BOWEN V. NEEDLES NAT. :BANK.

925

Jt is contended that no action could be maintained on the undertaking until the final decision of the case by the court of appeals, and that the statute of limitations began to run only from the date of such final decision. The complaint expressly states that on the appeal from the decision of the general term of the superior court to the court of appeals there was no undertaking to stay the execution. Section 1309 of the New York Code of Oivil Procedure provides that where security is given on appeal to the court of appeals to stay the execution of the judgment appealed from "an action shall not be maintained upon the undertaking given upon the preceding appeal until after the final determination of the appeal to the court of appeals." By implication, the statute permits such an in the absence .of an undertaking to stay the execution, and 'it accords with the practice prior to the adoption of that provision of the Code. Burrall v. Vanderbilt, 6 Abb. Prac. 70; Heeb,ner v. Townsend, 8 Abb. Prac. 234. The undertaking in this case was to secure the payment of the judgment that might be rendered in the court to which the appeal was then to be taken. It contemplated no second appeal. The conditions on which the sureties' liability was to attach were met when, on January 15, 1894, the general term of the superior court rendered its decision. On that date. the cause of action against the sureties on the undertaking accrued and the statute began to run. The second appeal, taken 11 months later, could not operate to toll the statute. On the argument. of the cause in this court, the point is made that subdivision 1 of section 339 of the California Code of C'ivil Procedure is opposed to the provisions of the constitution of the United States, and is therefore void. We do not need to enter into a· discussion of this proposition. The point was not made in the assignments of error, and is not properI;}' before the court. If it were, we should be compelled to dismiss the appeal. Hamilton v. Brown, 3 O. O. A. 639, 53 Fed. 753; Hastings v. Ames, 15 O. C. A. 628, 68 Fed. 726; Pauley Jail Bldg. & Mfg. 00. v. Orawford Co., O. O. A. 579, 84 Fed. 942; Wrightman v. Boone Co., 31 C. C. A. 570.88 Fed. 435. The judgment will be affirmed.

BOWEN v. NEEDLES NAT. BANK et al. (Circuit Court of Appeals, Ninth Circuit. No. 499. 1.
j

May 15, 1899.)

NATIONAL BANKS-POWERS-CONTHACT OF GUARANTY.

A national bank has no power to lend its credit to any person or corporation, or to become guarantor of the obligations of another, except in the case of tl;le transfer of promissory notes discounted, which is in the ordinary course of Qanking. A contract entered into by a corporation, which is ultra vires of its charter, cannot be ratified or become binding on the ground of estoppel, and the only ground on which the corporation can become liable to the payment of

2. CORPOHATIONS-Co'NTHACTS ULTHA VIBES-ESTOPPEL.

926
',ffionefli01:' . ?f: such ,llhas been, that It has a ,benefit or cannoHus#Y' retain. , "d , :, , ,, ',"
,;; ! ' "

whIch It

3. ,N

sUch person had 110 ttlnds on deposit, as: WII:IiI ktiown to tp.\3 ,bank. InreHlll).Ce on such promise, plain,tiff cashed · both ",chec1\s of SUC,h 'ller,sqn, !lnd transm,Jtted .them to thepallli,;f9r payment. The 'bitnk, I!Jsuea and sent to plaintiff its drafts on acbrrespondent for tlie amount of tne 'checks, which drafts were tefused pay.ment. Held, that the contract wlas 'qne: purely of guamn(y, and was ultra :tireson,the part of tlle bank,and· the tlfansaction gave l>laintlt1= no right of action: lIrgainst :it ,\lin ille , '. I , , ' " . ' ,Ii ' 'Ross, Circuit Judge! dissenting: ' '"

.

In El'l'or

"t;lf, OaHfornia.

tq'

obhe United Sta,tes

"

, .

