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due, it seems, to the washing away of the captains and a lieutenant of engineers unold Napoleon island, 10 miles or so above. der the direction of the board of engineers. There is no serious attempt to cast doubt This exiibits Chapeau island with a dry upon this finding and we deem it correct. sand bar on the Mississippi side, and inIn connection with the finding it should be dicates by dots that the channel is to the noticed that a Mississippi statute of 1839, west. If the distances are accurate the repeated in the Code of 1857, p. 64, gives sand bar at the top approaches pretty near as one boundary of Bolivar county, “thence to Mississippi; but in view of the small down the main channel of the said Mis- scale of the map and the absence of meassissippi,” thus seemingly adopted the urements there is no sufficient warrant for channel as it then was, on the Mississippi assuming that the distances are accurate. side, as the true boundary, and furnishing As to the indication of the channel, it evidence from which we should not lightly would not be surprising, considering the depart. In 1849 the island was surveyed short time during which the reconnoiter and platted as part of Arkansas, and the extended, if it had been determined by survey was certified by William Pelham, nothing more than the visible width. But the surveyor of public lands in Arkansas. in any event it hardly would do more than The field notes state that the main channel confirm a conjecture suggested by other is on the Mississippi side, and that the sources which we shall mention, that in inhabitants of the island vote and pay some years the western passage was as taxes in Arkansas. They add that the good as or better than the more permanent channel or chute on the

on the other side is one to the east. wide, but in low water very shallow, and The next map is one certified January 22, that on December 27, 1845, the surveyor | 1829, of a survey in February, 1827, showing got his skiff through with difficulty. This the Arkansas shore sectionized and the is. is the most exact and authentic of the sur- land sketched in, with distances indicated at veys produced on either side.

some points, but not sectionized. This The presumption raised by the facts thus map cannot be said to help either side exfar recited is confirmed by the evidence of cept by speculation of an uncertain sort. The an old steamboat captain, whose personal next nap, however, is more definite. It experience went back to 1839. He testified is a map of township 21, range 8 west, Misthat he learned under his father and brotn sissippi, said to be projected from field notes er, and that they instructed him that the of Benjamin Griffin, also produced, made in channel was on the east side in 1812. He January and February, 1830. Here the is. further stated that one of the first woodland is divided up as part of the township, yards established on the Mississippi river although not sectionized under the United for selling wood to steamer was just above States statutes, and there are other slight No. 76 on the Mississippi side. Another indications that the draftsman regarded the witness, who lived in the neighborhood in island as belonging to Mississippi. This 1839 and after, testified that the channel map is more or less counteracted by anothwas considered to be on the east side, that er map of the same township signed by Benthe boats passed directly in front of her jamin Griffin, which does not sectionize the house, and that they could not pass up the island, and indicates, if it indicates any. chute on the other side, except in very high thing about it, that the channel is on the water. Having in mind the finding that we east side. The field notes in two places have quoted, we mention the last testi-speak of “where the west boundary comes mony only for the indication that it gives to the river,” and they give the width of of a more or less permanent condition ex the east channel at the top as 2,920 feet. isting at the time when the witness's mem- The defendants contend that the first menory began.

tioned of these two maps is the completed As against this consensus of action on work, but that hardly can be said to be the part of the two states concerned and proved. the United States, this presumption from In addition to these maps there is some the establishment of the channel for a correspondence, etc, from which it appears time running back nearly or quite to the that the island was selected by Mississippi admission of Arkansas, and this testimony under the swamp land act, and that after from memory and tradition, the chief re- the selection had been approved by the Secliance of the defendants is upon certain retary of the Interior, but before any patmaps and the statement in a letter to ent had issued, the island was sold by the which we shall refer. The first and most state in 1854 to one Ford. In 1859 Ford important of the maps is one of a “Recon- wrote to the governor of Mississippi comnoissance of the Mississippi and Ohio Riv- plaining that Arkansas claimed jurisdiction ers," made during the months of October, and that the island had been disposed of as November, and December, 1821, by two public domain within the limits of that state, asking the governor to claim a pat- a number of years at Pittsburg for the inent from Washington, and inclosing a let- formation of pilots, in 1806 the channel ter to the writer, Ford, from one Downing, is said to be good on both sides. In 1808 who is said to have been surveyor general of and 1811 it is said that the left (east) side Mississippi at an earlier date. This letter is the best in low water. In 1814, 1817, is much relied upon. It purports to answer and 1818, on the other hand, the best chanan inquiry as to the island, refers to the nel is said to be on the right side at all survey of 1830 or 1831, and says that at that stages. We refer to all the years that we time, and for some years after, the island have seen. In view of this statement for chute, as it was called, was quite narrow, the very year when Mississippi was admitnot over 100 yards wide about opposite the ted, it is impossible not to hesitate, but in middle of the island, and that at that time Cummings's Western Pilot for 1833 we read the writer never heard of a steamboat going “channel either side: the right is nearest, up or down on the east side. The main river and the left is probably rather deepest;' then passed on the west side. The writer and this seems to us to have been true for adds that he thinks it was in 1835 that he the whole time. Upon the whole evidence spent some time in examining the land in we are compelled to decide that the plain. T. 21, R. 8 W., and that the island chute tiffs have made out their case. was quite narrow then.

