NORTHERN PAC. R. CO. V.SANDERs.
(Circuit Court of AppeaZs, Ninth
Janull1'Y 25, 1892.)
Act July 2, 1864, granting land to the Pacific Railroad Company to aid in the construction of its road, which creates a reEerve of the odd-numbered seotions of lands "not miners.l, "within the limits defined; "which are free from pre-. emption or claims or rights," from the time of filing a plat of the general route in tbe general does not prevent persons taking up mining claims .in the reserved lands after the flling of such map, and before 'the definite location ot 'the road; and it does not avail the railroad·company that the lands so located under mining claims are in fact non-mineral lands. Buttz v, RaUroad Co., 7 Sup. Ct. Rep. 100, 119 U. S. 55, and Denny v. Dodson, 82 Fed. Rep. 899, distinguished. 47 Fed. Rep·. 004. affirmed.
Error to the Circuit Court of the United States for the District of Montana. ·At Law. Ejectment by the Northern Pacific Railroad Company against Junius G. Sanders and others. From a judgn,lent for defend!inta overruling plaintiff's den,lurrer to the answer plaintiff brings error. Affirmed. Fred. M. Dudley, for plaintiff in error. WilburF'. Sanders, for defendants in error. Before HANFORD, HAWLll1Y, and MORROW, District Judges. HANFORD, District Judge. This action was brought by the Northern Pacific Railroad Company to recover possession of section 21, township 10 N., of range 3 W., in the state of Montana. By an amended complaint the plaintiff has pleaded the grant.6f lands made to it by act of congress, and the facts upon wpich it relies to establish its title to the premises as part of said grant. To said amended complaint the defendants answered, admitting all the facts alleged by· the plaintiff, but to avoid the effect of such admissions, and to controvert the legal conclusions contended for by the'plaintiff, set up by affirmative allegations certain additional facts. A general demurrer to this answer was overruled, and thereupon, the plaintiff having elected to not plead" further, judgment was given for the defendants. By writ of error the case has been to this court for review.. The portion& oUhe act of congress which must be considered in deciding this case are here quoted: "Sec. 3. That there be, and hereby is, granted to 'the Northern Pacific .Railroad Company, its successors and' assigns, for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific coast, and to secure the safe and speedy transportation of the mails. troops, munitions of war, and public stores over the route of said railway, every alternate sectionof public land, not mineral, by odd numbers, to theamonnt of twenty alternate sections per mile on each side of said railroad line, as said cbmpany'may adopt, through the territories of the United States, and ten alternate sections of land 'Per mile on each side,of said railroad whenever it passes through any state, and whenever on the line thereof the United States have full title, 'not reserved. sold, granted, or otherwise appropriated, and free from pre-emption or;otber claims or rigbts,'at·thetimethe'line of said
road is definitely fixed; and the plat thereof filed in the office of the commissioner of the and whenever, prior to s/:'id time, any of Shall have been granted, sold, reserved, ocsaid sections or parts of cupied by h.omestead settlers, or pre-empted, or olherwise disposlld of, other lands shall be'selected by said 'co'rupany in lieu thereof, In alternate sections, and designated by odd numbers"not more than ten miles beyond the limits of sections." ",',',', , ,,', said ,' "Sec_ (i., That the presidentpf the shall the lands to be surveyed for forty miles in width on both sides of the entire line of said road, af,ter the general route shall be fixed, and as fast as may be required by the cOTlstru¢tlon of railroad; and the odd sections of land hereby granted shall not be liable to sale or entryol' pre-emption before or after they are surveyed,except by said company/asprovlded in this act." The material facts of the as stated in the pleadings, are asfollows: The land in controversy is an odd-numbered section of non-mineralland within the limits of-,tha grant.' On the 21st day of February, 1872, the plaintiff filed a map of its general route in the general landoffice, and on the22d day of :AprU, 1872\, the commissioner of the general.land.office"under thedlreotion of the secretary of the interior, by a circular directed the 10cn1: land-office' for ,the Helena in which said land is situated, to withdraw from sale or location, pre-emption or homestead entry. all the odd-numbered sections of public lands within 40 miles on each side of the line of general route of the plaintiff's road, as fixed by of sllidmaiY" On the 6th day of July,.1882, the portion of the line of the plaintift's road opposite to the land in contrclVersy was definitely located. On different datessli!bsequent to receipt at the local land-office of. the circular above ,mentioned, and prior to the definite location of the lilie of ,plaintiff's road, persons named.in the answer located,all of this section 21 8S mining ground, and endeavored to acquire title thereto from the governmelitunder the laws relating to mineral lands of the United States. To show the nature of these supposed, mining claims, ud what was done in asserting and ,endeavoring to maintain them, we copy a portion of the answer: " "On the 2d day of Auguat:; 1880, Theodore Kleinschmidt. Edward