,

,

Abner':\.'. &uedtl\e Needles upon'four caUses of action, the firllt"seplilnq,and tb!1!'d of WhiCh, :were upon ,bills of for, $8,775" $8,30Q, and $5,364, 'Which It was alleged .In tbe complaint were drawn by the defendaiIt at,its ,place 'of business inihe state of Californlaupotl the Chase National' BiJ.!dk, 'of New York, 'and payable to the order of the' piaintiffunder the name of ,A(. T. nowen & Co., which, 'Oms of excbangebadr been dillll()nored by the drawee; ,and :fot of action the plaintiff aJleged further that the. was iridl:)bteq to a check for $3,500; drawn by Isaac E. Blake upon fhe defendaJ?t:'J)iink; lllldpa,yable to the orde{ ohhe plaintiff. Upon the issuell created: by' the answer the cause wa:S, tl'ied :before the court without a jury, and the' court found fO!!,tlledefendalj.i;87l1'ed,·43(). No blll ot exceptions,i/!i presented in thl1l'E1lfOrd,:but it is the plaintiff :inerror "tbat ,up0p.; tbefil\dil.?-gs of fact made ,by tbe cpurt t1}e jlldgment should have been tor tbe 'plaintlff,' 'fIle findings are; in substance, as' follows: (1) That tlie 'defendant; eXl:lcuted and delivered to thep'Inintiffthe instruments called "\b111S of exohange" in the first,second, and th1rdcauseif of action 775; Septemfor I;he; 8e'l1eml amounts f()l1owlng, 1,8, $M64; and that sa1(1 ,ollIs of exchange ber 12, '.' were drawn upon the Chase;,;atlonalBank.of New YorK.' :""(2) TM.t neither at time of theflra!wlng of at the time of their reeeipt:byithe plaintiff were 'there ifunds In the Mnds of the drawee to pay the same; that said dl'afts were qat presented to the drQ:wee for acceptance or paymen,t, .,' . , " " , : , . ,".. .' '" '-,: (3) 'rhat tbe' defendant" pr'Ovided fot the payment of said dra,fts by drawing counter drafts at tile same time upon I&aac E. Blake, payable at &ald Cba&t' National Bank; that said counter draWl were not 'paid, but':J!rom the prior course of dealing between plaintiff .and defendant and tbe said Chase National Bank and the said Blake the defendant had reason to believe, and did believe, that they would be paid. (4) That tbe said drafts or bills of exchange mentioned in the first finding defendant ,to plaintiff in exchange for checks were made and drawn by said Blake in favor of plaintiff and upon tbe defendant bank; that said Blake had 'no funds to ht!lcrOOit In the defendant bank, either at the time of drawing said checks or at the time of their presentation for payment, (5) Tbat the plaintiff is a citizen and resident of the state of New York doing & Co., and the defendant is business under the Hame and style of A. T. \1.,)lational corpora#oD,orgli,nized under the laws qf, United States. ,,(6) That ptl?(td the plalntifl' had n?Qneys to tbe said Blake upon ctJ,eclis dra'YI+ by him upon tM defendant bank, and.,' being unwilling the latter, to'advance further sdriis"without some guaranty from tbe on said April 25, 1894, executed and delivered to the plailitlff' the following , telegram and letter;,; "To A; T. Bowen & Co., 71 Broadway\New,York: We will pay checks signed 'Isaac E. Biake, by. W. L. Beardsley,' The Needles National Bank."

the

BOWEN V. NEEDLES NA'f. BANK,

927

"A. T. Bowen & Co., New York City-Gentlemen: We hereby beg leave to conth-m our telegram to you of even date: 'We will pay checks signed "Isaac E. Blake, by W. L. Beardsley," , signed 'Needles Natiolllli Bank.' "Yours, truly, W. S. Greenlee, Cashier." . That on August 22, 1894, the said bank sent the plaintiff the following letter: ·'A. ·T. Bowen & Co., New York Oity-Gentlemen: I am in receipt of telegraphic communication from Chase National Bank that our draft No. 2,200, for $7,500, to the order of Bowen & Co., has been refused payment until advices received from us guarantying the amount received. I immediately guarantied the amount to be $7,500.00, and I trust I have put you to no great inconvenience. . It is simply a clerical error, which happens to us all some time or other, and in future we will endeavor to be more careful. I have telegraphed you to please pardon our error, and that we wish you to still continue your friendly relatiqns w'ith Mr. Blake and Mr. Beardsley, and that We guaranty absoluteltthe payment of Mr. Blake's checks as heretofore. I am truly sorry the mistaJtehas occurred, and can venture the assurance that it will not happen again;' The Keystone mine has just uncover!i!d a large body of high-grade ore, and, if th,e vein continues as it is now for the next thirty days, it will .make a big shOWing. Again asking your pardon, I remain, with best Wishes, "Very truly yours, 'V. S. Greenlee, Cashier." (7) That on the 4th, 5th, 10th, and 11th days of September, 1894, respectively, upon checks draWn by the said Blake upon the defendant bank, the plaintiff advanced said Blake the following sums of money: $8,750, $8,300, $5,300, $3,500, and .transmitted the checks to the defendant for payment. (8) '.fhat In (\.'(change for the checks for the first three sums of money the ,lefendant transmitted t6 the plaintiff the bills of exchange mentioned in the tirst finding aboVE, and :returned to the plaintiff the fourth check, for $3,500, llllpaid. ! , (9) That l)-tthe time. of drawing said checks and at the time of their presenta[ion to tlie defendant bank the said Blake had no funds whatever on deposit with the bank with which to pay the same, nor did he have any funds on deposit with the bank at the time when said letters and telegrams were, sent, or at any time (10) That the bills of eXchange mentioned In the first finding are in fact cheeks, and. that defendant bank suffered no Injury by the failure of the plaintiff to present the same to the :Said National Bank for payment. (11) That at the time of the drawing of said checks the plaintiff had con" that the said Blake had no funds on deposit with the defendant bank to meet the. same, and knew that the defendant was. a.nationalbank. Upon these. fiIidings of fact the court found as concl.usions of law that the undertaking of the Needles National Bank to guaranty tbe checks of Blake was ultra Ylres, and was void; and tbat the bills of exchange, having been .made and executed to .plalntlff ,un!ler such void contract are null and void in tbe hands of. the plaintiff,. and that no cause of action can arise thereon:

