure to the benefit of his grantees, in so far as he might have conveyed the same, it omitted to state which of the several parties claiming to stand in that relation was the one intended. It did not even undertake to say that any part of the land had been conveyed, much less to decide whether French, with his covenants, or the Elfelts, without any, and holding a mere release applying to no future interest, was the person to whom the title with which it was parting should ultimately move. Congress plainly meant that whoever should get title after Poncin, should get it by the laws of the land, and did not mean to as sume the task of itself settling and adjusting the conflicting claims of those deriving title | conveyed all his right, title and claim, "both from him. Had there been any design on the part in law and in equity, as well in possession as of Congress to intervene between the adverse expectancy," to Elfelt. claimants, it would have adopted some mode of choosing between them, and when its choice had been arrived at, would have enacted that the title be made over to such person directly. The insurmountable difficulty with respondents' title is, that it would force a construction upon this Act that would give to a mere quitclaim deed, having no covenants nor averments of title, equal efficacy with a deed having covenants to pass subsequently acquired estates. If the appellant is estopped from asserting anything, it is either that Poncin had no title in 1850 or that he had no title in 1851, when he quitclaimed to the Elfelts. And if such estoppel arose at all, it was upon his deed to the Elfelts, because that is the only transaction between them of any consequence in determining that question. That deed, however, contained no averment of title, and no covenant and, consequently, no statement capable either of being denied or affirmed. It is well settled in this court that a deed of that character works no estoppel whatever upon the grantor (Van Rensselaer v. Kear ne 11 How., 297); and such is the universal doctrine. Mr. H. J. Horn, for appellees: So long as appellant derives his whole title from the Pepin deed, and derives it solely upon the theory that Pepin is estopped to deny that he had title when he made his deed, he is equally estopped to deny that title did not pass to French and, consequently, is estopped to deny that French had not a good title when he conveyed to the Elfelts. See, Douglass v. Scott, 5 Ham. (Ohio), 194; Royston v. Wear, 3 Head (Tenn.), 8; Carver v. Jackson, 4 Pet., 1. The deed from French to the Elfelts, although in form a quitclaim, was sufficient. A deed of release and quitclaim may convey the interest of the releasor without words of grant, although the releasee had no prior interest in or possession of the estate. 2 Washb. Real Est., citing Jackson v. Fish, 10 Johns., 456; overruling Bennett v. Irwin, 3 Johns., 365; Russell v. Coffin, 8 Pick., 143; Pray v. Pierce, 7 Mass., 381. Mr. Justice Swayne delivered the opinion of the court: This is an appeal in equity from the Circuit Court of the United States for the District of Minnesota. The appellant, under a remedial statute of the State, filed the bill to enforce his claim of title to the real estate in controversy. The court below decreed against him, and he thereupon brought the case to this court by appeal for review. The facts, so far as it is necessary to state them, are as follows: The premises were a part of the public domain of the United States. On the 13th of February, 1850, Peter Poncin entered at the proper land office a tract of one hundred acres. The premises are a part of that tract. On the 28th of March, 1850, Poncin conveyed the entire tract to Pepin, by deed of warranty. On the 19th of April, in the same year, Pepin conveyed with warranty to French. On the 19th of March, 1851, French, by deed of quitclaim, On the 10th of March, 1851, the Commissioner of the General Land Office set aside Poncin's entry, upon the ground that the section in which the land was situated was reserved by the Act of March 3, 1849, for school purposes. On the 15th of October, 1853, Elfelt conveyed, by deed of quitclaim, to Van Etten. On the 27th of July, 1854, an Act of Congress was passed whereby the entry of Poncin was re-instated, and it was enacted that upon the payment of the purchase money a patent should issue to him. On the 19th of October 1854, Elfelt executed to Van Etten a further deed of quitclaim. On the 24th of October, 1854, Van Etten, by deed of quitclaim, conveyed the undivided half of the tract to Robertson. On the 31st of the same month, Poncin paid into the Land Office the price of *the land, and on the 24th of [*31 March, 1855, the United States issued to him a patent for it. On the 22d of July, 1855, Robertson and Van Etten laid the tract out into lots and platted them as an addition to the City of St. Paul. This addition is now worth more than half a million of dollars. The lots and blocks of lots in controversy are parts of this addition. All the deeds