Decree reversed. Presumably this letter was written with knowledge of Ford's object, and it hardly Mr. Justice Harlan agrees with the circuit can be said to stand on the footing of dis- court as to both the facts and the law, and interested tradition. Whether it was ad- therefore dissents. missible or not we need not consider. It was forwarded to the Department of the Mr. Justice Peckham took no part in the Interior by the governor with Ford's claim. decision. The Commissioner answered the letter, expressing an opinion favorable to Mississippi from inspection of the plats and Downing's EDWARD H. LOVE, Plff. in Err., statement, and inclosing a similar opinion

V. of a former Commissioner in 1855, also from ANNIE FLAHIVE and Andrew J. Lansing. inspection of the plats. Both letters, however, called for evidence of the condition in Public lands-control of Land Department. 1817, and the later one specifically asked for 1. Findings of the Secretary of the Inan affidavit from Downing and another dis- terior to the effect that a designated party interested witness. It was assumed that to a controversy in the Land Department the land, or most of it, was disposed of, and had the right to enter the land as a homethat the question would be of reimburse

stead does not prevent such Department, if ment. The affidavits asked for seem not to ther inquiry, and, upon such inquiry, final.

patent has not issued, from instituting furhave been furnished, and nothing more aply awarding the land to the party held to pears to have been done until June 27, have a better right. 1896. At that date another letter from the Public lands-homestead-sale before patent Acting Commissioner speaks of the land as as abandonment. having been mostly disposed of before the 2. A sale of a homestead claim before swamp land act, and therefore not granted patent has issued, although void, may be by it, and suggests the submission of a treated by the Land Department as å relist containing the 51 acres not so disposed linquishment or abandonment by the seller of for approval to Mississippi, giving the of his homestead application and entry. governor sixty days for action. Nothing further was done.

[No. 236.] This evidence appears to us insufficient to meet the established facts to which we Submitted March 8, 1907. Decided March have referred. It must be admitted to

25, 1907. raise a doubt whether the channel has not varied from time to time before the great I State of Montana to review a judgment changes about 1881. This doubt is enhanced by other sources of information not which affirmed a judgment of the District put in evidence, but partially referred to Court of Missoula County, in that state, , by the plaintiffs at the argument. A map sustaining a demurrer to the complaint in in Samuel Cummings's Western Navigator, a suit to have the holder of the legal title Philadelphia, 1822, vol. 1, indicates the to real property adjudged to hold it in channel on the Arkansas side, and this is trust.

trust. Affirmed. confirmed by the text. Vol. 2, p. 44. In See same case below, 33 Mont. 348, 83 the Navigator, Zadok Cramer, published for | Pac. 882.

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Statement by Mr. Justice Brewer:

He also invokes the authority of Noble v. On December 3, 1900, Edward H. Love Union River Logging R. Co. 147 U. S. 176, commenced this suit in the district court | 37 L. ed. 127, 13 Sup. Ct. Rep. 271, to the of Missoula county, Montana, to have Annie effect that when, by the action of the De. Flahive, the holder of the legal title to a partment, a right of property has become specified tract in that county, adjudged to vested in an applicant, it can be taken hold it in trust for him. A demurrer to the away only by a proceeding directly for that complaint was sustained by the district purpose, and contends that his right to the court, and, no amendment being asked, land was determined by certain findings of judgment was entered for the defendants. the Commissioner of the General Land Office This judgment was affirmed by the supreme on July 26, 1892, affirmed by the Secretary court of the state (33 Mont. 348, 83 Pac. of the Interior on January 12, 1894. It is 882), from which court the case was brought doubtless true that when once a patent has here on writ of error.

