and Nebraska Company, authorized to issue two millions of stock. In the absence of any evidence on the point, it is fair to presume the stock was absorbed when the contract was made. This Corporation he trusted, and the persons who held its stock were undoubtedly liable to him in case he could not get his debt out of the Company. He not only holds this security, but in addition to it the assets of the Iowa Southern Company, and the liability of the holders of one and a half millions of stock in it. Besides this he has the obligation of the consolidated Company to pay his debt. It is difficult to see how these things have tended to impair his contract or lessen its value. But he seeks to increase his security by embracing the stockholders of the consolidated Company, who were not parties to the contract to pay his debt, but who subscribed after the amended liability law went into operation. This he cannot do. His

remedy under the law as it existed at the date of his contract is not impaired because the consolidated Company increased its stock, as it was authorized to do, and was enabled to sell it by reason of the withdrawal of the burden of personal liability.

It is claimed by the plaintiff that the law under which his debt was contracted made all who were stockholders on the issue of the execution liable to contribute personally to the payment of his debt, and two cases in Missouri are cited to support this proposition. McClaren v. Franciscus, 43 Mo., 452; Miller v. Ins. Co., 50 Mo., 50. These cases arose before the repeal of the law, and were controversies between the holders of stock when the debt was contracted and the actual holders of it at the date of the execution.

It was conceded that one class or the other were liable, and the court decided that the liability attached to the stock and followed it in 255*] the hands of the assignee, and that, therefore, those stockholders only were liable who were such at the date of the execution. This is the full force of the decisions referred to, and they give to the plaintiff the right to seek his remedy against any one who held stock subject to the incident of individual liability, at the date of the execution against the Corporation.

But as the incident of individual liability has been repealed, and neither the law nor his contract makes the defendant liable for the debts of the Company beyond the amount of its stock, it follows that the decisions of the Supreme Court of Missouri on the point invoked are not applicable.

And so, doubtless, thought that court in its decision of this case, as the point is not noticed in the opinion.

Judgment affirmed.

JOHN DOE, Lessee of F. Valliant, Assignee of A. B. Montgomery, a Bankrupt, Plff. in Err.,

v.

S. W. CHILDRESS.

(See S. C., 21 Wall., 642-647.)

1. Where property has been seized on attachment in a state court more than four months before the commencement of bankrupt proceedings, no defense being interposed by the assignee, in the state court, and no measures having been taken to arrest rupt court, and there being no fraud proven or the proceedings or to transfer them to the bankalleged, a good title was obtained under the sale,

on attachment made in the state court.

2. The transfer of his real estate by a debtor against whom an attachment had been issued, and before judgment or decree, whether by his own act or by operation of law, cannot impair or invalidate the title of a purchaser under such decree or judgment.

3. As to the class of attachments not within the four months' limitation, the bankruptcy proceedings do not work their dissolution. The debtor's title passes to the assignee, subject to the creditor's lien acquired by virtue of the attachment, and a judgment against the property attached may be entered, although a discharge has been granted and is pleaded in bar of the action.

The case is further stated by the court. Mr. Henry Cooper, for plaintiff in error: The assignee may prosecute all suits necessary to reduce to possession the assets of the bankrupt.

Bankrupt Act, § 14: Stevens v. Mechanics' Savings Bank, 101 Mass., 109.

It is true he might have had himself made a party to the proceedings in the state court, provided he knew of their existence; but he is not obliged to do so. "It cannot be maintained that the assignee, who is pursuing the assets of the bankrupt in the hands of third parties, is bound to resort to the state court because there is a litigation there pending. The language of the 14th section, that the assignee may prosecute and defend all suits pending at the time of the bankruptcy in which the bankrupt is a party, does not oblige him to seek a remedy in that way."

Traders' Bank v. Campbell, 14 Wall., 95, 20 L. ed., 833.

(No counsel appeared in this court for defendant in error.)