John D. 'Works and Bradner W. Lee, for plaintiff in error. Henry n Dillon and Eber T. Dunning, for defendants in error. Before GILBERT, ROSS, and MORROW, Circuit· Judges. GILBERT; Circuit Judge, after stating the facts as above, delivered the opinion of the court. It may be stated in general that no banking corporation has the power to become a guarantor of the obligation of another, or to lend its credit to any person or corporation, unless its charter or governing statute expressly permits it. Farmers' & Mechanics' Bank v. Butchers' & Drovers' Bank, 16 N. Y. 125; Morford v. Bank, 26 Barb. 568; Thomp. Corp. § 5721. Under section 5136 of the Revised Statutes, national banking associations are given the power to "make contracts" and "to exercise by its board of directors, or duly authorized:

, 1)4 FEDERA,It. ,!tEPORT:aJR.

be. necessary tocarry on the. business of banking; by discounting

o:l;ticersor agents,subject to

all such incidental powers as shall

and negotiating promissory notes, drafts, bills of exchange, and other evidences of debt; by receiving deposits; by buying and seIling exchange\ coin, and bullion; by loaning money on personal security; and by obtaining, issuing, and circulating notes according to the provisionfjlof,this title." There is in these provisions no grant of power togua:ranty the 'debt of another, nor can such g)laranty be said to be to the business of banking. It has been so held in Seligman v. Bank, 3 Hughes, 641,Fed. Cas. No. 12,642, Norton Y. Bank, 61 N. H. 589, and Bank v.Pirie, 27C.C. A>l7f, 82 Fed. 799. An apparente:Kception is recognized in the case,' of 'the. discount of promiBsorynotes by national banks which may be transferred with a guaranty, bii1dt rests upon the ground that the guaranty of such paper is but an ordinary iI;lcident to its transfer in the course of banking. Tn People's Bank v. National Bank, 101 U. S. 181, the court said: "To hand over with an indorsement and guaranty is one of the commonest modes of transferring the securities named." There can be no doubt that the guaranty in the present case was ultra vires. It was aside and apart from the business of banking. The case is not that of an officer of a bank exceeding the powers delegated to him, but it is a case where the banking association itself has exercised powers in excess of those which were conferred 'upon it by statute. The plaintiff, equally with the defendant bank, was bound to take notice of the statute. He had notice also that there were no funds in the bank to meet the checks, and he knew that the contract was one of guaranty pure and simple. The transaction cannot be deemed a certification of checks, as urged by the plaintiff in error. The checks were not certified. They ,did not,bear tlleacknowledgment of the bank of funds in its possession equal in amount to the checks, and available for their payment. The certification of checks is in the lineofhanking business, an.dis not prohibited to national banks. The only prohibition is that tJ;1e bank shall not certify a check unless the drawer has on deposit at the'time sufficient money to meet the same. The penalty for violation of the prohibition is to render the bank liable to the forfeiture of its charter, and to have its affairs wound up. Rev. St. § 5268; Thompson v.Bank, '146 U. S. 240, 13 Sup. Ct. 66. But the present case is complicated by the fact that the plaintiff 1n error relied upon the guara::q.ty, and cashed the .checks on the strength thereof. There is authority for holding that under such circumstances tlle bank is estopped to deny its liability on the guaranty, notwithstanding that the contract. was ultra vires. T'bomp. State BO&-f,d,of Agriculture v. Citizens' lSt. Ry. Corp. §§ 6017, Gp.,47 Ind. 407; Insurance Co.,v.M;cClelland, 9 Colo. 11, 9 Pac. 771; OiICreek &A. R. R. Co. v. Transp. Co., 83Pa. St. 16.0. principle, properly undecllt9,Q(1,and applied, extends to every, C&'3e where 1Jle c.onsideration,Q' the 'contract has passed to the corporation fro:rp; the party, which consideration may, On ,well-understoodprin.ciples, either of a benefit to the cor119r.ation oro! a prejudice ·qfdjSad.vantageto the other contracting

