Cited in dissenting opinion in Kahn v. Old Tel., etc., Co., 2 Utah, 208, majority holding that patent could not be attacked in ejectment by owner of equitable interest, unless void on its face; Rutledge v. Murphy, 51 Cal. 400, majority refusing to review land office's finding of fact or to declare patentee a trustee for pre-emption claimant; Chapman v. Quinn, 56 Cal. 282, refusing to declare patentee trustee of legal title for one whose claim was never recognized by land office.

Distinguished in Stark v. Starrs, 6 Wall. 418, 419, 18 L. 929, 930, refusing to quiet a title against defendant, where plaintiff was a mere possessor having established no title; Gibson v. Chouteau, 13 Wall. 102, 20 L. 537, holding legal title, under Federal patent, would prevail in ejectment; Hartman v. Warren, 76 Fed. 163, 40 U. S. App. 245, holding bill to divest patentee of legal title, by one not in privity with government, and whose rights were acquired subsequently to patentee's entry, not maintainable; Chapman v. Quinn, 56 Cal. 275, refusing to decree conveyance of legal title by patentee to one whose right had never been recognized by the government; Aurrecochea v. Sinclair, 60 Cal. 545, refusing to declare patentee trustee for holder of void location certificate, failing to allege that he was bona fide purchaser of lieu land, or that land originally selected had been lost to State; Roberts v. Gebhart, 104 Cal. 69, 37 Pac. 783, refusing relief to purchaser of lieu land, selection of which was cancelled without sufficient reason by land office, because of laches in allowing homestead entry to be perfected; Bisson v. Curry, 35 Iowa, 78, allowing defendant to question validity of plaintiff's patent title by way of equitable defense, setting up equities of a prior pre-emptioner; Hosky v. Moran, 21 Mont. 361, 53 Pac. 1069, holding owner of placer location estopped by laches from attacking patentee's grantee's title; Headley v. Coffman, 38 Neb. 72, 56 N. W. 702, holding entryman, whose certificate had been cancelled, whether rightfully or not, could not maintain ejectment against patentee.

Public lands. Where a certificate of entry is illegally vacated and a patent wrongfully issued to another claimant, a conveyance of the legal title by the latter will be decreed; the Supreme Court will inquire into the facts of the disputed entry and has jurisdiction to set aside or correct the decision of the register, or receiver, or other officers of the land office, their adjudications not being conclusive, pp. 557-559.

Cited with approval and principle applied in Minnesota v. Bachelder, 1 Wall. 115, 17 L. 553, ruling similarly as in main case; United States v. Commissioner, 5 Wall. 565, 18 L. 693, refusing to mandamus commissioner of land office to issue patent, relator's remedy being by bill in equity; Silver v. Ladd, 7 Wall. 224, 19 L. 140, holding patent issued to defendants, after wrongful cancellation of plain

76, 59 U. S. App. 467, sustaining writ of error, where bill of exceptions was presented within the term, but not settled until after its expiration; Hume v. Bowie, 148 U. S. 253, 37 L. 440, 13 S. Ct. 584, where term was extended for purpose of settling bill, and trial judge died, appeal from order granting new trial was dismissed; Che Gong v. Stearns, 16 Or. 222, 17 Pac. 873, awarding mandamus directing trial judge to settle bill of exceptions which he refused to sign because term had expired. Cited in dissenting opinion in Ins. Co. v. Boon, 95 U. S. 137, 24 L. 401, majority considering assignment of error as to special findings, though no exception taken at trial.

Distinguished in Marine City, etc., Co. v. Herreshoff Mfg. Co., 32 Fed. 825, refusing to sign bill of exceptions presented eight months after trial; Johnson v. Garber, 73 Fed. 526, 43 U. S. App. 107, refusing to consider exceptions to charge not taken at trial, according to practice of court considering such exceptions to have been taken; Merchants' Exch. Bk. v. McGraw, 76 Fed. 936, 48 U. S. App. 66, refusing to consider exceptions to charge taken after jury retired to deliberate; Locke v. United States, 2 Cliff. 583, F. C. 8,442, holding general exceptions to evidence not appearing to have been taken at trial, not sufficient. Distinguished in dissenting opinion in Bram v. United States, 168 U. S. 571, 42 L. 583, 18 S. Ct. 198, majority holding exception to conversation as not a voluntary confession, sufficiently noted.

Public lands.- Where an elder patentee takes his patent subject to a confirmed title, the latter prevails independently of any adverse possession, p. 568.

