[164] [165] of that firm remained in the employment of plaintiff, as clerks or salesmen, at a fixed monthly compensation. This was in pursuance of an understanding with the plaintiff at the time of the sale; their knowledge of the business and their acquaintance with customers being regarded by it as important in the disposition of the property. Plaintiff also retained in its employment others who had been clerks for Webb & Co. While the latter thought they had been unduly pressed by Hayner & Co., and for that reason did not at the time of the sale feel as kindly towards them as towards other creditors, and intended by the sale to give a preference to other creditors over Hayner & Co. (of which fact plaintiff was informed at the time of its purchase), they had no purpose to hinder and delay Hayner & Co. in the collection of their debts, except as that result was involved in their giving preference to the plaintiff; nor had plaintiff any purpose, in the whole transaction, except by means of the purchase to secure its own debt. The evidence discloses a race of diligence between creditors, who knew the failing condition of their common debtors, and knew that the latter had the right to make a preference among them. The defendants, in their answer, charge that the alleged purchase by plaintiff was pursuant to a combination and conspiracy between it and the firm of John A. Webb & Co., whereby a pretended sale was to be made with a secret reservation of an interest in the vendors beyond what was necessary to discharge plaintiff's claim against them; in other words, that there was a purpose and design on the part of the vendors and the vendee, to put the property of the debtors in such condition that plaintiff would be secured while Webb & Co. held at bay other creditors whom they did not intend to prefer, particularly, Hayner & Co., and thus hinder and delay them in the collection of their demands. It is contended that the charge of combination and conspiracy was established by various declarations and statements of John A. Webb, and of Spaulding, the plaintiff's agent, made after the sale of the 13th of March, 1882. To the admission of these declarations and statements as evidence the plaintiff objected. Its objection was overruled, and exception was taken in proper form to the action of the court. The competency of that evidence is the principal question to be determined. We are of opinion that the court below erred in allowing the defendants to introduce proof of these declarations and statements made after the sale. The instruction to the jury upon this point was in these words: "That it is true, as contended by the plaintiff, that if the sale, when made, was not vitiated because of fraud, and the sale was one that passed the title to the plaintiff as against the creditors of Webb & Co., then no act or declaration of the Webbs or that of Spaulding, afterwards made, could affect plaintiff's right to have and hold the property. Evidence of what was said and done afterwards by the person in possession and in charge of the goods has been admitted, with a view to ascertain the true character of the sale when made, and can only be considered with reference thereto." The jury must have understood, from this language, that they were at liberty, in ascertaining the true character of the sale when made, to find that plaintiff partici pated in the fraud charged, if the statements of John A. Webb and of Spaulding after the sale justified that conclusion. But such is not the law. Webb & Co. were not in possession, within the meaning of the rule announced in some cases that permits, in favor of creditors, proof of the declarations of a vendor of personal property, who is allowed, after sale, to control, manage and dispose of it just as he had before done. They were not, in any legal sense, in possession after March 13, 1882. The plaintiff was itself in actual possession, exercising by its agent full control. The vendors, it is true, entered plaintiff's service as soon as the sale was made and possession was surrendered; but only as clerks or salesmen, with no authority except such as employees of that character ordinarily exercise. What they might say, not under oath, to others, after possession was surren dered, as to the real nature of the sale, was wholly irrelevant. They were competent to testify under oath, and subject to cross examination, as to any facts immediately connected with the sale, of which they had knowledge; but their statements out of court, they not being parties to the issues to be tried, were mere hearsay. After the sale, their interest in the property was gone. Having become strangers to the title, their admissions are no more binding on the vendee than the admissions of others. It is against all principle that their declarations, made after they had parted with the title and [1 surrendered possession, should be allowed to destroy the title of their vendee. It is, however, insisted that Webb's declarations after the sale were admissible in support of the charge of combination or conspiracy to defraud the defendants, Hayner & Co., and other creditors. Without extending this opinion by a review of the adjudged cases in which there was proof of concert or collusion between vendor and vendee to defraud creditors, and in which the subsequent declarations of the vendor were offered in evidence against the vendee to prove the true character of the sale, it is sufficient to say that such declarations are not admissible against the vendee, unless the alleged common purpose to defraud is first established by independent