the common law. In the absence of such legislation the common law would have accomplished the same results. Twyne's case, 3 Coke, 80; S. C. 1; Smith, L. C., 1; Cadogon v. Kennet, Cowp., 434; Wheaton v. Sexton, 1 Amer. L. C. 68 (2d ed.); Hamilton v. Russell, 1 Cranch, 316; Wilt v. Franklin, 1 Binn., 514, 523; Hudnal v. Wilder, 4 McCord, 295.

It is not claimed that when the second assignment was executed, any creditor had acquired a lien upon the property covered by it.

That assignment is free from the vice which was fatal to its predecessor, and is valid. Conklin v. Carson, 11 Ill., 503; Clapp v. Smith, 16 Pick., 247; Merrill v. Englesby, 28 Vermont, 150; 2 Edw. Ch., 289. This proposition is so clear, upon reason and authority, that it would be a waste of time to discuss it.

None of the authorities relied upon by the counsel for the appellant are in conflict with this decision.

In one of them the assignee did not join in the execution of the second instrument, and it 535] did not appear that he had ever *assented to it. In the others, the creditors had interposed and intervening rights had attached to the property.

"It is a settled principle that a deed voluntary or even fraudulent in its creation, and voidable by a purchaser, may become good by matter ex post facto." 4 Kent, Com., 559; Phillips v. Thompson, 1 Johns. Ch., 136; Murray v. Riggs, 15 Johns., 571; Hone v. Woolsey, 2 Edw., Ch. 289; Prodgers v. Langham, 1 Sid.. 133; Thomas v. Jenks, Amer. L. C., 81.

The court below dismissed the bill. We think

the United States for the Northern District of California.

The appellant, Pedro Chaboya, on the 2d day of March, 1853, filed with the Board of Commissioners to settle private land claims in the State of California his petition to have confirmed to him two leagues of land in the County of Santa Clara, bounded as follows: On the north by the lands of José de Jesus Vallejo; on the east by the rancho of Antonio Suñol and the road from San José to the Valley; on the south by the Cañada *del Aliso (Colindante con), [*594 Don Flagencia Higuera; and on the west by the estuary.

With the petition were filed certain papers showing an application by Chaboya, in 1844, to Governor Micheltorena, for this land, and a reference by the Governor to the Prefect for the necessary information, under the Colonization Laws and the sub-Prefect's report.

There was also filed, as an exhibit, an incomplete espendiente relating to a totally different tract of land, all the parts of which bear date in the year 1839.

The commissioners rejected the claim, saying that no grant had ever issued, no proof was given of segregation of the land, none of possession, and none of cultivation. The case, however, was carried into the district court by appeal, and the appellant filed his petition in that court, in which, referring to his former petition before the Board of Commissioners for a more particular description of the land, he prays that their decree may be reversed and his title confirmed.

(See S. C. 2 Black, 593-598.)

Mexican claims affirmed.

Where, in a Mexican claim, it appears that the appellant never had any legal title to the land in question; that he never had any exclusive possession beyond five hundred acres alloted to him by the authorities of San José and confirmed by the decree of the district court, and such possession as he did have was subsidiary to the claim of the authorities of the pueblo and with recognition of their

rights; held, that such a decree should be affirmed. Submitted Feb. 4, 1863. Decided Feb. 23, 1863. PPEALS from the District Court of the United States for the Northern District of California.

A

The cases are stated by the court. Messrs. Henry Wilkins and H. P. Hepburn, for appellants.

Messrs. Edward Bates, Atty. Gen., John A. Wills and E. M. Stanton, for appellee.

Mr. Justice Miller delivered the opinion of the court:

These are appeals from the District Court of

the claimant lived, and to which alone he really set up any claim, was not described in the petition, but was that mentioned in the second espediente above alluded to, and was twenty miles distant from the land for which confirmation was asked. Under these circumstances the claimant was permitted by the court, on 15th of June, 1857, to file an amended petition, setting out these facts and a true description of the land claimed, which was called La Posa de San Juan Bautista.

After a large amount of testimony had been taken in reference to this last mentioned claim, and the case had come to a hearing, the court held that it had never been presented to the Board of Commissioners, and that the District Court had no jurisdiction as to that piece of land, and that it was then too late, under the Act of Feb. 19, 1851, ch. 10 (9 Stat. at L., 568), to present the claim anywhere.

court, and the record of the case up to this From this decree Chaboya appealed to this stage of the proceedings constitutes case No. 131 of our docket for the present term.