Adverse possession.- A patent to land to which another has an inchoate right of entry, is a sufficient claim of title to support a seven years' possession under the Illinois statute, and after such possession the right of entry is lost, pp. 569–570.

Cited in Silver Bow, etc., Co. v. Clark, 5 Mont. 419, 420, 5 Pac. 578, 579, reviewing many cases, holding patent to town site, including a mining location, void.

Distinguished in King v. Thomas, 6 Mont. 413, 12 Pac. 867, holding town site patent, reserving mining claims, not sufficient claim of title to start statute of limitations in favor of patentee.

Adverse possession. A reservation in the patent, making possession thereunder subject to possible confirming of another title, does not make the possession subservient, or prevent its being adverse, but merely exonerates the United States from liability to the patentee, because of a superior title, p. 570.

Distinguished in King v. Thomas, 6 Mont. 413, 12 Pac. 867, holding patent to town site, expressly reserving mining claims, not suffi cient to start statute of limitations as against mining claim locator.

2 Black, 571-574, 17 L. 256, KELLOGG v. FORSYTH.

Exceptions, bill of.- Exceptions taken at the trial may be drawn out in form and signed by the judge afterwards, p. 573.

Cited with approval and principle applied in So. Pac. Co. v. Hamilton, 54 Fed. 474, 7 U. S. App. 626, allowing writ of error where bill of exceptions was settled after time prescribed by rule; dissenting opinion in Ins. Co. v. Boon, 95 U. S. 137, 24 L. 401, majority considering assignment of error as to special findings, though no exception taken at trial.

Distinguished in Marine City, etc., Co. v. Herreshoff Mfg. Co., 82 Fed. 825, refusing to sign bill of exceptions presented eight months after trial; Johnson v. Garber, 73 Fed. 526, 43 U. S. App. 107, refusing to consider exceptions to charge not taken at trial, because of practice of court, considering such exception to have been taken.

Public lands — Peoria lots. The cases of Bryan v. Forsyth (19 How. 334, 15 L. 674), Meehan v. Forsyth (24 How. 175, 16 L. 730), and Gregg v. Tesson (1 Black, 150, 17 L. 74), affirmed and followed, pp. 573-574.

2 Black, 574–575, 17 L. 257, CONGDON, ETC., CO. v. GOODMAN. Supreme Court has no jurisdiction on error to State court, where plaintiff claims adversely to an act of Congress, and the issue is upon validity of a sale and lease under State law, p. 575.

Not cited.

2 Black, 575-581, 17 L. 258, RUSSELL v. ELY.

Trial. It is for the court in jury trials to construe written instruments, and if a deed on its face shows legal title in a plaintiff, the court must so instruct the jury, p. 577.

Deeds made in Wisconsin, to lands in that State, are construed by Wisconsin laws, pp. 577-578.

Courts.- Expositions by Wisconsin courts, of Wisconsin statutes relating to mortgages, are followed by Federal court as rules of construction, p. 578.

Mortgages.-In Wisconsin, legal title does not vest in mortgagee until after foreclosure and sale, p. 578.

Cited with approval in Howard v. La Crosse, etc., R. R., Woolw. 57, F. C. 6,760, holding successor of mortgagor entitled to possession of railroad, as against a receiver. Cited, ex exemplo, in Witherell v. Wilberg, 4 Sawy. 235, F. C. 17,917, holding that in Oregon a mortgage is merely a security, and the fee and right of possession is in the mortgagor. Cited in dissenting opinion in Johnson v. Cornett, 29 Ind. 63, majority holding assignment of mortgage by mortgagee, without assignment of debt, passed no estate.

Distinguished in Swain v. Seamens, 9 Wall. 270, 19 L. 559, holding agreement to surrender mortgage for insurance policies is agreement surrendering an interest of lands, within the statute of frauds; Edwards v. Wray, 11 Biss. 253, 12 Fed. 44, holding that by parol agreement mortgagee could take possession and collect rents.

Mortgages. A mortgagee who obtains possession by arrangement with mortgagor's tenant after lease expired, is not lawfully in possession, and can be ejected by mortgagor, p. 579.