W. Knight, Henry M. Parchen. Cb,arles' K, WejItih; George P. Iteeves, DavidH. Cutllbert, Cornelius Hedges, E. Atkinson, each being then and there a citizen pi the United, States, and, each. haying tberetofore filed upon a certain separate twenty acres, on,the north·eaSt quarter of said section according to the laws of the territOlY'of Montana a:nd the mining usage! and cus'" toms then In force in the unorganized mining district in which'said land was situated, and beingln all qualified to enter mineral land under the laws of the Unite4States, did .enter into th.e possession of, and, did enterin the pnited Stated land-office, and ,did file upon said quarter of section in the land-office of the United Stat,lll!l at Helena, Montana, in which district said land WllS situated, a,8 miner.al'land; and did apply for a patent therefor, and did then and there, and tn due form, file an application to pnrchaSe ,sllid premjses as such minel;alland .. and l1id then and there make oath bl:\fore the regis.. that di8covered ter,and receivel; of said .nd had )oca,ted the said qU!lorter section as mineral land, and claimed the !lame as such for the valuabJe,mineral deposits therein, and that they had $:omplied "ith chapter 6 of title 32 of the Revised Statutes of the United States. wl)ich said application ,was so tiled in .the land-office of Helena, ,Mpn.
NORTHERNPAb:R: co. ,,: SANDERS.
tana, under the oath of the said appl1ca1its, with the law aforesaid, and described,tbe same by legal subdivision; and they, did then and there, prior to filing said applications, post in a conspicuous place on the claim elPbraced therein,a cppy of :said application ,and notice bereiTmfter mentioned, which said notice did then and, t,llere ously posted, on, said premises dui-intf period of publication hereinafter mentioned; andthe:ydid then and there file with the said 'application in said land-office an affid'llvit of two persons that such notice lIadbE'en so duly posted. and did then and thene file acapy of said notice in the land-office with the regillter and receiver tbereof, and by said they fequested to be perto purchase t,he same as mineral land; andt!le) then and there took, and offered to maintain by proof that the said premises were valuable for the gold contained,therein,and were,mineral lands of the Unitl'd States, to which they were entitled under the laws thereof; and that they had done the requisite amount of work thereon, to-Wit, work of the value of :five hundred dollars, and were entitled to a patent therefof'; which said application and affidavit and notice were'tbl;'!n anqthere entered ,record in said l;ltates.Jand-office bythfl register and receiver thereof, and ,the said was for a heai'ingupop their sJI,id proofs to be produced, and notice of such hearing in due form ()f law was given by the register and receiver in the proper newspaper designated for that purpose, and was dulypulJIished therein, whicn said entry, application, affidavits, and notice were in all respects formal according to law, and the said application was set down for a hearing in said land-office by the register and receiver thereof at the expiration, of the period the same wall so of time prescrilJed insaid notice; and, at the date set, the said plaintiff having, theretofore filed a protest ag!\inst the perfection of the llitid entry, as claimed by said plaintiff, that the same was not mineral land ·or commercially 'valuable for the gold or other precious metals' therein contained, the said application was continued thereafter by the consent of parties or otherwise, from time to time, and was asserted and remained pending on the 6th day of July, 1882; and thereafter the said applicants, on said 6th day of July, 18!:l2, and ther,eafter as theretofore, their ability to prove .that ,the said land was'commercially valuable for the gold therem contained, and was mineral land within the definition of that phrase contained in the act granting lands to said plaintiff mentioned in said amended complaint, and the said applicants were on the date last aforesaid claiming, aOirming, and undertaking to maintain on tlll'irapplication for said prE'misps in said land-ottice that the was minl'ral land of the Unitt-d to which they were entitled thereunder, and was not land in quality such as was descnbed in the grant to the said plaintiff." The answer makes similar averments as to the other three-quarters of the section, and further alleges: .. And as to the said proceedings, and each and all of them, in the office of the county clerk and recordt'r of said county of Lewis and Clarke, Montana, in wInch county said premises are situated, and in the United States landoffice ,at Helena aforesaid, they were in the form prescribed by law for the claim and entry of placer mining claims; and thereafter, to-wit, on the 4th day of August. 1887, the said plaintiff presented to the said regist£>r and receiver a list of lands selected by it as having been granted toit by the act aforementioned, and claimed by it thereunder, to be approved to the end that the said premises in said list described might be c:ertified to it for patent, which list ipcludedsaid section twenty-one; but to approve said list or to certify said land to said company the said and receiver and the land department of the United States refused, because of the existence on the 6th day of July. 1882, of the foregoingclilims to the same as mineral lands."
