Opinion of the Court. "And the court orders and decrees that the liability of the defendant, the Guarantee Company, is secondary to that of John Schardt's estate; and that the bank or its assignee shall account for all collections realized on assets or collaterals turned over to the bank by said Schardt to reimburse it against his shortage, which it has collected, or with due diligence may collect hereafter; and for his fitness, and for convenience, H. M. Doak is appointed master commissioner to report the same to the next term of this court; and the court orders that the same be applied to the shortage of said Schardt in the order in which the same occurred, and in the meantime no execution will issue against defendants for the same, but only for the costs; and the court orders that this cause may be continued upon the docket of this court, for the purpose only of making any orders necessary to apply all collections from the assets of Schardt, held as collateral, in exoneration, to that extent, of the defendant company and of substituting the defendant to the rights of the bank, in case the recovery herein is collected or paid and any of said assets remain above the amount necessary to satisfy the shortage. But the case is retained for no other purpose, and the decree against defendant company is final as fixing its liability on the bonds to make good the shortage, whatever that may be. This decree is entered in lieu of one entered at a former day of the term and the decree formerly entered is hereby vacated." 68 Fed. Rep. 459. Upon appeal prosecuted by the Guarantee Company to the Circuit Court of Appeals the decree was affirmed. 54 U. S. App. 108. The case is here upon writ of certiorari. The Circuit Court of Appeals was without jurisdiction to review the decree of the Circuit Court because that decree was not a final one. 26 Stat. 826, 828, c. 517, § 6. The Circuit Court disallowed all of the defences made by the Guarantee Company and adjudged that upon the showing made that company was primarily liable to the extent of the penalty of each bond, with interest. But the liability of the defendant company was held to be secondary to that of Schardt's estate which was in course of administration, and Opinion of the Court. the amount for which it could be held finally liable on execution was left to be ascertained by a master commissioner who was directed to take into account "all collections realized on assets or collaterals turned over to the bank by Schardt to reimburse it against his shortage," or which the bank “with due diligence may collect hereafter;" and the case was retained for the purpose of fixing the amount of this ultimate liability to make goòd Schardt's shortage, "whatever that may be." In effect, the Circuit Court only determined that none of the defences were good in law, and that the Guarantee Company was liable on its bonds for such sum as might thereafter be found to be due after crediting the amounts that might be realized from the assets turned over to the plaintiff bank by Schardt. Notwithstanding the company's defences were adjudged to be bad in law, it remained for the Circuit Court by proper orders to accomplish the object of the suit, namely, to ascertain the amount for which the plaintiff was entitled to judgment and execution. When that amount is judicially ascertained and fixed by a final decree, the adjudication of the cause will be completed for all the purposes of an appeal; and if the decree be affirmed the Circuit Court will then have nothing to do but to carry it into execution. Railroad Co. v. Swasey, 23 Wall. 405, 409; Green v. Fisk, 103 U. S. 518, 519; Dainese v. Kendall, 119 U. S. 53, 54; Lodge v. Twell, 135 U. S. 232, 235. The decree of the Circuit Court of Appeals affirming the judgment of the Circuit Court is reversed for want of jurisdiction in the former court, and the cause is remanded with directions to dismiss the appeal prosecuted to that court, and for such further proceedings in the Circuit Court as may be consistent with law. Statement of the Case. DULUTH AND IRON RANGE RAILROAD COMPANY v. ROY. ERROR TO THE SUPREME COURT OF THE STATE OF MINNESOTA. No. 221. Submitted March 10, 1899. - Decided April 8, 1899. When a patent of public lands is obtained by inadvertence and mistake, to the injury of a person who had previously initiated the steps required by law to obtain possession and ownership of such land, the courts, in a proper proceeding, will divest or control the title thereby acquired, either by compelling a conveyance to such person, or by quieting his title. The claimant against the patent must so far bring himself within the laws as to entitle him, if not obstructed or prevented, to complete his claim. Ard v. Brandon, 156 U. S. 537, is decisive of this case. THIS is an action to quiet title to the northwest quarter of section number three, in township number sixty-one, north of range number fifteen west of the fourth P. M., State of Minnesota. It was brought in the district court of the eleventh judicial listrict of the State against the plaintiff in error and one John Megins. One