issued the jurisdiction of the Land DepartThe facts, as stated in the complaint and ment over the land ceases, and any right attached exhibits, are that plaintiff, with the of the government or third parties must be purpose of entering the land as a homestead, asserted by proceedings in the courts. Unitand being qualified therefor, in May, 1882, ed States v. Stone, 2 Wall. 525, 535, 17 L. settled upon, occupied, and fenced the en. ed. 765, 767; Michigan Land & Lumber Co. tire tract, with the exception of the north v. Rust, 168 U. S. 589, 593, 42 L. ed. 591, 20 acres thereof. In addition to a contro 592, 18 Sup. Ct. Rep. 208, and cases cited. versy in the Land Department with the It may also be conceded that a right of Northern Pacific Railroad Company, which property may become vested by a decision claimed the land under its grant, but whose of the Land Department, of which the apclaim was finally rejected, he had a contest plicant cannot be deprived except upon proin the Land Department with Michael Fla- ceedings directly therefor, and of which he hive, who was also seeking to enter the has notice. Cornelius v. Kessel, 128 U, S. land, which, after several hearings before 456, 32 L. ed. 482, 9 Sup. Ct. Rep. 122; Orthe local land officers, with appeals to and chard v. Alexander, 157 U. S. 372, 383, 39 decisions by the Commissioner of the Gen- L. ed. 737, 741, 15 Sup. Ct. Rep. 635; Pareral Land Office and the Secretary of the sons v. Venzke, 164 U. S. 89, 41 L. ed. 360, Interior, resulted in a final decision against | 17 Sup. Ct. Rep. 27; Michigan Land & Lumhim and an award of the land to the de- ber Co. v. Rust, supra. Without undertakfendant Annie Flahive, the widow of Mi- ing to indicate the limits to which this chael Flahive, who had died pending the pro- can be carried, it is enough to say that the ceedings. In pursuance of that award a proceedings in this case, both in the local patent was issued to her in December, 1899. land offices and by appeals and reviews in

the General Land Office, were within the Messrs. Thomas C. Bach and Charles Edo settled rules of procedure established by the mund Pew for plaintiff in error.

Department in respect to such matters. Messrs. S. M. Stockslager, George C. Generally speaking, the Land Department Heard, Elmer E. Hershey, and Woody & has jurisdiction until the legal title has Woody for defendants in error.

passed, and the several steps in this con

troversy were before the issue of the patMr. Justice Brewer delivered the opinion ent, while the jurisdiction of the Land Deof the court:

partment continued, and with both parties Plaintiff rests his case on the contention present and participating. The question of that in the conclusions of the Secretary of title was in process of administration, and the Interior there was error in matter of until the patent issued nothing was settled law, inasmuch as it is well settled that in so as to stop further inquiry. Knight v. the absence of fraud or imposition the find- United Land Asso. 142 U. S. 161, 35 L. ed. ings of the Land Department on matters of 974, 12 Sup. Ct. Rep. 258; Michigan Land fact are conclusive upon the courts. John & Lumber Co. v. Rust, supra. So, although son v. Towsley, 13 Wall. 72, 20 L. ed. 485; it be conceded that the findings of the SecLee v. Johnson, 116 U. S. 48, 29 L. ed. 570, retary of the Interior, in 1894, were to the 6 Sup. Ct. Rep. 249; Lake Superior Ship effect that the plaintiff had a right to enCanal, R. & Iron Co. v. Cunningham, 155 U. ter the land, that decision was not final, S. 354, 375, 39 L. ed. 183, 190, 15 Sup. Ct. and it was within the jurisdiction of the Rep. 103; Burfenning v. Chicago, St. P. M. Land Department to institute further in& O. R. Co. 163 U. S. 321, 323, 41 L. ed. quiry, and upon it to finally award the land 175, 176, 16 Sup. Ct. Rep. 1018; Gonzales v. to the party held to have the better right. French, 164 U. S. 338, 41 L. ed. 458, 17 Sup. This brings us to the pivotal fact. It apCt. Rep. 102; Johnson v. Drew, 171 U. S. 93, pears from the complaint and exhibits that 89, 43 L. ed. 88, 90, 18 Sup. Ct. Rep. 800. during the time that these proceedings were