SubaequenUyto the 6th ,day of July, 1882, the defendants entered into the occupancy of said section 21, and at the time this action was they were· in possession of the same. The case as made presentSthis distinct questionoflaw: Is the land described excluded from the grant to the Nor,thern Pacific Railroad Company because pot free from claims other. than pre-em ption claims at the time of loeation of the line of plaintiff'/> road? , We do not find in the the caseswherem the supreme· court has construed the to this com pany any dedeion of this precise question ;' therefore, we must be guided in our decisiori;insofar astbe'case differs frmncases which have been decided by the court, ru1es.,; Colisidering the act as a 9bject, and giving to every wprd of the granting whole, apliits purpose clause, some force and ,meaning and the. usual significance thereof, we conclude'that congress iotended to. and, did' except and reserve out of the grant (1) lands not owned in fee by the United States; (2) lands reserved; (3) (4) to parties other than the Northern PacificRa'ilroadCompany; (6) lands otherWls.eappropriated;,. (6) lands sub. ject to pre-emption claims; (7) lands subject to claims other than preemption claims; (8) lands subject to pre-emption rights; (9) lands to rights other than pre-emption rights; (10)lands containing miherals other thah iron 6r coaL!, To determine whether any particular odd-numbered'section wlthin th(dimits of the'grantwas included in, or excluded from, the,gran(,th:e' conditiOn of the must be considered as it existed 3t titne the, Hne. of the ppposite thereto was' definitely fixed, and the plat thereof tiled in: the,·office of the commissioner of the The pre.emption claims and rights to'which reference is ,niade. in the grant', probably; thOugh not necessarily, are such Claims and rghtsas or under'theact of con· gress Law;" but tQere could be nO reasonior Jor)he protection of these which would 'DOt, app1y:1t8 .well to claims and rightS of settlers under the homestead law,and'tdthe claim-sand rights of prospectors and miners, founded upon the laws rndde expre$sly to re'Yard them for the capital invested I the liLbor eddured'in efforts to discover and develop the mineral resources of the Cou11'try. It would'therefore be unreasonable 10 Bo'cbnstrue this law as to not exclude from the grant lands to claims and rights existing under the honlestead law, and all other laws providing for' the disposal of the public lands of the UnHedStates, and granting pt'eferences to settlers, impl'overs, and discoverers, as well as the lands affected by the'pre-emption law. The rule that general descriptive words in a when connected with words of specific import, are to beuriderstood as being qualified by the latter so as to include only things or acts.of:similar kind or nature to those specifically referred to, is not violated by. including in the exceptions and reservations of this grant the land subject to the claims or rights of miners and prospectors undet the law's providirig:tOrthe;apqui!3itioll of mineral lands from the govE;lrnm,ent, for all suchclainisand rights ate simih\r to Claims and rights under the pre-emption .. by cQngresSr'elating to the
NORTHERN PAC. R. CO. V. SANDERS.