before mentioned were duly executed and recorded. On the 14th of January, 1856, French conveyed, by deed of quitclaim, the entire tract to Furber. On the 28th of June, 1856, Furber conveyed by a like deed to Dunn. On the 31st of July, 1856, Dunn executed a like deed to Hammond, and on the 20th of September, 1862, Hammond a like deed to McCarthy, the appellant. The deeds to Furber and Dunn were duly recorded. Those to Hammond and the appellant have never been recorded. The Act of Congress under which the second entry of Poncin was made is as follows: "An Act authorizing a patent to be issued to Peter Poncin, for certain lands therein described. "Sec. 1. Be it enacted, That the entry by Peter Poncin of the north half of the southeast quarter and the south half of the northeast quarter of section thirty-six, in township number twenty-nine, of range twenty-three, in Stillwater land district, Minnesota, canceled by the Commissioner of the General Land Office, be, and the same is hereby allowed and re-instated as of the date of said entry, so that the title to said lands may inure to the benefit of his grantees as far as he may have conveyed the same; provided, that the money paid for said lands shall not have been withdrawn, or, if withdrawn, shall be again paid at said land office, and that thereupon a patent shall issue in the name of said Peter Poncin for said lands. Sec. 2. And be it further enacted, That the superintendent of public schools in said Territory of Minnesota, be, and he is hereby authorized to select other lands in lieu of said section thirty-six, as far as the same have been granted or sold." *The first entry by Poncin was clearly [*32 void, and the Commissioner was right in setting it aside. When the Act in question was passed, the United States held the land as if no entry had been made. Being the absolute owners, they could grant it upon such terms and conditions as Congress might prescribe. The government united the powers of ownership and legislation, and both were exercised in passing the Act. The Act declared, first, that the entry should be re-instated as of its original date, and that a patent should issue to Poncin; second, that the title should inure to the benefit of his grantees as he should have conveyed the land. The law is explicit and there is no difficulty in carrying out its provisions. It must be liberally construed to effect the purposes of its enactment. By Poncin's grantees was meant those claiming title under him. Those to whom he might have conveyed were no more intended to be beneficiaries under the Act, than those holding remoter links in the same chain of title. When he paid his money and procured a certificate of entry pursuant to the Act, an equity vested in each of those who would have held it, if the original entry had been valid, and when the patent issued, the legal title vested in the same parties. The Act applied the doctrine of relation. It made no distinction between grantees with warranty and those without it. If there had been outstanding title bonds, they also would have been within the equity of the Act, and the holders could have enforced them accordingly. The law and equity of the case are with the appellees, and the decree of the Circuit Court is affirmed. WILLIAM T. FRASER, Appt., บ. Messrs. John Ganson and B. H. Williams, for appellant: The collision took place at about 9 o'clock in the evening of Nov. 29, 1869, off Port Stanley, near the middle of Lake Erie. The night was cloudy, dark and hazy, with a fine rain. The lights of the schooner were seen, by those in command of the propeller, in ample time to avoid a collision, and there was nothing in the locality to prevent a steam vessel from maneuvering as she chose. The general course of the propeller, as shown by its compass, when it first made the lights of the schooner, was east, three quarters north. The propeller's compass varied from the true course about three fourths of a point, so that the propeller's general true course was east by north, half north. The schooner's course was southwest by west, half west. These courses intersected each other, with a difference of only one point. The propeller at some time starboarded its helm. There is a dispute as to when this was done, and what the relative positions of the propeller and schooner were, when the order to starboard was given. The propeller hit the schooner on the larboard side, between the stem and the fore-rigging. The sterns stood at less than a right angle as the collision occurred. The chief dispute upon the evidence relates to the schooner's changing her course, and the proximity of the vessels when the propeller star-boarded. The propeller claims that the schooner ported her helm before the collision was imminent and thereby caused the collision. The schooner denies this, and those in command of her and on duty at the time, testify positive THE PROPELLER WENONA, etc., William G. that she was kept on her course until the col Fargo et al. Argued Nov. 26, 1873. Decided Jan. 12, 1874. PPEAL from the Circuit Court of the United States for the Northern District of New York. A' lision became inevitable. The order was given by the captain when they were close together. Her helm was then ordered hard a-port, but not in time to enable her to swing to starboard more than a point and a half or two points. This was done to ease the blow. The propeller and the schooner, when their respective lights were first made, were pursuing such courses as to bring this case, as the vessels approached each other, within the 15th and 18th articles of the Act of Congress, approved Apr. 29, 1864, entitled "An Act Fixing Certain Rules and Regulations for Preventing Collisions on Water." 