Mr. Justice Hunt delivered the opinion of the court:

The questions presented in this case arise upon the charge of the circuit judge to the jury, and the refusal of the judge to make certain other charges when requested. For requests to charge were presented and refused, and three charges were made by the judge question is this: when attachment proceedings to which exception was taken. The principal

647*] *make the proof necessary to terminate such jurisdiction. This rule gains whether the four months' principle is applicable or whether it is not applicable.

In Kent v. Downing, 44 Ga., 116, the court say: "The assignee may on his own motion be made a party, if for no other reason than to have it properly made known to the court that the defendant has become bankrupt. He has also a right to move to dismiss the attachment. The adjudication of bankruptcy must be made known to the court in some authentic mode. It may be denied, and the state court cannot take notice of the judgment of other courts by intuition. They must be brought to the notice of the court, and this cannot be done without parties."

In Gibson v. Green, 45 Miss., 209, the same principle is stated. See also Johnson v. Bishop, 1 Woolw., 324, opinion by Justice Miller.

The application of these principles gives a ready solution of the question presented in the case before us. The issuing of the attachments against the property of Montgomery took place more than four months prior to the filing of his petition in bankruptcy. By the law of Tennessee the levy of the attachments gave a specific lien upon the property described in them. See 3507, Stat. Tenn., 1871, and notes of numerous cases; Vol. 2 Thomp. & S. Stat., PP. 1463, 1464.

the State of Wisconsin, to Aid in the Construction of Railroads in Said State." That Act grants to the State, for the purpose of aiding in the construction of a railroad between certain specified points, every alternate section of land designated by an odd number, for six sections in width on each side of the road. The language of the 1st section of the Act is: "That there be, and is hereby granted to the State of Wisconsin" the land specified. The 3d section declares "That the said lands hereby granted to Legislature thereof;" and the 4th section provides said State shall be subject to the disposal of the in what manner sales shall be made, and enacts that if the road be not completed within ten years, "No further sale shall be made, and the lands unsold shall revert to the United States." The State accepted the grant thus made, and assumed the execution of the trust. The route of the road was surveyed and a map of its location was filed in the Land Office at Washington. The adjoining odd sections within the prescribed limits were then withdrawn from sale by the proper officers of the government, and certified lists thereof, approved by the Secretary of the Interior, were delivered to the State. Subsequently, on the 5th of May, 1864, Congress passed another Act on the same subject, entitled "An Act Granting Lands to Aid in the Construction of Certain Railroads in the State of Wisconsin." By its 1st section, additional land was granted to the State upon the same terms and conthe purpose of aiding in the construction of the ditions as those contained in the previous Act, for road between certain points designated in the Act of 1856, and the last Act extends the time for completing the road for five years. This road has never been constructed nor any part of it, and the time for its construction has not been extended since theAct of 1864; nor has Congress passed any Act, nor force a forfeiture of the grants for failure to conhave any judicial proceedings been taken, to enstruct the road within the period prescribed; held,. 1. That the Act of June 3, 1856, and the 1st section of the Act of May 5, 1864, are grants in præsenti and pass the title to the odd sections desig

ever, intervene or take any measures in the case. He allowed the property to be sold under the judgments in the attachment suits, and those under whom the defendant claims purchased it, obtaining a perfect title to the same.

The plaintiff has no title upon which he can recover, and the judgment of the Circuit Court to that effect must be affirmed.

If we are right in these views the consideration of any other question becomes unnecessary.

Judgment affirmed.

44*] *FREDERICK SCHULENBERG, Adolf Boeckeler and Louis Hospes, Partners as Schulenberg, Boeckeler & Company, Plffs. in Err.,

V.

SAMUEL HARRIMAN.

(See S. C., 21 Wall., 44-65.)

was fixed their location became certain, and the title, which was previously imperfect, acquired precision and became attached to the land.

2. That the lands granted have not reverted to the United States, although the road was not constructed within the period prescribed, no action having been taken, either by legislation or judicial proceeding, to enforce the forfeiture of the grants.

3. Unless there are clauses in a statute restraining the operation of words of present grant, these must be taken in their natural sense, to import an immediate transfer of title, although subsequent proceedings may be required to give precision to. that title and attach it to specific tracts. No individual can call in question the validity of the proceedings by which precision is thus given to the title, where the United States are satisfied with them.

