those who put faith in the action of its constituted authorities, judicial, executive, and administrative;" and Justice FIELD, in Robertson v. DmlYfIIing, 127 U. S. 607, 613, 8 Sup. Ct. Rep. 1328, that" it ought not to be overruled without cogent reasons." It is well said by counsel that "it is interesting to note the growth of this principle in our Jaw. From the time Justice TRIMBJ,E announced it so cautiously in 1827 it has gained strength every time it was again considered by the court. Impelled by the force of its inherent justice, every judge who has taken it up has stated it more strongly than it was stated before." And this is a case where that doctrine is eminently worthy of application. The supreme court of the United States has also in two recent and important cases em· phasized the necessity of reliance upon the stability of title evidenced by patents from the government. See Ma'JJWeU Land Grant Case, 121 U. S. 325, 7 Sup. Ct. Rep. 1015; Iron C.(). v. U. S., 123 U. S. 307, 8 Sup. Ct. Rep.131. Such reliance should not be disturbed in the case at bar. The demurrer will be sustained.
et al. v. ROESCHI,AUB
(Circuit Oourt, D. Oolorado. February 7, 1889.)
PuBLIC LANDS-RAILROAD GltANTS-ExCEPT·IONS-HoMESTEAD ENTIl.YS.
The word" attached." in 12 U. S. St. at Large, 492, (the Union Pacific land grant act,) granting land "to which a pre-emption or homestead claim may not have attached at the time the line of said road is definitely fixed, " means the filing of an entry in regular form by a settler; and the fact that subsequently to the definite loclltion of the road such an entry is set aside because made by,a person not entitled to hold a government claim, gives the company no right to the land. ,
IqEquity. Bill by Marion W. McIntyre and others against Henry F. Roeschlaub and others, to set aside a homestead entry. On demurrer to bill. Wells, McNeal « Taylor, for complainants. Teller « Oralwod; Rogers« Webber, and Daniel Witter, for defendante. BREWER, J.! I, This is a bill filed by the complainants against the deto, have a certain entry adjudged null and void, and to establish their title to the lands in controversy. The lands in controversy are a part of the body of lands lying ,south-west from Denver, the title to w.hich is inv,o,lved in the case of U. S. v. Railway Co., ante, 551, recently decided ,in this. court. The complainants claim under the railway company; the defendants by a homestead entry. So far as the general question as to t1w title of the railway company to these lands is concerned, I have nothing to add to what I said in the opinion .filed in that case, and if only question, decree would have to go for the complainants as prayed. But it further appears that, prior to the filing of the line of definite location, one Mary S. Hooper had filed in the proper
U'INTYRE V. ROEBCHLAUB.
land-office her claim to said lands as her homestead, and that the entry thus made had , not been set aside at the time of filing such definite location. To invalidate this proceeding complainants allege that said Mary S. Hooper never settled or resided upon the lands, or made any improvement thereof, or ever attempted or intended so to do; that the entry was a pure matter of speculation, and for no other purpose; that she was an alien, and had never been naturalized, and therefore was not qualified to make such entry; that immediately after the filing of her pretended claim she abandoned the territ.ory of Colorado and moved to the territory of New Mexico, and this pursuant to an intention formed at the time she made her filing: that the Kansas Pacific Railway caused. proceedings to be commenced to avoid such entry, which proceedings. were finally successful, but not until after the time of filing the line of definite location. In other words, at the time of filing the line of definite location, and when the company's title beca-ine fixed, there was a homestead entry, regular in form, and apparently valid, but made bya person unauthorized to make such an entry, and without the purpose of. complying with the requisite conditions. The entry was 011e that, when. challenged, could not be sustained. and was in facttbereafter set aside. Did the grant to the Kansas Pacific attach to these lands? The decis-; ion of the supreme court in the case of Sailway v. Dunmeyer, 113 U. S. 5 Sup. Ct. Rep. 566, establishes the fact that if the homestead entry had been a valid one the land would not have passed to the railroad company. The contention of complainants is that because it was subject to be set aside upon proper proceedings it must be treated as invalid, and amounting to nothing, and therefore not interfering with the grant to the company. The original grant to the company was of land "to which a pre-emption or homestead claim may not have attached at the time the line of said road is definitely fixed." 