13 Stat. at L., 58, 60. Article 15 of that Act provides that "If two ships, one of which is a sailing ship, and the other a steamship, are proceeding in such directions as to involve risk of collision, the steamship shall keep out of the way of the sailing ship.". Article 18 provides that "Where, by the above Rules, one of two ships is to keep out of the way, the other shall keep her course, subject to the qualification contained in the followarticle"-which it is not, in this connection, necessary to quote. This cause was commenced by libel filed in the District Court of the United States for the Northern District of New York, by the presenting appellant, to recover damages for the loss of the schooner Fremont occasioned by a collision with the propeller Wenona. The history and general facts of the case are clearly stated in the opinion. The particular claims of the parties ap pear more fully in their respective briefs. See, also, 4 Ben., 207, and 8 Blatchf., 499. NOTE--Collision; rights of steam and sailing vessels with reference to each other, and in passing and meeting-see note 13 L. ed. U. S. 537; and note 35 L. ed. U. S. 453. The courses of the propeller and the schooner intersected each other, there being a divergence of one point only between them. The position intersection, would present to its view the green of the propeller, before it reached the point of light of the schooner, a little off the port bow. The master of the propeller says, "He first made the green light of the schooner in about that position, or nearly dead ahead, when the vessels were a little short of two miles apart. Those on the schooner, when about the same distance | light, although the propeller was continually from the propeller, made its masthead light, and soon after its colored lights, about ahead, tending toward the windward of the schooner's course. Under these circumstances, it was the duty of the schooner, as the vessels approached each other, and when near enough to involve the risk of a collision, to keep her course. The mate and wheelman testify positively that the schooner did keep its course until the propeller was coming directly on to the schooner and was only a short distance off when its wheel was put hard a-port under the captain's order to ease the anticipated blow. This affirmative evidence is to be believed instead of mere negative evidence. It is to stand until it is overborne by other proof. There is no evidence of a positive character in opposition to this affirmative testimony. On this point, the most that can be claimed for the respondent's evidence is, that it conveys opinions rather than facts, in opposition to the positive evidence on the part of the libelant. That kind of evidence cannot weigh against positive proof. Steamship Co. v. Rumball, 21 How., 372, 16 L. ed. 144; Johnson v. Scribner, 6 Conn., 185; Woodcock v. Bennet, 1 Cow., 711; Wilds v. R. R. Co., 29 N. Y., 315. If a steamer makes the light of a sailing vessel at a sufficient distance to avoid coming in contact with the vessel, and a collision ensues, prima facie, the steamer is, chargeable with fault, and the steamer must exculpate itself by clear and satisfactory evidence, or she will be held liable. The Carroll, 8 Wall., 302, 19 L. ed. 392; Oregon v. Rocca, 18 How., 570, 15 L. ed. 515; Steamship Co. v. Rumbull, 21 How., 372, 384, 16 L. ed. 144, 148, above cited; Lowndes, Col., 14. It appears by the evidence of the master, lookout, mate and wheelman of the propeller, that when they first made the red light of the schooner, it was from a point and a half to two points off the propeller's starboard bow, and that the schooner was then from a quarter to half a mile off. swinging to port, continued to close in on the propeller's course, until just as the vessels came in contact. At the instant they came in contact, the red light of the schooner had got nearly in front of the propeller's stem. The master of the propeller testifies that, before seeing the red light, he saw the green light of the schooner, and it then "bore right dead ahead, or near that if "anything, a little on the starboard bow," that he then gave his wheelman an order "to put his wheel a-starboard; that he gave that order immediately on making the green light." The order was given before the master of the propeller had taken any time to