4. The provision in the Act of 1856, that all lands remaining unsold after ten years shall revert to the United States if the road be not then 'com

pleted, is a condition subsequent, being in effect, a provision that the grant, to the extent of the lands unsold, shall be void if the work designated be not done within that period.

5. No one can take advantage of the non-performance of the conditions subsequent annexed to an estate in fee but the grantor or his heirs or successors, and, if, they do not see fit to assert their right to enforce a forfeiture on that ground, the. title remains unimpaired in the grantee. The rule equally obtains where the grant upon condition proceeds from the government.

6. The manner in which the reserved right of the grantor, for breach of the conditions, must be as

fect of grant-condition subsequent-who can take advantage of-mode of asserting-timber cut, title to replevin from mass-evidence under pleadings.

1. On the 3d of June, 1856, Congress passed an Act entitled "An Act Granting Public Lands to *Head notes by Mr. Justice FIELD.

NOTE--Conditions precedent and subsequent in wills and deeds-see note to Taylor v. Mason, 6 I. e'. 101.

character of the grant. If it be a private grant, that right must be asserted by entry or its equivalent. If the grant be a public one, the rights must be asserted by a judicial proceeding authorized by law, or there must be some legislative assertion of ownership of the property for breach of the condition, such as an Act directing possession and appropriation of the property, or that it be offered for sale or settlement.

7. Where the title to land remains in the State, timber cut upon the land belongs to the State. While the timber is standing, it constitutes a part of the realty; being severed from the soil, its character is changed; it becomes personalty, but its title is not affected; it continues, as previously, the property of the owner of the land, and can be pur

sued wherever it is carried. All the remedies are open to the owner which the law affords in other cases of the wrongful removal or conversion of personal property.

8. Where logs, cut from the lands of the State without license, have been intermingled with the logs cut from other lands so as not to be distinguishable, the State is entitled, under the law of Minnesota, to replevy an equal amount from the whole mass. The remedy afforded by the law of Minnesota in such case, is held to be just in its operation and less severe than that which the com

mon law would authorize.

9. Where, in an action of replevin, the complaint alleges property and right of possession in the plaintiffs, and the answer traverses directly these allegations, under the issue thus formed, any evidence is admissible, on the part of the defendant; which goes to show that the plaintiffs have neither property nor right of possession. Evidence of title In a stranger is admissible.

[No. 100.]

I

1875.

N ERROR to the Circuit Court of the United States for the District of Minnesota. Suit was brought in the District Court of Washington County, Minnesota, by the plaintiffs in error, to recover certain pine logs. Upon petition of the defendant, the case was removed to the court below, where judgment was given in defendant's favor. The plaintiffs sued out this writ of error.

The case is fully stated by the court. Messrs. E. C. Palmer and W. M. McClure, for plaintiffs in error:

Evidence that the State of Wisconsin accepted the grants of land referred to in the bill of exceptions, should not have been received. No foundation therefor was laid in the answer, and the evidence was incompetent and immaterial.

Anstice v. Holmes, 3 Den., 244, Harrison v.

McIntosh, 1 Johns., 380; Rogers v. Arnold, 12

Wend., 30; Prosser v. Woodward, 21 Wend.,

205; 3 Chit. Pl., 1044, tit. Replevin'; Gen. Stat. of Minn., ch. 66, secs. 79-113; Coit v. Waples, 1 Minn., 134; Finley v. Quirk, 9 Minn., 194.

The court will notice that actions of this

nature are regulated by statute in Minnesota, and that when the defendant, in such action as herein, claims a return of the property replevied, he occupies, as to his own title or claim, the position of a plaintiff. Gen. Stat. of Minn., ch. 66, tit. VIII., and § 249.

His answer, therefore, should set up the same facts substantially which would be required in a complaint.

If the court thought that, under the Acts of Congress, the State of Wisconsin took the legal title to the land, then, having granted the lands to the railroad companies named in the Acts referred to in the record, the title became vested in said companies and there remains; unless, upon non-performance of the conditions within the time limited, there was a reverter, in which case the title did not revert to and stop in the State, but returned to and now remains in the United States, the original grantor.