*But while this appeal was pending, [*595 the appellant procured the passage of an Act of Congress, approved April 25, 1862, ch. 60 (12 Stat. at L., 902), which authorized the District Court to hear and determine his claim to La Posa San Juan Bautista, in the same manner, and with the same jurisdiction, as if it had been duly presented to the Board of Land Commissioners. Accordingly, after taking further testimony, the case again came to a hearing before that court on the 6th of November, 1862, and a

decree was rendered rejecting the claim to all of | the tract of land, supposed to be about two square leagues, except five hundred acres of it, which had been allotted to him by the authorities of San José, and confirming to him that much of it.

From this decree he has also appealed to this court, and the record which has been brought up, being a complete transcript of the case from its commencement, constitutes case No. 288 of the docket of this term.

The appellant does not, in this court, claim that he has any right to the land described in his petition to the Board of Commissioners, as to which they decided against him; but he does insist that the last decree of the court deprives him of a very valuable tract of land, to which he thinks himself entitled.

The main fact on which he rests his claim in this case is his long continued possession of the land. There is no pretense that there was ever any grant of the land by the Mexican Government, and if the claim is to be confirmed, it must be upon the equity growing out of that possession and the circumstances connected with it. It is established by the testimony in the record, that Chaboya was residing in a house of very insignificant proportions, on some part of the tract, as early as the year 1837, and has continued so to reside to the present time. But it also appears that his right to reside there, and especially his right to any exclusive possesison or use of tract known as La Posa de San Juan Bautista, was matter of controversy from that early time between himself and the residents of the pueblo, of San José. These vil- | lagers claimed that the tract so named was a part of the ejidos or common lands of the pueblo, on which the cattle of all the pobladores or 596*] villagers had a right to range, and was particularly necessary to them on account of the water which it afforded. In his petition to the Governor asking a grant of this land, Chaboya alludes to his possession and to the resistance made to it by the residents of the pueblo, in these words:

dispatched it conformable to his solicitation, since the reclamation which the residents of the pueblo of the vicinity have made, and of which I verbally have informed you, have no other design than to remove Sir Chabolla from the place he has occupied for many years, on ac count of antipathy of previous arrangement, which absolutely are destitute of justice.

Notwithstanding, Your Excellency will act in the premises as you shall believe convenient. San Juan de Castro, 25th of May, 1839. JOSÉ CASTRO." *The foregoing papers were filed with [*597 the petition of claimant before the Board of Commissioners, and were all the documentary evidence so filed by him in relation to this tract of land. But in the progress of the case in the District Court, another paper was produced, and as it relates to this same matter of the possession and seems to have a close connection with those just mentioned, it may as well be inserted here. It is as follows:

"The citizen, Dolores Pacheco, justice of the peace of the pueblo of San José Guadalupe de Alvarado.

By superior order of the Señor Prefect of the First District, it is conceded to the citizen Pedro Chabolla that he inhabit the place named Posa de San Juan Bautista without building any house of foundation, and much less plant trees (plantar bienes raises) for the term of two years, subjecting himself to pay $6 annually, and he must assist in the work on bridge or any other by which he may be benefited. San José Gaudalupe de Alvarado, February 29th, 1840.

DOLORES PACHECO, PEDRO CHABOYA." Notwithstanding the report of the Prefect Castro, that the claimant ought to be excused from the usual procedure, by which we suppose he meant the procuring of an informe, that the land was vacant, the Governor did not issue a grant.

This petition was dated May 10, 1839, and the Governor having regard to this same matter of disputed possession, made the following order, which was indorsed on the margin of the petition: MONTEREY, May 20th, 1839. "Let the prefecture report on the present solicitation, arranging from hence that the interested party may be conserved in the possession in which he finds himself of the land solicited, as long as the suitable procedure is going on. (Signed) ALVARADO."

On the 25 May the Prefect reported as follows: "SIR: The petitioner ought to be excused from the usual procedure, since the prefecture in my charge has already taken and perhaps

We can give to this paper no other construction than a renunciation_by_Chaboya of any right to the possession of La Posa de San Juan Bautista, and a consent to occupy it for two years under the authorities of the pueblo, paying them $6 annual rent, and submitting to the terms which they chose to impose, to prevent him from acquiring any permanent possession or interest in the land.

There is nothing in the subsequent history of his occupation of the place to change [*598 the character of his possession. It is proved that while his cattle ranged over it, those of the residents of the village generally did the same.

On the contrary, there is strong evidence that this was his own construction of the character of his possession.