BOWEN V. NEEDLES NAT. BANK.

929

party. It is therefore not strictly necessary to the proper application of the principle that the corporation has received a benefit from the contract, but it is sufficient that the other party has acted on the faith of it to his disadvantage; as where he has expended money on the faith of it." Thomp. Corp. § 6017. It is contended that this doctrine finds support in the language of decisions of the supreme court, as in Hitchcock v. Galveston, 96 U. S. 341, 351, where it was said:
"But the present is not a case in which the issue of the bonds was prohibited by any statute. At most, the issue was unauthorized. At most, there was a defect of power. 'I'he promise to give bonds to the plaintiffs in payment of what they undertook to do was, therefore, at furthest, only ultra vires; and in such a case, though specific performance of an engagement to do a thing transgressive of its corporate power may not be enforced, the corporation can be held liable on its contract. Having received benefits at the expense of the other contracting party, it cannot object that it was not empowered to perform what it promised in return."

And the court quoted with approval from the opinion in State Board of Agriculture v. Citizens' St. Ry. Co., 47 Ind. 407, the following words:
"Although there may be a defect of power in the corporation to make a contract, yet, if a contract made by it is not in violation of its charter, or of any statnte prohibiting it, and the corporation has, by its promise, induced a party relying on the promise, and in execution of the contract, to expend money, and perform his part thereof, the corporation is liable on the contract."

Also, in Railway Co. v. McCarthy, 96 U. S. 258, 267, where the court said:
"The doctrine of ultra vires, when invoked for or against a corporation, should not be allowed to prevail where it would defeat the ends of justice, or work a legal wrong." .

'While the language of these expressions of the court may be said to be sufficiently broad and inclusive to justify the contention of the plaintiff in error, the court, in its adjudications, has limited the application of the principle to cases in which a corporation has, by the plea of ultra vires, sought to retain unjustly the fruits of a contract which has been performed by the other party thereto. In all such cases the action has been maintained, not upon the contract, nor to enforce its terms, but upon an implied obligation resting upon the defendant resulting from the fact that it has received money or property which it ought either to return or make compensation for. In Salt Lake City v. Hollister, 118 U. S. 263, 6 Sup. Ct. 1059, it was said: .
"The courts have gone a long way to enabl? parties who had parted with property or money on the faith of such contracts to obtain justice by recovery of the property or the money specifically, or as money had and received to plaintiff's use."

In Louisiana v. Wood, 102 U. S. 294, where a city had received money for bonds issued by it without authority, the court said:
"The only eontraet aetually entered into is the one the law implies from what was done, to wit, that the city would, on demand, return the money paid to it by mistake." 941<'.-59

93d

94 FEDERAL REPORTER.

1 . WP?-rkersbqrg v. Browfi, 106 U. S. 487, 1 Sup. Ct. 442, in a simi·
"Tge ellforcement of such right .Is .' ilOt in affirmance of the illegal contract, but .IS in disa'.lfirmanceof· it, an9.. seeks' to. prevent the city from retaining the benefit which' It has derived from the unll1'Wful act."
;"J:" ;'"

.",,'1;;;: ::; , .'

. ,. .: '

.