Moses D. Kenyon was afterwards made a party. The pleadings consisted of the complaint, separate answers of the defendants and replies of the plaintiff, (defendant in error,) which respectively set up the titles, interests and claims of the parties. As there is no point made on them, they are omitted. The case was tried by the court without a jury and full findings of fact made, and judgment rendered in favor of the plaintiff, (defendant in error,) adjudging and decreeing him to be the equitable owner of the lands in controversy, and that the defendants "and all persons claiming by or through or under them be and they are hereby forever barred and precluded from having or claiming any right, title, lien or interest in or to the said lands or any part thereof adverse to the plaintiff and parties claiming under him." From this judgment an appeal was taken to the Supreme Court, by which it was affirmed. 72 N. W. Rep. 794. To the judgment of affirmance this writ of error is directed. Statement of the Case. The findings of the court established the following: The lands were patented to the State of Minnesota by the United States as swamp and overflowed lands, and the plaintiff in error is the grantee of the State. The defendant in error claims under the homestead laws. At the time of the passage of the act of 1860, under which the patent was issued, the lands were not swamp, wet or overflowed, or unfit for cultivation, but were and now are "high, dry and fit for cultivation," except four or five acres in the northwest corner. In May, 1883, the defendant in error, then being qualified to do so, settled upon the lands with the bona fide intention of acquiring the same under the laws of the United States, established his residence thereon, and has ever since continued to be in the actual, exclusive and notorious possession, maintaining his home there, and cultivating and improving the same. When defendant in error commenced his residence on the lands the plat of the survey of the township in which they were located had not been filed, but was filed subsequently, and after it was filed, to wit, on the 2d of July, 1883, he went to the land office with the intention of entering the lands under the homestead laws, and made a request to do so, but the land officers informed him that there was a mistake in the survey, and that in all probability a new survey would be ordered; that numerous protests had been made against the survey which were sufficient to raise the question of its accuracy; that it was unnecessary for him to protest or file on the land, and advised him to wait until such protests were determined. He was a foreigner, did not know the English language, nor was he familiar with the laws, rules and regulations relating to the disposition of the public lands, and relied upon the representations of the officers, and acted upon their advice. On the 5th of August, 1884, he discovered that the State was claiming the lands as swamp lands; thereupon he duly made application to enter the same under the homestead laws, and tendered the fees to the local land officer. No adverse claim other than that of the State had arisen or was made to said lands, but his offer of entry was rejected on the ground Opinion of the Court. that the same had inured to the State under the act of March 12, 1860, and that his application to enter the lands had not been made within three months after the filing of the township plat in the land office. On the 8th of August, 1884, he duly filed contest, duly appealed from the rejection of his claim, which appeal and the affidavits attached were transmitted to the commissioner of the General Land Office, and were by him received and filed September 1, 1884. On the 23d of January, 1885, and while the appeal and contest were pending, the lands, through mistake and inadvertence, were patented to the State of Minnesota. The defendants took conveyance of the lands with notice of the right, claim and interest of the plaintiff (defendant in error). The assignments of error attack the conclusions of the state courts as erroneous, and specify as reasons (a) that the legal title to the lands was in plaintiff in error, and that there was no finding that there was a mistake of law or fraud on the part of the General Land Office of the United States or of any officers of the United States; (b) the finding that the patent to the State of Minnesota was issued through a mistake or inadvertence does not constitute a ground for adjudging defendant in error the equitable owner of the lands; (c) the defendant in error is not the real party in interest and never had the legal or equitable title to the land, the United States being the only party which could attack the patent to the State of Minnesota or invoke the action of the courts to determine its validity. Mr. J. M. Wilson for plaintiff in error. Mr. J. M. Vale and Mr. John Brennan for defendant in error. MR. JUSTICE MCKENNA, after stating the facts, delivered the opinion of the court. Do the facts entitle the defendant in error to the relief which was awarded him by the state courts? |