evidence, and unless they have such relation to the execution of that purpose that they fairly constitute a part of the res gesta. There was no such independent evidence in this case, and there is no foundation for the charge of a conspiracy between the vendors and the vendee to hinder creditors outside of certain statements which Webb is alleged to have made after his firm had parted with the title and surrendered possession. It is argued that these subsequent declarations of Webb were competent for the purpose of contradicting him as a witness in behalf of the plaintiff, by showing that he had made statements out of court different from those made as a witness in behalf of the plaintiff. No foundation was laid for any such use of those declarations. Besides, if any such foundation had existed, the court should have instructed the jury that in determining, between the parties to the record, the true character of the sale, the subsequent declarations of Webb MOWER V. FLETCHER. were competent, only as impeaching his credibility as a witness. It is also contended that the declarations and admissions of Spaulding, the plaintiff's agent, in controlling and disposing of the property, were evidence against the plaintiff. But this position cannot be sustained. What Spaulding and the Webbs did, in and about the management of the property after the sale, could be proven if it served to explain the nature and extent of plaintiff's possession. It was for the rary to say whether there was a real change of possession and control. But nothing that Spaulding said, after the sale, to others, was competent upon the issue as to the character of the sale; that is, whether it was made in good faith, or with the intent on the part of Webb & Co. and the plaintiff to hinder and delay creditors. Spaulding was plaintiff's agent to control and manage the property. It was not within the scope of his agency to make admiss or declarations as to the circumstances crder which, and the purpose for which, the Flaictiff bought the property. Such admisces or declarations are only recitals of the deas or circumstances of a past occurrence, and are not proof of the existence of the occurrence. They constitute, in their once, hearT evidence, 380-386 Messrs. James K. Reddington, and M. Mr. Chief Justice Waite delivered the opinion of the court: The federal question in each of these cases is the same, and it arises on the following facts: By the Act of March 3, 1853, 10 Stat. at L. 244, chap. 145, to provide for the survey of the public lands in California, the granting of preemptions therein, and for other purposes," sections 16 and 36 of the public lands in each township, surveyed or unsurveyed, were granted to the State "for the purposes of public schools." By section 7 it was provided that if section 16 or section 36 in any township should be taken by a private claim other lands might be selected in lieu by the proper authorities of the State. A plat of the survey of township 2 south, range 13 west, San Bernardino meridian, was filed in the United States land-office at San Francisco, April 22, 1868, and on the same day the State's locating agent selected S. N. W. and N. S. W., sec. 32, in that township, in lieu of S. E. sec. 36, T. 4 S., R. 4 W., same meridian, "claimed to be within a Mexican or Spanish grant." In the case to which Fletcher alone is defendant in error it is found as a fact "that at the time of making said application and selection the S. E. of sec. 36*** was and has been ever since and is now in place, and is the property of the State of California, and has never been under the claim of any confirmed and finally surveyed Mexican or Spanish grant." In the other case there is no finding on this subject, but it is found "that at the time of said selection and location the owners of the Rancho Sausal Redondo claimed that said (selected) James H. McKenney, Clerk, Sup. Court, U. S. According to the findings in the last case the lands were within the limits of said rancho." We are of opinion, upon the whole case, at the jury were misdirected as to the law of the case, by those portions of the charge which wed them to consider as evidence the subent declarations or admissions of Webb and Spaulding, in respect to the true character nature of the sale to plaintiff. The judgment is reversed, with directions to the verdict and award a new trial. Trae copy. Test: B. W. MOWER, Piff. in Err., NATHAN FLETCHER AND JOHN D. BICKNELL. SAME. NATHAN FLETCHER. See 8. C. Reporter's ed. 380-386.) The to licu school lands in California-preemption-confirmation. dispute between the United States and the claimants of the rancho seems to have continued until about March 22, 1875, when a survey was finally approved that excluded the selected lands from the grant, and a patent was issued according to this survey. The lieu selection as made by the agent was duly certified by the Commissioner of the General LandOffice and the Secretary of the Interior to the State, November 23, 1871, and the land selected Squiers, October 20, 1875, who had bought was patented by the State to Elmore W. from the State a long time before. The title If the proper officers of the United States apthus acquired by Squiers afterwards passed to Te & selection of lieu school lands, the school the defendant in error Fletcher, who, on the was being in disputed territory outside the 20th December, 1875, entered into a contract fan unsettled survey by the United States with Mower, the plaintiff in error, for the sale rate claim, and issue the proper certificate want the of the W. of the S. W. of the N. W., 20 son of the land and improves, culti- acres, for $1,000, of which $500 was paid in 5 list no one by forcibly or surrep-hand, and for the balance Mower gave his note tim to possession can make a pre-payable eighteen months after date, with intertement which will defeat his title. 