acquisition by settlers upon unappropriated agricultural1ands of limited portions thereof, including the improvements marle by each, and the statutes providing for the disposal to discoverers and miners of limited portions of the mineral lands, has been in pursuance of the general· po};. icy of the government to bestow and distribute the public lands upon and amongtho!'le citizens who will do the most to render the same ductive; and there is a general similarity in all in the landoffices of the United States by which, under the general laws, claims to particular·tracts of public lands are made and titles perfected,sufficient, at least,io render the above-mentioned rule of construction inapplicable in the way in which plaintiff's counsel would have it applied in this case, . The argument is made that the act must not be so construed as toiDiclude claims to mineral lands, as such, in the same category with preemption or .other claims to agricultural land. Two reasons a,re alleged. in support of this proposition: . Ji'irBt. The lands reserved from the grant are divisible into two classes,-minerallands, which are excludedfrorn. the grant by reason of the character of the land, regardless of thecondition of the title; and lands exempted by reason of the condition. of the till1e at the time of the definite fixing of the line of the road. ·It is said that, as all lands mineral other than coal (jr iron are excludetl under the clause of the act referring to that description of lands, the other class of exempted lands should not include any millerallands, else the act will be subject to the criticism of uselesslyprovicling two distinct grounds of exemption applicable to the same lands. Second. Claims to mineral lands cannot be supposed to have been tion of congress in the making of this law, because at the date of the act there was "no act of congress or any law under which a right or claim could be initiated to mineral lands." We regard both reasons as in· sufficient,and the proposition itself as unsound. The fault'of the prst argumentis well illustrated by, and a complete answer to it fountliu\ this very case. Whether the land is or not valullble for the mimmlll it contains is a question of fact which may be a subject of contentioni and cannot be decided without the introduction of evidence. ,As tothig landtbere was such a disputed question at the time the line of plaintiff's road opposite thereto was definitely fixed, and until the dflclsionof that. question bycompetent authority,after due investigation, it was not'and could not be known whether the land was mineral or not. But the fact that an actual controversy existed concerning the title to this land' which necessarily affected the right of the plaintiff to receive the same as part onts grant was known, and appeared by the records· in the land-offices. The question was finally decided adversely to the mineral claimants. Now, suppose that the decision was based upon false teB'timony, and that it is erroneous, or that the evidence had been different, and an erroneous decision had been given in favor of the claimants·. In either case, if the existence of a claim and litigation does not affect it, therlght of the company to the land would depend less upon the actnal truth as to its character than upon the deCisionofa contested clainli"and it follows that the plaintiff would have an interest at "stab,
and thereforced tight to challenge; every mineral claim covering any part of an odd,nunlQered section within the limits of its grant, and a right to introduce evidence on its part to defeat every such claim. It requires no strain of mental vision, to discover thepossibility of, erroneous decisions innumetous,instancesbf valuable mines claimed by persons of insufficient means to develop :the same or maintain 8. contest according to the .rules and, practice of: the. United States land department. The pro.\·isions of the act itself show that congress ,aid not intend that this companyshould have a fltanding. 'as B contestant of any class of claims which thelaw recognizes. antedating the definite .location of the road, for not only i$there an absolute omission of words limiting the application of the phraae "or other. claims or rights" ,to non-mineral lands, but by the provision allowing the company to select lieu .lands it is manifest that CQngresswas careful to guard against, and as far as possible prevent, disv,utesand,conteution as to the lands which the company should receive. We have also the authority of repeated decisions of the supreme court forsayJIig that the policy of the government precludes an interpretation of such a:grant, which would, in effect create a powerful contestant with an interest to defeat individual claimants.: Newhall v. Sanger,. 