The court below, during the trial of this action (see Schulenberg v. Harriman, 2 Dill., 402), ruled that the legal title to the lands named in the above entitled Acts was, by virtue thereof, in the State of Wisconsin; or in other words, that there was a grant in præsenti, which passed the legal title and the right of possession of the lands named to the State of Wisconsin.

Rice v. Railroad Co., 1 Black, 381, 17 L. ed., 154; U. S. v. Wiggins, 14 Pet., 334; Buyck v. U. S., 15 Pet., 215; O'Hara v. U. S., 15 Pet., 275; Glenn v. U. S., 13 How., 250; Kennedy v. McCartney, 4 Port., 141.

Messrs John C. Spooner, B. J. Stevens, P. L. Spooner and J. C. Sloan, for defendant in error:

Under the pleadings it was competent for the defendant to prove title in a stranger, and in that way to defeat the plaintiffs.

Dermott v. Wallach, 1 Black., 96, 17 L. ed., 50; Chandler v. Lincoln, 52 Ill., 74; Van Sant. Pl., 515; Bellinger v. Craigue, 31 Barb., 534; Robinson v. Frost, 14 Barb., 537; Davis v. Warfield, 38 Ind., 461; Kennedy v. Shaw, 38 Ind., 474; Stoddard v. Onondaga Conference, 12 Barb., 573; Houghton v. Townsend, per Marvin, J., 8 How. Pr., 442.

proprio vigore, pass to the grantee all the estate A legislative grant by Congress does of itself, which the United States had in the subjectmatter of the grant, except what is expressly excepted.

U. S. v. Percheman, 7 Pet., 51; U. S. v. Brooks, 10 How., 442; Lesseiur v. Price, 12 How., 59; Ladiga v. Roland, 2 How., 581; Godfrey v. Beardsley, 2 McLean, 412.

While the failure to construct the road is a breach of condition and a ground of forfeiture, the mere existence of a ground of forfeiture does not, ipso facto work a reverter or a devestiture of the title of the State; but that, after the breach, the State holds the lands against all the world except the United States.

2 Washb. Real Prop., 6; Nicoll v. N. Y. & Erie R. Co., 12 N. Y., 121; Ludlow v. N. Y. & H. R. R. Co., 12 Barb., 440.

This is true, even though the estate is on condition that upon such a contingency it shali be void. "In this case there must be an entry made after the condition is broken, to avoid the estate.

Shep. Touch., 140; Throgmorton v. Tracey, Dyer, 126; S. C., Plowd., 159; Perk., § 240. This precise question was passed upon in U. S. v. Repentigny, 5 Wall., 221, 18 L. ed., 627.

In Davis v. Gray, 16 Wall., 230, 21 L. ed., 456, this court, considering a grant upon condition subsequent (made by the State of Texas to a railway company), treats the grant as gov. erned by the common law rules applicable to such estates as between individuals.

In the unreported case of Warner v. Joy (s^e

21 L. ed., 537), decided in November, 1872, this court held that the grant to the Cherokees was still valid, notwithstanding the breach of essential conditions thereof, for the reason that the general Government had never claimed a forfeiture of the lands as a penalty.

The case of Rice v. The Railroad Company, 1 Black, 358, 17 L. ed., 147, is not an authority against the proposition we make; for in that case the Act making the grant provided that the title should not vest in the Territory of Minnesota, except by the construction of the road. The Act was repealed before the title ever vested in the Territory at all.

We submit that, at least as against trespassers upon these grants, the title of the State of Wisconsin is perfect.