47 of March 1, 187, confirmed the title of est at the rate of 1 per cent per month, taking tate of Cornia to the lands in question; and back from Fletcher an agreement for a conveyfrmation inured to the benefit of those ance of the land on payment of the note. Ununder the State. der this contract Mower took possession of the land he bought, and on the 12th of March, 1876, made and filed with the register of the proper [Nos. 102, 103], Ice of California. land-office a declaratory statement of his inten [381] tion to claim under the preemption laws the try and facts of the case sufficiently in the opinion of the court. Ya W. J. Johnston, U. J. Baxter bought from Fletcher. Barter, for plaintiff in error. [382] [383] [384] tion by the State was invalid. The supreme court decided that Mower acquired no right to the possession by his atttempt at a preemption settlement, and gave judgment accordingly. To reverse that judgment the writ of error in Mower v. Fletcher & Bicknell was brought. ceiver of the proper land-office proof of his | twenty acres sold by Fletcher to him. To this On the first of March, 1877, Congress passed an Act "relating to indemnity school selections in the State of California," 19 Stat. at L. 267, chap. 81. Section 2 of that Act is as follows: "Sec. 2. That where indemnity school selections have been made and certified to said State, and said selection shall fail by reason of the land, in lieu of which they were taken, not being included within such final survey of a Mexican grant, or are otherwise defective or invalid, the same are hereby confirmed, and the sixteenth and thirty-sixth sections, in lieu of which the selection was made, shall, upon being excluded from such final survey, be disposed of as other public lands of the United States; Provided, That if there be no such sixteenth and thirty-sixth sections, and the land certified therefor shall be held by an innocent purchaser for a valuable consideration, such purchaser shall be allowed to prove such facts before the proper land-office, and shall be allowed to purchase the same at one dollar and twenty-five cents per acre, not to exceed 320 acres for any one person; Proried, That if such person shall neglect or refuse, after knowledge of such facts, to furnish such proof and make payment for such land, it shall be subject to the general land laws of the United States. Section 3 declares that the confirmation shall not extend to lands settled upon under the homestead or preemption laws, "Provided, That such settlement was made in good faith upon lands not occupied by the settlement or improvement of any other person, and prior to the date of certification of said lands to the State of California by the Department of the Interior." Mower having neglected to pay his note when, it fell due, Fletcher, on the 2d of August, 1877, after tendering a deed for the land, brought suit for the recovery of the money. Mower answered, setting up a failure of title to the land and therefore a want of consideration for the note. The supreme court held that Fletcher had good title, and gave judgment for the amount of the note and interest. To reverse that judgment the writ of error in the suit of Mower v. Fetcher was brought. On the 24th of April, 1879, Fletcher and Bicknell, who held title under the patent to Squiers, brought suit to recover possession and quiet their title to the part of the lands upon which Mower had entered, not included in the cer All questions of mere irregularity in the selection of lieu lands by the State, and in the grant by the State to Squiers, were conclusively settled, so far as the parties to this suit are concerned, by the issue to the State of the lists, certified by the Commissioner of the Land-Office and the Secretary of the Interior, and by the patent from the State to Squiers. Frasher v. O'Connor, 115 U. S. 102 [ante, 311]. By an Act of August 3, 1854, 10 Stat. at L. 346, chap. 201, it was provided that where a law granting lands to the States or Territories does not convey the fee-simple title, "lists of such lands * * * tified by the Commissioner of the General LandOffice, under the seal of his office, either as originals, or copies of the originals or records, shall be regarded as conveying the fee simple of all the lands embraced in such lists that are of the character contemplated by such Act of Congress, and intended to be granted thereby but where lands embraced in such lists are not of the character embraced by such Acts of Congress, and are not intended to be granted thereby, said lists, so far as these lands are concerned, shall be perfectly null and void, and no right, title, claim or interest shall be conveyed thereby." This statute is now section 2449 of the Revised Statutes. In the argument for the plaintiff in error it was contended that this S. E. of section 36 was not actually within the limits of any Mexican claim when the lieu selection was made, and that consequently the certified list conveyed no title. It is found as a fact in the case of Mower v. Fletcher that when the selection was made the S. E., section 36, "was, and has been ever since, in place, and is the property of the State of California, and has never been under the claim of any confirmed and finally surveyed Mexican or Spanish grant." This is not inconsistent with