92 U. 761; Rauroad,,(Jo. v. Dun'TMljer, 113 U. 8.629, I) Sup. Ct. Rep. 566; Rau.road 00. v. Whitney, 13.2 U. S. 357, 10 Sup. Ot. Rep. 112. The seoond reason or argument is answered by the fact that the grant is not so worded as to imply that a claim, to have the effect of excluding land from the grant, must be founded upon an act of congress or an express provision of any law. It would be a misconstruction of the law to even modify the force of the sentence by interpolating into it the adjective "lawful," as said iu the opinion of the court by Mr. Justice DAVIS in Newhall v. Sallger, 92 U. S. 765. "There is no authority to import a word into a statute in order to change its meaning." Much less can there be any authority or jurisdiction for construing a grant by narrowing a reservation made therein for the benefit of the people in general, by ascribing to it ameaning different from anything which its words express. Although there was no statute providing for the sale or bestowal of mineral lands at the time of the grant to plaintiff, congress had the right to and did alterwards make such a law, and under it claims could be and were lawlully initiated prior to the definite fixinp; of the line of plaintiff's road. We think that the reservations in the plaintiff's grant were madein contemplation of future legislation as well as the then existing laws. We also hold that claims to mineral lands could be lawfully.initiated by discovery, possession, and development, according to the custom of miners and local regulat.ions at and previous to the date of plaintiff's grant. For more than a score of years before there was a statute authoriiing a conveyance from the government of title to mineral lands, the mines fouud chiefly in the public lands of the United States, situated in,OaJ.ilornia, Oolorado, Nevada,and the other states and territories west of the Rocky mountains, yielded their wealth to hundreds of thousands .. of individuals whose right to appropriate the precious metals extrActed from their mining claims according to such customs
NORTHERN PAC. R. CO. tI. SANDERS.
and regulations were never questioned by governmental authority; In the opinion of the supreme court in the case of Forbes v. Gracey, 94 U. S. 763, it is said that "it is very true that congress has by statutes and by tacit consent permitted' individuals and corporations to dig out and conwrt to their own use the ores containing the precious metals which are found in the lands belonging to the government without exacting or receiving any compensation for those ores. It has gone further, and recognized the possessory rights of these miners as ascertained among themselves by the rules which have become the laws of the mining districts as rpgards mining claims. See Rev. St. tit. 32. C. 6, §§ 2318-2352. But in doing this it has not parted with the title to the land, except in cases where the land has been sold in accordance with the provisions of the law on that subject." Just here seems to be a good place to remark that, in the'common parlao<le of the mining districts, the word" claim," used as a noun, has a definite and particular meaning, denoting, when coupled with the name of miner, a particular piece of ground to which that miner had a recogQized vested and exclusive right of possession for the purp9se of extracting precious metals therefrom, and there is reason to suppose that, in framing the reservation clause of this grant, congress selected the word" claims" for the express purpose of. excluding from the grant lands held in possession of, and claimed by, miners according to 10ca1custortis. It is next insisted that the mineral claims referred to in the answer were not simply voidable, but absolutely void ab initio, because the land is in fact non-mineral, and in support of this it is said that as mineral lands are reserved from sale and entry, as agricultural lands, so nonmineraI lands are umiffected by the mining laws, or the laws relating to entries of mineral lands, and the location and entry under mineral laws of non-mineral land is unauthorized, and a patent issued upon such an entry would be as void as a patent for mineral lands issued under a grant excluding such lands from its operation. This is very well, but we do not understand that a patent issued to a settler under the homestead or pre-emption laws would be void, or even voidable, by reason of the mere fact that the land conveyed contains valuable mines.. The authorities cited certainly do not maintain that titles resting upon patents from the government can be vitiated by the discovery of minerals subsequently to the issuance thereof. In the case of Mullan V. U. S., 118 U. S. 271, 6 Sup. Ct. Rep. 1041, the supreme court held that, as the entryman knew beforehand that the land contained a coal mine, he was guilty of misrepresentMion and fraud in making the proofs upon which the patent was issued, and for that reason at the suit of the government it was canceled. In all the cases in which palents have been canceled, the courts have proceeded according to the familiar rules of equity, and the government 'has been required to allege and prove, by clear evidence, fraud, or some other sufficient equitable ground for wresting the property from the parties sued. The last proposition affirmed by counsel for the plaintiff is this: The land, being in fact non-mineral, was by virtue of the sixth section of