.' rbese citations sumcientlytlhistrate the ground, ',and the only ground, on which the supreme court has held that corporations may l;)e to tllepaYIIl,ent of m9ney on account of contracts which into ultra vire;iM their charter, and,which have been performed: by the other party to the contraot. The right to relief in such Cttse$rests .upon the·fact that the defendant corporation has obtai;net1an advap,tage which it cannot justly retain. The general doctrine bywhi,ch:'the :pl,'e$en( case may be ruled is thus stated in t4e language of .the eourt in .Central. Tranep. Co. v. Pull· man's Palace-Cal' Co., 139 U. S. 24, 59, 11 Sup. Ct. 478, 488:
i

., . :

.

.

.. ·· .. 1"

1

,.I cllqtract of a corpor,ajJpn, which vires in; ;t;he ;Ij1.·oPl?r sense,-that is to of 'its in tpela,w, of its organization; 'lind 'therefore beyoIfd 'the powersconterred upon it by the legislature,is not voidable only, but wholly void, and of no legal effect. The Qbjectlim' to the contract is not merely, that tbecQrporation ought not to have made it, but that ,it eould, not make, it. ,The contract cannot be ratified, by either party, because It could not 'h/iVl:! beenallthorillied.by. eUher.' No performance on eitber side ean,.givethe ,validitY,:or be the foundation of any right of action. upon it." ,:n/' ' ,i"

In the saDie 'case it :wassaid (l$i9:U. S. 54, 11
was void, because ultra ,publicpplicy, ,y,et,that, having been fUlly .performed on tile pal;t of:' the plaintiff, and tbe- benefitsqf it received by the defendant, for the period covered by the declaration,' tbederendant was estopped to set up the invalidity of the contract as a defense to this action to recover :the compensation agreed' on for that periOd." But this'argument, though i'iustained, l)y decisiolllil in some of thestatet., find!!. no support :ill· tbe judgments of thjs COl.mt ," .
"It was argued in behalf of the plaintiff that, even if the contract Sued on

Later decisions of thesl.1preme court ha'Ve emphaJsizedthe views expressed in the foregoing quotations. Navigation Co; "¢. Hooper, 160 U.S. 514;116 Sup. Ct. 879; Union Ry. Co.V'.Ohicago, R. I. &P. By. Co., '1'63:U; 8; 564, 16 Sup. Ot; 1173; McCOrmick v; Rank, 165 U. S. 538,17 Sup. Ct. 433; Bahk v.Kefinedy, 167 S.· 362, 17 Sup. Ct. 831. InDliion Pltc.Ry. Co. v. Chicago, R. 1. & Co., Mr. Chief Justice Fuller said: ' ." ,.
"A contrlictinildeby the scope of its powers, express or implied, on a propel' construction of its charter, cannot be enforced or reno dered enforceable by the application of the doctrine of estoppe}."

In McCbrmick v. Bank, Mr. Justice Gray,speakipg for the court, said:
;. ''The ultra vires, by. which a contract made by a corporation beyond the scope of its corporate powers is unlawful and void, and will not support an action, rests, as this court has often recognized and a1linned, upon three distinct grounds: . The obligation of any one contracting with a corporation to take notice of the, legal limits of its. pow.ers; the interest of. the stockholders not to be subject to risks which they have never undertaken; and, above all, the interest of the public that the corporation shall not transcend the powers conferred upon it by law."

BOWEN V. NEEDLES NAT. BANK.

931

In Bankv. Kenned-yit was said:

of power by any act to assume the liability, and yet to say that by a particular act the liability res,ulted. ,The transaction, being absolutely void, could not be . cOI\firmed or ratijied."
"It would be a contradiction in terms to assert that there was a total want