the fact that when the selection was made the land was within the limits of an unconfirmed Mexican claim, the boundaries of which had not been fixed by a final survey The finding that the S. E. of section 36 is the property of the State is not, under the circumstances, the equivalent of a finding that it was the undisputed property of the State when the lieu selection was made. Such being the case, we are at liberty to presume it was as represented, within the claim of a Mexican grant when the selection was made and certified. As in the case of Mower v. Fletcher & Bicknell there is no finding on the subject, the same presumption arises there. In Frasher v. O'Connor it was decided that the survey made in 1868 of the Sausal Rancho Redondo was sufficient to authorize the State to select, under its various grants, lands outside of the then surveyed boundaries, subject, of course, to a defeat of title if in the end the survey as made should be set aside and the boundaries of the grant finally extended so as to in clude the selections. WEBB V. BARNWALL. This was because by section 8 of the Act of July 23, 1866, 14 Stat. at L. 220, chap. 229, it was provided that "all land not included in such grant as so set off shall be subject to the general laws of the United Staics". As the survey finally made fixed the boundaries so as to exclude the selected lands, the title of the State related back to the selection, and this inured to the benefit of Squiers under his patent from the State. ㄨ The question still remains, however, whether, if school selections are found in disputed territory outside the limits of an unsettled survey by the United States, of a private claim, the State must wait until the boundaries are finally fired before it can get its lieu lands. Without determining whether, if lieu lands are selected and certified under such circumstances, the United States can reassert title when it is finally scertained that the school sections were not covered by the claim, we have no hesitation in aring that if the proper officers of the United States approve such a selection and issue the proper certified lists, and a purchaser under such a title enters into the possession of the and and improves, cultivates, and holds it, no e by forcibly or surreptitiously getting into possession can make a preemption settlement which will defeat his title. Atherton v. Fowler, U.S. 518 [Bk. 24, L. ed. 732]. As was said in that case, p. 519, [734] "The generosity by which Congress gave the settler the right of smemption was not intended to give him the benefit of another man's labor and authorize him to turn that man or his family out of his home. It did not propose to give its bounty to settle ets obtained by violence at the expense of others The right to make a settlement was to be exercised on unsettled land; to make imunimproved land. To erect a iling house did not mean to seize some other man's dwelling." provements on The disposes of the claim of preemption, and at being out of the way it is clear that the Act of March 1, 1877, confirmed the State's title made that of Fletcher good when the note of Mower to him fell due, and when he was b to convey under his contract. Tridement in each of the cases is affirmed. Troopy. Test: HN C. WEBB, Admr. of AMANDA A. D. 193-197 or his title held insufficient, where he was in pos- Argued Dec. 17, 1885. Decided Jan. 4, 1886. APPEAL from the Circuit Court of the United States for the Middle District of Alabama. The history and facts of the case appear in the opinion of the court. Messrs. Wm. E. Earle and H. A. Herbert, for appellants. Messrs. D. S. Troy and H. O. Tompkins, for appellees. Mr. Justice Miller delivered the opinion of the court: The bill of complaint brought by Amanda Sterling and her four sons against Barnwall and Gaynor, as assignees in bankruptcy, was dismissed on demurrer, solely, as appears from the opinion of the circuit judge, because the suit was barred by the limitation of suits by or against assignees in bankruptcy found in section 5057 of the Revised Statutes, to wit: "No suit, either at law or in equity, shall be maintainable in any court, between an assignee in bankruptcy and a person claiming an adverse interest, touching any property or rights of property transferable to or vested in such assignee, unless brought within two years from the time when the cause of action accrued for or against such assignee.' " The bill sets out that on the 5th day of February, 1873, Robert W. Smith was the owner of certain real estate in the Town of Selma, in the bill fully described; and on that day he and his wife Sarah conveyed the same to Čary W. Butt in trust for the use and benefit of said Robert W. Smith and Charles Walsh; that afterwards said Walsh and Smith, being indebted to Edwin A. Glover in the sum of $20,000, caused the trustee Butt to convey this real estate, in which they had the sole beneficial interest, to said Glover, who received the same in satisfaction of the debt August 31, 1873; that Glover thereupon entered into possession of said property, and that he and his devisees have retained such possession ever since; that, by the will of Glover, who died in 1874, the real estate in question was devised to Amanda Sterling and her sons, the complainants. The bill then alleges that Walsh and Smith were members of a copartnership with others, under the name of Walsh, Smith & Co., which owed the debt to Glover already mentioned as the consideration of the conveyance to him by Butt, the trustee; that said partnership and the individual members thereof, including Walsh and Smith, were declared bankrupts by the proper court on June 12, 1874, and that Henry pointed assignees in said proceeding, and all W. Barnwall and William E. Gaynor were apthe estate, both real and personal, of said bankrupts, was by the register duly assigned to them. The bill proceeds to show that these Bactute of Limilations — Bankruptcy Act-prac- against complainants, who were in possession assignees instituted an action of ejectment ZENRY BARNWALL, ET AL., Assignees in (See 8. C. Reporter's ed. 193–197.) tice. of the land under the will of Glover, to recover in equity to enjoin a judgment obtained that possession. This suit was begun in the bil against an assignee in bankruptcy Middle District of Alabama in October, 1876. 