pIaintitf'sfcharter, from the date of the filing of a plat of thl'l in the general laml-office, reserved for the plaintiff's benefit\ al1dnoclaim to it could be thereafter initiated whereby the plaintifi"'s,right to it under its grant could be defeated. We yield full assent to the authorities holding that the sixth section. of this charter -creates a reserve of the odd-numbered eections within the limits defined from, the time of the filing of ,a plat of the general route in the general limited, land-office. 'But the reservation which this section Bnd no greater effect should be given it than congress 'rhis law does not purport to prohibit any person from going upon the land reserved from sale or entry or pre-emption for the pprpose of hunting or nshing,nor prohibit cattle from grazing thereun, nor render unlawful a search Jor minerals. nor forbid the taking up of mining claims in such persons supposing the same to contain the precious metals in to pay for working. The country at large had an interesHobesubserved by the early discQveryof all the mines contained inlands Iiableto be claimed by the plaintiff under its grantjand it is folly tOe suppose that, if congress had intented, contrary tQ the public terest, to ,pI'Qhibitthe .prospecting of a vast area of the public land through a: region k,nQwn to,be dcbiio minerals, 01; to deprive ,prospectors of the right to claim and hold.,supposed discov;eries until the truth regarding the same could be ascertained in the Qnly practical way,-thatis, by devel\!)pment,"""'requiring time, and involving ,labor and the outlay of itlWbuld not have,positively said 80 in 'plain words. Of the multitude decisions Qf,Mr. Justice FIELD and Judge DEADY' in the case of Dennyv.Dndson; 32 Fed. Rep. 899, and the case ,of IJuUz v. Railroad Co., ,119 U. S. 55, 7 Sup. Ct., Rep. 100, are pecih1&y: relied upon bytbe plaintiff's cou:nsel. Denny v. Dodson was an, RetioR of by a vendee of the ,Northern Pacific Railroad Com-, pany "" ;The COOl plaint alleged that the demanded' prelIlises were portions of anodd.numbered sectioJ;l within the limits of the grant, fully earned b¥the company, b)r a completion of that part of thero,ad opposite thereto, and ,compliance Qn the part, of the company with all requirements of the lacw,)md that at the date Qffixing tbe general route of the road said lands were public lands, not mineral, and not reserved, sold, granted, or 00((u'pied by homestead or other settlers, nor otherwise disposed of or located. upQn, and Were free from pre-emption or other claims or rights, and to them the United States had full title. not appropriated otherwise than by the'grant to said CQmpany. By the decision of the court a demurrer to said; complaint was overruled. FrQm the opinion of Mr. Justice FIELD. it appears that, after the fixing Qf the line of general route of the road, the land was settled upon, and at the time Qf the definite location ,of the line the same was occupied as a town-site; and upon the demurrer it was argued that the complaint was insufficient l for want of an allegation tQ the effect that at the latter date the lands were not claimed under the town-site law. The court held that, on account of the reservation by the sixth section of the plaintiffs' charter, nQ entry of the der, the. town.site act CQuid be made after the date ,of plat of
the general route in the general land-office, and therefore such an allegation in the complaint was unnecessary. In Buttz v. Railroad Co., the contention was regarding part of an odd-numbered section within the limits of the grant which had been settled upon while it remained part of the Indian country, not at the time open to settlement under the laws of the United States, because the Indian title had not been extinguished'. It was the settler's intention at the time of commencing to occupy the land to acquire title to it under the pre-emption law, and within three months after the township plats ofthe government survey had been filed in the district land-office he offered to file his declaratory statement as a pre-emptor. The land was within the limits defined by an order of th,e secretary of the interior previously made, withdrawing thl'odd-Iiumtherein pre-emption entries under the sixth section of the 'pla:intiff's charter, and for that reason the filing of said dec1aratory was 110t permitted. . The supreme court that a claIm of ail1ere squatter, based upon nothing b\it' ah' Ul'11awfu\'occupa,nqY.9f.lands, will not betaken notice of by the govermngnt fonui y puriiose; ,that the offer to file a deClaratory statement under, tion r¢jected by tbe officers of the land departmeil1; and tha!ithe land was not excluded from We grant to pany by ,reason of an unrec(lgnized claim of a squattllt; nor reh'ii8n of tnefiict that the rigqt of occupancy Of the Indians had'nqt peen completely extinguished at the tiine of the definite location of 'the rohd. These: cases ,are not like the case at bar. It is cleady from. each6ftheni by the iniportal'1t fact that the'land incoritroversy was, at the time the grant ceased to be afloat, affected by something rnot(; mere, pretended claim existing only in the mind of an individual. It was for the time being actually segregated from the body Of the 'public domain,by claims apparently genuine and lawful; appearing of recL ord and recognized by the officers of the government, 'and as to thtHl.ct,:. ual validity thereof dependent only' upon issues of fact to be thereitfter detemline<l by competent authorities. By an unbroken line ofdecisioils, of the supreme court, frorp the case of Wilcox v. Jackson, 13 ,Pet. to the eaSe of St. Paul & P. R. Co. v. Northern Pac. R. Co.; 139U. 'S; 1, 11 Sup; 'Ct. Rep. 389, the title to land so affected does notpftss by a grant of "public land." For the reasons above given it . <lision of this court that the Judgment ofthe circuit court for the disuict: of Montana in this case be affirmed, .