12 8t. at Large, 492. In the opinion in the Dunmeyer Case, 8upra, Mr. Justice MILLER uses this language: ; "In the case before us a claim was made and filed in the land-office,and there recognized, before the line of the company's road was located. That claim was an existing one pUl;>lic record in favor of Miller wht'n the map of plaintiff in t'rror was filed. In the of the act of congress this homestead claim had attached to the land, and it therefore did not pasR by the grant. Of all the words in the English language, this word' attached' was probably the best that could have been used. It did not mean mere settlement, residence, or cultivation of the land,but it meant a proceeding in the proper land-office by which the inchoate right to the land was initiated. It meant that by such a proceeding a right of homestead had fastened to that land, which could ripen into a perfect title by future residt'nce. and cultivation. With the performance of these .conditions thecompanY.had notbing to do. The right of the homestead having attached to the land, it was 'excepted out of the grant as milch as if in a deed it beell excluded from the con. . veyance by metes and bounds." Within the reasoning of that case, I think the contention of ,the complainants cannot be sustained. So far as the records of the land.office disclose, a proper homestead ent.ry had attached.· The government. had
accepted the filing.;ofthe entry by :ij:Qoper. it should afterwards permit that entry to ripen into 'a perfect title,or ,should: phallenge her rigbtto perfect the entry, were matters resting solely in the discretion of the government. . The right to inquire into the validity of the proceedings in the regular in form, was not granted to the railroad company. Such right of inquiry remained personal to the government. It occupied the position, not of a vendor, but of a donor. It limited its gifts to lands to which a homestead right had not attached. Whenever itaccepted a homestead entry, its acceptance removed the .land from the terms of the grant. What should become of the matter thereafter as botwoon the person making the entry and the government vyas a matter that did not affect the railway company. It had no right to inquire; The government might have waived all the informalities and ,defects in the person; or in the occupation, and issued its Plltent. Whether it did or not was a matter l!)f. which the rdilroad company could not complain. It was enough for it that upon the face of the records there was an apparently valid homestead entry, one which the government had recognized, and one which it might fillallYpermit to ripen into a perfect title. The homestead claim,whether good or bad, in the language of the act, attached; and that is aU the railroad ·company could inquire into. That being settled, the land dhl not pass under this grant. For this reason the demurrer to the bill will be sustlltined.
et al. '
(Oi'l'cuit Oowt, E. D. Tennessee. February S,1889.) CONTRACTB-REQUIBI'l'EB-AGREEMENT. Defendant wrote plaintiff: .. When you can give $1,000 for my interest. Bend :.yourdeed and 4e:replied:"I am not willinlf to give. more \11 an $700;" but Bix agent wrote to defendant: · I am directed to accept your ofte.r." t.IP which def.en.t;lant replied: have.' turned my busi· .'neBs [overJ to W.· andhewill trade wit,h yclu. and then Bend mil deed. ** * , Upon presentation of de.ed from him, will sign and send back." Held, that there wail no contract. .'. . ':
. 'InEquity. " . '..... .... . . ' . . ". . . . . ' ',,:Bill for Ai-thur against William .F. Gordon and Hugh a.ud C. :8. White. . And7'ews &: Thornbu1'gh,' for com plainnnt. Washburn: &: Templeton, for defendants.
KEY, J. The bill 'ill this case isflfedfbnt specific performance of an alleged contract for the sale and conveyance of certain lands situated in thelvicinity of 'The Iilegutiationsin regllrd to the matrer rwe1'e' carried on by correspondence thrpugh the mails. C. H.Rogers appears. to: have initiated the b)T January