Mr. Justice Field delivered the opinion of the court:

This is an action for the possession of per46*] sonal property, consisting of over sixteen hundred thousand feet of pine saw-logs claimed by the plaintiffs and alleged to be unlawfully detained from them by the defendant. The logs thus claimed were cut on lands embraced in an Act of Congress, approved June 3, 1856, entitled "An Act Granting Public Lands to the State of Wisconsin, to Aid in the Construction of Railroads in Said State." 11 Stat. at L., 20. That Act granted to the State, for the purpose of aiding in the construction of a railroad from Madison or Columbus, by the way of Portage City, to St. Croix River or Lake, between townships twenty-five and thirty-one, and from thence to the west end of Lake Superior and to Bayfield, every alternate section of land designated by an odd number for six sections in width on each side of the road, and declared that the lands thus granted should 47*1 *be exclusively applied to the construction of the road, and be subject to the disposal of the Legislature for that purpose and no other, and only in the manner following: that is to say, a quantity of land not exceeding one hundred and twenty sections, and included within a continuous length of twenty miles of the road, might be sold, and when the Governor of the State should certify to the Secretary of the Interior that any continuous twenty miles of the road were completed, then another like quantity of the land granted might be sold, and so from time to time until the road was completed; and if the road was not completed within ten years, no further sales should be made, and the lands unsold should revert to the United States.

The State of Wisconsin, by Act of its Legislature, accepted the grant thus made and assumed the execution of the trust. The route of the road was surveyed, and a map of its location was filed in the Land Office at Washington. The adjoining odd sections within the prescribed limits were then withdrawn from sale by the proper officers of the government, and certified lists thereof approved by the Secretary of the Interior were delivered to the State.

Subsequently, on the 5th of May, 1864, Congress passed another Act on the same subject, entitled "An Act Granting Lands to Aid in the Construction of Certain Railroads in the State of Wisconsin." 13 Stat. at L., 66. By its 1st section, additional land was granted to the State upon the same terms and conditions as those contained in the previous Act, for the

purpose of aiding in the construction of a railroad from a point on the St. Croix River or Lake, between townships twenty-five and thirtyone, to the west end of Lake Superior, and from some point on the line of that railroad, to be selected by the State, to Bayfield; and the time for the completion of the road, as *men- [*48 tioned in the previous Act, was extended for the period of five years from the passage of the last Act. The State, through its Legislature, also accepted this grant.

The road here mentioned, and which is a part of the road designated in the Act of 1856, has never been constructed, nor has any part of it been constructed, and Congress has not passed any Act since 1864, extending the time for its construction. Nor has Congress passed any Act, nor have any judicial proceedings been taken by any branch of the government, to enforce a forfeiture of the grants for failure to construct the road within the period prescribed.

By an Act of the Legislature of Wisconsin, of March 3, 1869, the Governor of the State was authorized to appoint competent persons as agents of the State, whose duty it was made to preserve and protect the timber growing upon the lands granted by the Acts of Congress, and to take into possession on behalf of the State any logs and timber which might be cut on or carried away frow those premises without lawful authority, wherever the same might be.

The defendant was appointed agent of the State under this Act, and as such agent he seized *the logs for which the present [*49 action is brought. The logs were, during the years 1870 and 1871, floated from the places where they were cut, down the River St. Croix into a boom at Stillwater, in the State of Minnesota, and were there intermingled with other logs, of similar character and marks, belonging to the plaintiffs, so that the particular logs cut on the lands granted to the State could not be distinguished from logs cut on other land. The evidence showed that the boom from which the defendants seized the logs in suit, was two and a half miles long and from one to three fourths of a mile wide, and contained about three hundred millions of feet of pine logs. The defendant, before the seizure, demanded of the plaintiff's the logs cut on the land granted, and the plaintiffs refused to deliver them.

It was stipulated by the parties that the plaintiffs were in the quiet and peaceable possession of the logs at the time of their seizure by the defendant, and that such possession should be conclusive evidence of title in the plaintiffs against evidence of title in 8 stranger, unless the defendant should connect himself with such title by agency or authority in himself, and that the seizure of the property by the defendant was, so far as the manner of making the same was concerned, valid and legal in all respects as though made under and by virtue of legal process, the evident object of the stipulation being to test the right of the parties to the property, independent of the manner of its seizure.

The defendant contends, in support of the seizure and of his right to the possession of the property:

1. That the Act of Congress of June 3, 1856, and the 1st section of the Act of May 5, 1864, passed the legal title to the lands designated