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HILL et; at..11. WOODBERRY
(Citrcwlt VO'WI't Q/ AppeaZ8, E'lghthCirc",it.January
The prov\sion in a deed of for the benefit of creditors authorizing the assignee to "ilia; fOr tl account8: 'Ultell, eta., is in harmony with the law of Arkansas. . and dQes nOct ,vitlat!! the deed. ' ,:" . . . , Where the court's fibdingsare special'the circuit court ofappeaiscannot inquire whether the evidence supports tlie special of facts,but only whether the , fl1oCtsfo\lJ1.d are, !lnlJicient to i,Udgml;l!1t.". ,
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2; REVIEW ON Al'l',AL.
B. 1l'RA1;1t>t'LENT CONVEYANCES-EFFECT ON ASSIGNMENT,'.
, 'Afra:udulent Oispositlbnof PJ'&p&rty invalid:&t:lls a SUbsequent for the ;bltue1lt i 9f, creditors OlllY· .!leed o,f,!¥,sii.nment is. part Of. a scheme to de. .....(raud" and the provisions, 9f the Qeed are calcUlated to promote object.
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Woodberry, & in ,J'qhn M. Denman, as of ,.fIamtUfs froOl ajudgment for the in,. terpleader. Affirmed., '. ' . ' , & GTeesrfn, for, in error. O. Q.ita7nbyan,d T!ws. O.Mf$.ae, forderendant in error, J. M. Den· .' " " '. " .' ' , QA,r.nWELL, .Circuit Jri4ge, and SBIRAS. District JudgeS: . .,
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to the, Circuit of AflrAnAlit5. . . ' . . ',' '.'. ;, ... Hill,' &'9? ,was,suw}
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pIiited States, Eastern District
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Ch'cuitJqdge·. 12th day or Marqh, 1891, berry & HaOliltpn,partJJ,ers Prescott, Ark., eXecute,d a deed toperim/1-n, as assignee, for the benefit of of. their stock of w,erchandise, notes, their creditors, without anq accounts, lJ,llother property, of every nature, and debut aftel' the execution scriptiOl\, to them belongi:pg." On the and delivery.of,the deed.of assignment, the. plaintiffs, in error commenced Woodan action ill; which tpey, suecl out a writ of berry&, for the sum of and qa:used the marana! the propl\'fty which d,efenq.a.ntshad conveyedw to Denman as assignee for the benefit ·.. ,The in:tervened in the action in the court below, and filed an interplea, claiming the property attached under the deed of assignment. The issues between the plaintiffs and the assignee arising on the interplea were, by agreement of the parties, tried before the court, which made a special finding of facts, upon which judgment was rendered in favor of the interpleader; and thereupon the plaintiffs sued out this writ of error. The deed of assignment authorizes the assignee "to demand. sue for, collect, and receipt for" the accounts, notes, and evidences of debt assigned to him by the deed. The trial court held the authority conferred on the assignee to" sue for" the collection of the choses in action did