Under those circumstances, we think it would be carrying the doctrine beyond the true limits, even accepting the present doctririe as a correct interpretation of the st3tute, to say that the individual member of a firm cannot dispose of his individual property in the payment of any debts for which he is personally or secondarily liable without subjecting himself to the, rule that it is to be classed as passing under the general asIn that view of the case, the decree will be for the defendant.
(Circuit Court, lJ.Nebraaka. May 6,1887.)
A portion of an odd section within the limits of the Union Pacific Railway land grant, settled and entered under the pre-emption laws of the United States at the 'time of the filing of the map showing the defhiite location of the ,road, is not within the land grant of the road; following Kanaa8 Pac. ,R. 00. v. JJunmeyM', 113 U. S. 629, 5 Sup. Ct. Rep. ,566.
, Complainant entered a tract of land under the pre-emption laws of the United States,May 14. 1864, paying for it with a land-warrant. and received a receiver's receipt for it. December 12, 1868, the commissioner of the general land-office canceled this location and entry. Complainant having no notice in advance that such cancellation would be made. and not knowing of it til,l the following summer, never appe:aled from the order of cancellation, Held, that the decision of the commissioner Was not conclusive against complainant, through his failure to appeal, Since section 2273, Rev. St. U. S., which provides for appeals from the decision of the commissioner, applies in terms only to contests between settlers, since complainant, in regal'd to the decision of the commissioner,was entitled to a day in court, whichhe had not had, and since the decisions of the land department are conclusive of questions of fact only, and not of questions of law.
W. H. Munger and J. M. Woolworth, for complainant. A. J. PlYJipleWn, for defendant.
BREWER, J. The defendant holds the legal title to the E. ! of the N. E. t of section 31, township 18, 10, in Washington county, having received a patent therefor on March 26, The complainant claims to be the equitable owner, and brings this bill praying for a decree, adjudging that the defendant holds- this legal title in trust, and ordering a conveyance of such title to himself. The facts are these: On December 16, 1863, defendant filed in the department of the interior a certified map, showing the general route of its line of road for the first hUlldred miles west of the Missouri river, and on the twenty-fourth day of October, 1864, filed its map showing the definite location of such road. The land in controversy is within the limits of the land grant of defendant, and was patented to it as a part ofits grant under the acts of July 1, 1862, and July 2. 1864. :PEior to the filing of the map of the general route, as above stated, and on the first
UNION PAC. BY. CO.
of July, 1862, a pre-emption declaratory statement was filed in the United States land-office, alleging settlement on the same day upon the north 40 acres of this tract. On April 1, 1863, the same 40 acres was embraced in a homestead entry, which was canceled March 22, 1864. On February 9, 1864, a further pre-emption declaratory statement was filed, including the same 40 acres. On February 28, 1863, the sO,uth 40 acres was included in a pre-emption declaratory statement then tiled in the land-office, and alleging settlement on the same day. On the fourteenth day of May, 1864, complainant entered the entire tract, payiner for it with a land-warrant, and receiving the receiver's receipt therefo;. On the twelfth of December, 1868, the commissioner of the general land-office canceled this location and entry. The complainant had no riotice in advance that such cancellation would be made,-in fact, did not know that it had been made until the following summer,-and never appealed from the order of cancellation. From these facts it appears that the land was subject to a homestead claim and pre-emption entry at the time of the filing of the mapoi' the general route, which claims had ripened into a final entry and payment prior to the filing of the map of the definite location. The case of Kan8as Pac. Ry. Co. v. Dunmeyer, 113 U. S. 629, 5 Sup. Sup. Ct. Rep. 566, is decisive of the fact that this tract was not within the land grant to the defendant, and was therefore erroneously patElrited to it. Counsel for defendant does not seriously controvert this, but insists that complainant has no equity which enables him to challenge defendant's legal title, and for two reasons: Fir8t. The order of the commissioner, canceling his (complainant's) entry was an adjudication from which no appeal was taken, and is therefore conclusive against complainant's rights. Two satisfactory answers exist to this claim: (1) The act of congress providing appeals from the decision of the commissioner of the general land-office applies in terms only to· contests between settlers for the right of pre-emption. Rev. St. § 2273. (2) It is elemental that, to make a decision binding upon a party, he must have his day in court. This order of cancellation was made without notice to complainant, and was unknown to him until months thereafter; and it would be novel to hold a party bound by a decision of which he had no knowledge, and in a proceeding of which he had no notice, actual or constructive. Further, the decision of the land department is conclusive only upon questions of facts. and does not finally determine the law. Johnoon v. Tow8ley,13 Wall. 72; Shepley v. Cowan, 91 U. S. 330; Moore v. Robbins, 96U. S. 530; Marquez v. Fi'isbie, 101 U. S. 476. In this case the facts were undisputed, and the only question is as to the proper application of the law to the facts, and that is a question which the courts uniformly insist upon the right to determine. Secondly, it is insisted that, at the of the final entry by complainant, the.land had been withdrawn from private sale, and therefore under section 5, p. 702,10 U. S. St. at Large, could not be paid for by .a land-warrant. I do not so understand the law. Obviously this land
was entered under the pre-emption and the payment was made under that act to perfect the title acquired by pre-emption entry. Rev. St. § 2277, in terms authorizes the receipt of land-warrants in such payment, and the provision of 10 U. S. St. at Large, supra, obviously refers to private entries, as contradistinguished from pre-emption entries. I think, therefore, that complainant's equitable title was perfect, and that he is entitled to a decree as prayed for.
CoNNECTICUT MUT. LIFE INs. Co. v. FISHER and another.
(Circuit Cowrt, E. D. Mi88OUri, E. D.
May 7, 1887.)
1NSUBANCill-Lnr:m-AsSIGNMENT OF POLIcy-INSURABLE INTEREST.
Where A. assigned a policy of insurance upon his life to B., in full satisfaction of a debt due the latter, and B. assigned the policy to C., to secure a-debt which' he owed him, and C. assigned the debt secured by the policy to D., and, after A,'s death, B. and D. both claimed the proceeds of the policy which the insurer paid into court, B. claiming on the ground that neither C. nor D. had ever had any insurable interest in A,'s life, and it appeared that neither B., 0., nor D. had any insurable interest in A,'s life at the time of his death, held that. as between the two claimants, D. was entitled to the fund.
In Equity. Dyffr, Lee « Ellis, for the Insurance Company. Broadhead« Haeusa"ler, for Holthaus. Framk K. Ryan, for Fisher. THAYER; J., (orally.) The claimants of the fund which has been paid into court inihis case are respectively assignees of the policy of life insurance out of which the fund arises. Henry J. Stroh, on whose life the risk was taken, assigned the policy to defendant Fisher in payment and discharge of a debt, and not merely as security therefor. Fisher, as appears from his made an 6ut and ol1t purchase of the policy, and became the absolute owner of the same. He then assigned it to the United States Savings Institution as security for a debt which he owed that bank. Subsequently, by a purchase of the debt, Holthaus succeeded to all the rights of the bank under the policy. Fisher now contends that, as neither the bank nor Holthaus were creditors of Stroh, they had no iusurable interest inthe assured life, aud consequently that Holthaus is not entitled to the fund. If the point is well made as against defendant Holthaus, it would seem to be equally tenable as against the claim of Fisher. Fisher avers that he purchased the policy. By taking an assignment of the policy in discharge of his debt, and not merely by way of security, he extinguished the. relation of debtor and creditor as between himself and Stroh, and', as it w.ould seem, had no further insurable interest in the !ifeof the latter. As the death of the assured would expedite the payment of the policy, itW'ould rather appear that such an