After the country came under the American Government, the authorities of San José determined to divide the ejidos or common lands of

the pueblo, including this tract, among its residents, and in doing so allotted to Chaboya, as his share, five hundred acres around his dwelling. He accepted the instrument in the nature of a deed made to him by the Alcalde, and had it recorded. He was shortly after taxed by the authorities of San José for the entire tract of La Posa de San Juan Bautista, and it is distinctly proved, by two witnesses, that he appeared before the proper officers to have the tax remitted, stating that he only claimed the five hundred acres allotted to him in the partition. The tax was accordingly reWe think these facts show, very clearly, that the appellant never had any legal title to the land in question; that he never had any exclusive possession, beyond the five hundred acres which was allotted to him by the authorities of San José, and confirmed by the decree of the district court; and that such possession as he did have was subsidiary to the claim of the authorities of the pueblo, and with recognition of their rights, and that the decree should be

mitted.

affirmed.

The decree of the District Court is affirmed, in both appeals.

Mr. Justice Davis delivered the opinion of the court:

This case is again before us. A motion is *now made by one of the defendants to [*529 dismiss the appeal, because there was no final decree in the meaning of the Act of Congress which authorizes this court to exercise appellate jurisdiction only by appeal, or writ of error from a final judgment or decree.

This is a suit in equity brought by Bronson & Soutter in the District Court of Wisconsin to foreclose a second mortgage, given by the La Crosse and Milwaukee Railroad Company, to secure a large issue of bonds. The Company being in arrears for interest, Bronson & Soutter sought the aid of a court of equity to enforce their trust. Numerous persons were made defendants, who had or were supposed to have liens, and the record, which has swelled to a printed volume of six hundred pages, shows the litigation to have been protracted and bitter. The bill was filed on the 9th day of December, 1859. A part of the defendants answered, which answers were replied to, and a pro confesso decree was taken as to those who did not answer; and the cause came on for final hearing on the 13th day of January, 1862. The court judicially ascertained that there was owing to

A decree that mortgaged premises should be sold at public auction by the marshal, unless the amount found due for arrears of interest, with taxed costs, should be paid before the day of sale, is final.

The right of appeal attached on the rendition of the decree; and the time limited in which an appeal could be taken, began to run from the date of the decree.

A cross-bill filed after the decree of foreclosure was made by lien creditors who were defendants in the original suit seeking to invalidate a prior lien set up by another defendant in his answer, cannot affect the foreclosure of the mortgage. The practice of filing a cross-bill after the original suit has been heard and its merits passed on, disapproved. If any defendants wished to have the equities between themselves settled, without instituting an original suit for that purpose, they should have applied to the court at an earlier stage of the litigation.

Argued Feb. 20, 1863. Decided Mar. 2, 1863. PPEAL from the District Court of the United States for the District of Wisconsin.

A

Motion to dismiss.

gage, the sum of $500,000 for principal, and $65,260.05 for interest, and decreed that the mortgaged premises should be sold at public auction by the Marshal, unless the amount found due for arrears of interest, with taxed costs, should be paid before the day of sale. | The equity of redemption was foreclosed, and it was ordered, if a sale should be made, that the purchaser should have possession, and that those who had control of the road should surrender the possession on production of the deed from the Marshal, with a certified copy of the order confirming the sale. It was also decreed, if the interest and costs were paid, that further default should be made in the payment of interproceedings should be staid until some future est, when, on petition, the court would found another order for a sale.

The litigation between Bronson & Soutter and the defendants, on any matter in which there was a joint interest, is closed by this decree. The object of the suit was to ascertain how much money was due on the security of the mortgage and to sell the *property un- [*530 less the amount was paid. The court did find what was due, and ordered a sale. The very purpose

of the litigation, which was initiated by Bronson & Soutter, was accomplished, and nothing remained for them to do, if they felt aggrieved by the finding of the court, but to appeal. Their right of appeal attached on the rendition of the decree, and the time limited

Messrs. J. M. Carlisle and T. Ewing, in opposition thereto.

(See report of motion to intervene at preceding day of this term, and of the final discussion of the case at the next term.)

NOTE.-What is "final decree" or judgment of state or other court from which appeal lies-see notes, 5 L. ed. U. S. 302; 17 C. C. A. 238; 28 C. C. A. 482; 32 C. C. A. 475.

from the date of the decree. It is said that some exceptions to the report of the master were pending and undetermined when this decree was made; but those exceptions did not relate to any claim of Bronson & Soutter; they were collateral to the main purpose of the suit, and concerned the defendants alone.

If Bronson & Soutter should have to sit quietly by until the equities of the different lien creditors of the La Crosse & Milwaukee Rail

359