218 U.S. [193] [194] [196] cuit court, December 19, 1877. Complainants if Graham, the successful party in the judg The bill then alleges that while the complain- tect. This bill was filed August 1, 1881, within fifteen months after final judgment in the action of ejectment. The circuit court, treating the bill as an original bill and as the commencement of a new and independent suit, held that the period of limitation of such suits against the assignees began to run at the date of their appointment in 1874. The two years had, therefore, long been passed and the claim was barred. But if we assume, as appellants argue, that the occasion for a suit in equity did not arise until the final judgment at law, then the bill in this case was in time. We think the latter is the sound rule. Complainants were in possession under what they supposed to be a good title, until they were evicted or their title held to be insufficient; they had no occasion to seek to establish their title by a suit in equity, and such a suit they brought within the time of the statute after they ascertained that it was necessary to protect their possession. But if this were not so clear, it must be held in the courts of the United States, under previous decisions of this court, that the present bill in equity to enjoin the judgment at law, obtained on the mere legal title, while the equity is in the other party, is a continuation of that suit, and therefore the proceeding was commenced when the action of ejectment was brought. In the case of Simms v. Guthrie, 9 Cranch, 19 [13 U. S. bk. 3, L. ed. 642], Simms had obtained judgment in an action of ejectment in the circuit court on a patent from the State of Virginia against Guthrie. Thereupon Guthrie filed his bill in chancery in the same court setting up a superior equitable title by a prior entry to that on which Simms' patent had issued, and asking an injunction and a decree for the legal title. It was urged as an objection to this bill that there were necessary parties who could not be made defendants in the circuit court. But this court said that for omitting to bring in these parties an original bill might be dismissed. That, however, was a bill to enjoin a judgment in the circuit court, and the bill must be [197] brought in the same court, and the court would dispense with the parties who could not be brought in. In Dunn v. Clarke, 8 Pet. 1 [33 U. S. bk. 8, L. ed. 845], where an equitable title was set up by bill in chancery against a judgment at law recovered in a circuit court of the United States, the court said: "The injunction bill is not considered an original bill between the same parties as at law." It also said! In the case of Dunlap v. Stetson, 4 Mason, 549, Mr. Justice Story said: "I believe the gen eral, if not the universal practice has been to consider bills of injunction upon judgments in the courts of the United States, not as original but auxiliary and dependent suits, and prop erly sustainable in that court which gave the original judgment, and has it completely under control." This language is cited with approval and the point illustrated in the case of Jones v. Andrews, 10 Wall. 327 [77 U. S. bk. 19, L. ed. 935], and in Christmas v. Russell, 14 Wall. 69 [81 U. S. bk. 20, L. ed. 762]. The case before us comes precisely within the principle of these decisions. The bill in chancery is a continuation of the litigation commenced by the action at law, and its object is to enjoin the judgment in that suit and to correct its injustice by an equity proceeding in the same court. The bar of the statute as to this relief cannot become perfect until two years of inaction have justified a plea of that kind. The decree of the Circuit Court is therefore reversed and the case remanded to that court, with directions to overrule the demurrer, and for such further proceedings as to equity belongs. True copy. Test: James H. McKenney, Clerk, Sup. Court, U. 8. JOSEPH F. FIELD, Appt., v. OLIVER DE COMEAU ET AL. (See S. C. Reporter's ed. 187–190.) Patent law-construction. Letters patent, No. 155077, for an improvement in glove fastenings, is not infringed by a spring fas tent not being for a combination of springs in tening which acts in a different manner; said paevery form for closing the wrists of gloves. [No. 84.] Submitted Dec. 7, 1885. Decided Jan. 4, 1886. PPEAL from the Circuit Court of theUnited York. The history and facts of the case sufficiently appear in the opinion of the court. Mr. Eugene N. Ell ot, for appellant. Mr. Justice Matthews delivered the opinion of the court: The appellant, who was complainant below, filed his bill in equity to restrain an alleged infringement by the appellees of letters patent No. 155077, for an improvement in glove fas tenings issued to him September 15, 1874. The bill was dismissed at the hearing on the ground that the defendants had not infringed. |