ascertain the schooner's course. It was precipitate. There was not any occasion for giving the order then. The vessels were then, he says, two miles apart. The order to starboard, followed up by the order hard a-starboard, it is evident caused the collision. Holt, Rule of the Road, 171; Lowndes, Col., 27; The Cleopatra, Swab., 135. It is plain, from the language of the Act of Congress and from the adjudications upon it and similar Acts, that the rules therein prescribed are not binding until the risk of a collision becomes apparent. Until such risk does appear, it is evident that those in command of approaching vessels cannot know what precaution it is necessary to take to avoid a collision. The relative position and courses of the two vessels must be known, before any intelligent or safe action can be taken. If time is not taken to obtain such knowledge, any maneuver may be the very one which should not be made. If doubt exists in the case of a steamer as to the proper course to be taken when nearing a sailing vessel, arising from difficulty in determining the course of the sailing vessel, then the steamer should "slacken her speed, or, if necessary, stop and reverse." 13 U. S. Stat. at L., p. 61, Art. 16; Holt, Rule of the Road, 200, The Joseph Staker v. The Karla. The mere fact that the green light of the schooner, when first seen from the propeller at a distance of two miles, was nearly dead ahead, did not show anything to the propeller, by which it could be determined at once what order should be given. For the vessels were then two miles apart. From the time the propeller made the steamer's red light off its starboard bow, the vessels were proceeding in such directions as to involve risk of collision, and the propeller, by starboarding its helm, increased that risk. The vessels were then over a quarter of a mile apart, and the propeller was at fault for not porting or stopping. There was then ample time to do both. The combined speed of the two vessels was about fifteen miles an hour. They would approach each other at the rate of a mile in four minutes. Those in charge of the propeller testify that they had, previous to this, seen the green light a point and a half or two points off the propeller's starboard bow. When the green light disappeared, and the red light appeared on the starboard bow, those on the propeller ought to have known that the schooner was passing to the port of the propeller. The space, then, between the two vessels being, as the master testifies, not less than one quarter of a mile, gave ample time for the propeller to port, and to pass to the windward and to the stern of the schooner, especially as they must have known the schooner was making some leeway. Instead of doing this, the master of the propeller or- The testimony of the libelant and his witdered his wheel hard a-starboard, which swung nesses shows that the schooner performed her the bow of the propeller to port, and in a direc-duty by keeping her course, and that the protion to cross the course on which the schooner peller was solely at fault. was then known to be proceeding. The indications to those in charge of the propeller were, while the vessels were passing this quarter of a mile, that the vessels must collide; for the red The respondent's evidence fails, therefore, to exculpate the propeller. It in fact shows that the collision is attributable to the want of proper precautions on the part of the propeller. The evidence on the part of the libelant shows great care, caution and attention. The mate and captain of the steamer, seeing that the propeller was steering directly for the schooner, so as to involve risk of a collision, ordered a torch lighted, to attract the attention of the propeller, and warn it of the danger. The first light from the torch did not, apparently, attract the attention of the propeller for it continued to bear for the schooner. A second flashlight from the torch was made. The man at the wheel was cautioned, at the same time, to keep the schooner steady on her course. He testifies that he did so. There is not any dispute as to the fact that the propeller starboarded its helm, but the witnesses of libelant and respondents differ considerably as to the then relative position of the two vessels, and as to the distance there was then between them. The libelant's witnesses testify that when the second torch-light went out, the vessels were very near each other. It was at this time that the libelant himself stepped on top of the cabin. The vessels were then, as the libelant testifies, from one quarter to half a mile apart. The master of the propeller testifies that he made the red light of the schooner after the second torch-light went out, and that, when he did so, the vessels were from a quarter to half a mile apart, not less than a quarter of a mile. He testifies that some little time elapsed between the disappearance of the second torchlight and the appearance of the red light of the schooner. The master of the propeller testifies that he