Cited and principle applied in Bennett v. Austin, 81 N. Y. 316, holding attornment by mortgagor's tenant to mortgagee, unauthorized and invalid; Witherell v. Wiberg, 4 Sawy. 238, F. C. 17,917, holding mortgagee must show assent of mortgagor to his possession, in order to defend an action for the possession; Howard v. The La Crosse, etc., R. R. Co., Woolw. 57, F. C. 6,760, holding mortgagor's successor entitled to possession, as against receiver. Inaccurately applied in dissenting opinion, Johnson v. Cornett, 29 Ind. 63, majority holding assignment of mortgage by mortgagee, without assignment of debt, passed no estate. Cited, arguendo, in Davis v. Flagg, 44 N. J. Eq. 112, 114, 13 Atl. 259, holding mortgagee not liable, as such, for rents and profits, where his possession is taken under separate bond.

Distinguished in Madison Av. Bap. Ch. v. Oliver St. Bap. Ch., 73 N. Y. 94, holding mortgagee in possession with consent of mortgagor, may retain possession after default, until debt is paid; Boggs v. Douglass, 105 Iowa, 347, 75 N. W. 186, holding judgment creditor in possession cannot apply rents to his judgment to detriment of defendant's co-tenant.

Trial. An instruction that if the testimony of a witness was true, then a deed passed title to one of the parties, where such conclusion was clear, is not error, p. 580.

Appeal and error.- Where a bill of exceptions contains an objection to an instruction allowing a jury to find certain facts from testimony, which is not embodied in toto in the bill, the instruction will be presumed to have been justified, p. 580.

Cited in Tweed's case, 16 Wall. 517, 21 L. 393, sustaining instruction assuming facts, not disproved by bill of exceptions, and insufficient basis for which, not shown.

Appeal and error.- A deposition printed in the record, but not incorporated in the bill of exceptions, nor made part of the case by reference, will not be considered, pp. 580-581.

Cited and followed in Reed v. Gardner, 17 Wall. 411, 21 L. 665, refusing to look beyond the bill of exceptions, containing charge and requests and refusals, or to consider appeal on evidence in the transcript, but not in the bill; Southwestern Va. Imp. Co. v. Frari, 58

Fed. 173, 8 U. S. App. 444, refusing to consider bill of exceptions to instructions based on evidence found in another part of the record; Rosenthal v. Chisum, 1 N. Mex. 635, 639, refusing to consider bill of exceptions to admission of evidence not set forth in the bill; Shrewsbury v. Miller, 10 W. Va. 125, affirming judgment on presumption of its correctness, where it was not affirmatively shown to be incorrect.

2 Black, 581-584, 17 L. 263, THE SHIP POTOMAC.

Admiralty. Reaffirming the ruling in The Steamer St. Lawrence, 1 Black, 525, 17 L. 182, that the Federal courts have jurisdiction to enforce a lien for repairs to ship, created by State statute, and attaching prior to amendment, in 1859, of admiralty rule 12, p. 583.

Cited and relied upon in The Glide, 167 U. S. 614, 42 L. 299, 17 S. Ct. 933, holding enforcement of statutory lien for repairs and supplies to vessel, within admiralty jurisdiction of Federal courts; The Pawashick, 2 Low. 151, F. C. 10,851, taking jurisdiction in admiralty over libel by British shipmaster against British ship, for his wages; Ayer v. Steamer Glaucus, 4 Cliff. 168, F. C. 683, examining decree of lower court on its merits, in libel for collision.

Appeal and error.- A general objection to a judgment, based on a master's report, finding an amount due for work and labor, may be treated as frivolous; if dissatisfied, the respondent could have had the report referred back to the master, to state an account, and object specifically to the items, pp. 583-584.

Cited in Sturges v. Carter, 114 U. S. 523, 29 L. 244, 5 S. Ct. 1020, sustaining judgment based on auditor's assessment.

Appeal and error.- - Supreme Court will not reverse a judgment for work and labor done, based on the evidence of the libellant's shop-books, as opposed to ex parte testimony of experts after the work was completed, p. 584.

Appeal and error.- Judgment of a lower court, based on a master's report, is presumed correct, and will not be reversed where. so far as the record shows, it may be either right or wrong, p. 584.

Cited with approval, and principle applied, in Sturges v. Carter, 114 U. S. 523, 29 L. 244, 5 S. Ct. 1020, sustaining judgment for taxes, based on auditor's assessment, not proven incorrect; Shrewsbury v. Miller, 10 W. Va. 122, affirming judgment, where judgment was not affirmatively shown erroneous.

Admiralty.-A libellant suing for work and labor done on vessel, need not join his partner, who was not a party to the contract, p. 584.