In the case at bar the defendant bank is not in the position of having received the fruits of. the unlawful contract. The plaintiff's money was paid, not to the bank, but to Blake. It is not shown that the bank received any benefit whatever from the payment. There is no ground, therefore, upon which it can be adjudged that the bank shall make restitution. The judgment will be affirmed. ROSS, Oircuit Judge (dissenting). I agree, and so held in the case of Flannagan v. Bank, 56 Fed. 959, that a national bank has not the power to guaranty the debtor obligation of a third party; but, in my opinion, the findings of fact of the court below, upon which the present writ of error determined, do not present any such case. The complaintin the case counts upon four separate causes of action, each of the first three of which is upon a certain draft drawn by the defendant Needles Bank on the Ohase NationalBank, of New York, in favor of the plaintiff,' doing business under the name of Bowen & 00., and delivered to the plaintiff, according to the findings, in exchange for a check of Blake drawn on the defendant bank, and discounted by Bowen & Co. The checks of Blake on the defendant Needles Bank in favor of Bowen & Co. were thus honored by the defendant bank, and the amounts thereof necessarily entered upon its books on the debit side of Blake's account. When the plaintiff presented and delivered thooe checks of Blake to the defendant Needles Bank, and received from the latter, in exchange therefor, its own drafts in the plaintiff's favor on the Chase National Bank, of New York, the plaintiff manifestly parted with all of its interest in those checks of Blake, holding in exchange therefor the obligations of the -defendant bank. In respect to the first three cl1uses -of action, therefore, I am unable to see how, in view of the findings of fact, it can be properly held that the action is upon any guaranty of the debt or obligation of Blake. On the contrary, in respect to each of these three causes of action the defendant bank honored the checks of Blake dmwn upon it, and in exchange for them issued its own obligations, upon which the first three causes of action rest. There is nothing in the findings of fact to the effect or tending to show-what seems to be assumed in the prevailing opinion-that Bowen & 00. knew that the drafts drawn in its favor by the defendant bank, and issued in exchange for Blake's checks upon the defendant bank, were only to be paid by means of drafts drawn by the defendant bank on Blake and in favor of the Chase National Bank, of New York. It seems to me that the effect of the decision here is to attach a condition to the drafts of the defendant bank sued upon, which is altogether unauthorized by any fact made to appear in the findings of the court below. According to the complaint as it appears in the record, the fourth cause of action is upon a check drawn by Blake "upon the plaintiff, A. T. Bowen & Co.," which, it is alleged, the defendant bank guaran-

932

.04 FEDERAL REPORTER.

tied. If the complaint in respect to this cause of actiOn be so taken andl'considered, it is plain that in. respect toit the action is upon a gugranty which the defendant bank was not empowered to make. But the word "upon" was probably inserted in the:x;ecord by mistake in place of the words "in favor of," since the findingsbf fact are that this check was drawn upon the defendant bank and in favor of the plaintiff, Bowen & 00., and it is 'so treated in the opinion of the court below,' ailluiso in the opinion' of this' Thus considered, I am of opinion, in view of the findings of fact made by the court below, that in respect to this cause ofaction, also, the action is not upou any guaranty, but upon the direct promise of the defendant bank to pay the check so drawn by Blake upon it, upon the faith of which plaintiff, parted with his money. What I have said is promise based upon the findings of the court below, which, as I understand it, are to control the judgment of this court. In the opinion of the learned judge of the court below, however, reference is made to certain testimony given in ,the trial court tending to sMw that the plaintiff, Bowen & Co., did know that the drafts sued upon. were to be paid by other drafts drawn by the defendant bank upon Blake in favor of the Chase National Bank, of New York, and 'were only to be paid in the event of Blake's, paying those drafts, and that; in truth, all of the trani'lactionsin question constituted but the guaranty by the defendant blink of Blake's obligations, of which the plaintiff, Bowen & Co., had actual knowledge. 'The testimony thus alluded, to in the opinion of the trial judge '1indssome support in the ,agreement executed by Blake on the 12th of september, 1894, which is set out in the findings offlict that were made by the court below., The evidence in the case may have been amply sufficient to justify findings to the effect that all of the transactions sued upon in reality constituted but the guaranty on the part of the defendant bank of ,the obligations of BIake,and that the plaintiff, Bowen & Co., had knowledge thereof. The difficulty is that the findings do not show this state of facts, aml therefore I am of opinion that the judgment should be reversed, and the caUSe remanded fora new trial. '

NORTHERN PAC. RY. CO. v. McCORMICK. (Circuit Court of Appeals, Ninth Circuit. May 22, 1899.) No. 496. 1.
PUBLTC PACTFTC RATlJROAD GRANT-PUE-EMPTION RiGHTS.

, The provision of section 6 of the Northern Pacific Railroad grant, that "the odd sections of land· hereby granted" should not be liable to sale, or entry or pre-emption before or after their survey, except by the company, must be in connection with section 3, containing the gr!'lnt,. and which limited the !lame to lands to which the United States should "have fUll title * * * free from pre-emption or other claims 01' rights at the time the lien of said road is definitely fixedllnd the pll!lt thereof filed." IIence lands to which pre-emption rights had attached !at any time prior to the filing of the map of definite location, being reljerved from the grant, >yere not within the provisions of section 6, and up to that time the l"ight of pre-emption was not affected by any. thing in the act, or by the filing of the map of general route thereunder