gave the order, hard a-starboard, as soon as the red light of the schooner appeared. He testifies, furthermore, that he did not give the order by the bells to the engineer to stop and back, until he saw that he could not clear the schooner. The libelant's witnesses testify that the propeller, suddenly, when very near the schooner, swung to port and came right on to the port bow of the schooner, showing the green light and shutting in the red light, just as the vessels were coming in contact. This was of course when the propeller's helm was put hard a-starboard. It is evident that the distance between the two vessels, when the propeller put her helm hard a-starboard and swung to port, was about as the libelant's witnesses state, and not so great as that given by the respondents' witness es. the propeller for getting the vessels into that position, and it must be held liable. The Lucille, 15 Wall., 676, 21 L. ed. 247; Benetly v. Coyne, 4 Wall., 509, 18 L. ed. 457; The Carroll, 8 Wall., 302, 19 L. ed. 392; The Fairbanks, 9 Wall., 420, 19 L. ed. 708; see, Law Reg. for Feb., 1870, p. 118. If the propeller, having the green light of the schooner two points off its starboard bow, starboarded its helm, and kept it so until the order. hard a-starboard was given, its red light could not have been seen, from the time it made the schooner's green light to the time of the collision, even if the schooner had ported and gone off before the wind. Besides, the vessels could not have collided at all under those circumstances. The respondents' theory is, that the propeller was to the leeward of the schooner's course, and never passed to the windward of that course at all, but kept to the leeward with a starboard helm. The collision could never have occurred, if that had been the relative positions of the vessels when the propeller starboarded. The question, relative to the position of the schooner's lights, is not of any importance in this case, as it affirmatively appears that they were so placed as to be and were visible to the master, mate and lookout of the propeller, as they admit, at the distance of two miles. It is not claimed by them that they were, in any respect, misled by the position of the schooner's lights. Hence, if they were wrongly placed, it is not of any importance in this instance. The Vivid, Swab., 89; Flavia Gioja, 3 Mitch. Mar. Reg., 757; The Juliana, Swab., 22. But the libelant claims that the provision of the statute, relative to carrying lights on sailing vessels, does not designate the place where they are to be located. The statute is complied with, if they are so placed as to be fairly visi ble. The phrases, "on the starboard side" and "on the larboard side" of the vessel, do not relate to the side of the hull of the vessel, but to the side on which the reflection of the light shall be seen. The green light is to be exhibited on the right hand, and the red on the left hand. The City of Carlisle, 10 Jur. (N. S.), 965; The City of Carlisle, 8 Mitch. Mar. Reg., 943; The Emperor v. Lady of the Lake, Privy Council, 8 Marsh., 1865. Mr. George B. Hibbard, for respondents: The speed of the propeller was about ten miles an hour, and that of the schooner probably about five or six miles an hour. This will more satisfactorily appear when we bear in mind that the bells to stop and back were rung in great haste. The engineer says, when he got the bells he was standing by the starting bar, and immediately executed the order. That this was about thirty seconds before the vessels collided; that he got the engine reversed, in about five seconds, and it had made The original course of the propeller by her about six backward revolutions as the vessels own compass, was east three quarters north, came together. The captain and mate of the but as is common, her compass so varied that schooner heard the jingling of the propeller's her true course was east by north, half north. bells, when the propeller was a very short dis- The original course of the schooner, by her comtance from the schooner, not more than one pass (there is no proof whether or not it vahundred feet off. There was evidently a sud-ried, as compasses almost universally do) was, den emergency when the signals to the engineer were given, for the captain of the propeller did not check his speed before giving the order to stop, and he repeated the order before the engineer had executed the first one, fearing the engineer would not get the first order. There was haste in the maneuver, and before it was made, it is evident that the vessels were in a dangerous proximity. The blame rests with as he claims, early in the evening, southwest by west, and later, southwest by west, half west. Whatever her course and the wind were, she had a good full on, before she made the changes of course, as she did after she saw The Wenona. That she made at least two distinct and very considerable changes of course, after she saw The Wenona and before the collision, is beyond question on all the proofs, and is put bevond |