pending in the Lond Department, Love made troversy; and that he is in equity and good a sale to James Rundall of the tract in faith estopped from asserting title against controversy, or some other tract, or some the vendee of the purchaser from him. logs, and that Rundall thereafter made a “The decision appealed from is therefore sale of the same property to Flahive. What affirmed and the application of Love to enwas the thing sold is not positively shown ter the tract in controversy is held subject by the testimony. In the final decision of to the rights of Annie Flahive, the widow the case the Secretary of the Interior, after of Michael Flahive." giving a synopsis of the testimony, which Of course, whether there was a sale, and he says is largely incomplete and irrelevant what was the thing sold, were matters of and not entirely satisfactory upon the ques. fact to be determined by the testimony, and tion, says:

the findings of the Land Department in “The witnesses Vanderpool and Lynch tes that respect are conclusive in the courts. tify that Love had a place for sale which It is objected by the plaintiff that a sale included the tract in controversy; Rundall, of a homestead prior to the issue of patthat he purchased the tract in controversy ent is void under the statutes of the United from Love. The latter denies any sale of States. Anderson v. Carkins, 135 U. S. 483, the land, but states that he sold some logs 34 L. ed. 272, 10 Sup. Ct. Rep. 905. This is for W. H. Finley. It is evident from Love's undoubtedly the law, and the ruling of the statement of the transaction that, conced- Secretary was not in conflict with it; but ing the sale to be only of logs, he was aware the fact that one seeking to enter a tract that the land upon which the logs were sit- of land as a homestead cannot make a valid uated would be claimed by the purchaser of sale thereof is not at all inconsistent with the logs, not by virtue of the sale of the his right to relinquish his application for logs, but because it appears that he sold the the land, and so the Secretary of the Inlogs for the reason that the claim of W. H. terior ruled. While public policy may preFinley, upon which the logs were situated, vent enforcing a contract of sale, it does was about to be taken by Rundall.

not destroy its significance as a declaration

that the vendor no longer claims any rights. "It appears that a clear preponderance of He cannot sell and at the same time deny the testimony shows that the logs were sit- that he has made a sale. The government uated upon the land in controversy; and may fairly treat it as a relinquishmentfrom Love's evidence it is shown that he, an abandonment-of his application and enat the time of this sale, laid no claim to the try. No man entering land as a homestead land upon which this unfinished cabin was is bound to perfect his title by occupation. erected.

He may abandon it at any time, or he may

in any other satisfactory way relinquish "It thus appears that from a preponder- the rights acquired by his entry. Having ance of the testimony it is shown that this done that, he is no longer interested in the tract of land was not claimed by Love at title to the land. That is a matter to be the date of the sale of this land or of these settled between the government and other logs; for it is evident that in either case applicants. In this case, Love having reLove asserted no title. It matters not, un- linquished his claim, it does not lie in his der the peculiar circumstances of this case, mouth to challenge the action of the gove whether Love sold his own land or the land ernment in patenting the land to Mrs. Flaof W. H. Finley, or simply logs; as in the hive. first instance it would work an estoppel of We see no error in the record, and the the assertion of claim now, in the second judgment of the Supreme Court of Montana it would be conclusive evidence that the land is affirmed. was not claimed by him, and in the third it

Mr. Justice White took no part in the dewould be equally evidence of the same fact, cision of this case. as, from his own testimony, it appears that he laid no claim to the land upon which the logs were situated.

ALBERT K. HISCOCK, Trustee in Bank. "This decision is not to be understood

ruptcy of Jacob M. Mertens, Charles R. as holding that Love, in selling the Finley Mertens, Ernest T. Mertens, and Edmund claim to Rundall, conveyed to the latter A. Mertens, Individually and as Composany title, or that Rundall, in selling to Fla- ing the Copartnership Firm of “J. M. hive, did so; but it appearing that this

Mertens & Co.," Bankrupts, Petitioner. sale was made, it is conclusive evidence that

JACOB M. MERTENS. Love asserted, at that time, no title in himself, or, if he had prior to such time as. Bankruptcy — assets — life insurance-cash serted title, that by such sale he relin- surrender value. quished all claim in and to the tract in con- 1. The words "cash surrender value," as



used in the proviso to $ 70 of the bankrupt | upon his appointment and qualification, act of July 1, 1898 (30 Stat. at L. 565, chap.

shall in turn be vested by opera541, U. S. Comp. Stat. 1901, p. 3451), which tion of law with the title of the bankrupt permits a bankrupt to redeem a policy of | as of the date he was adjudged a bankrupt, insurance on his life from the claims of creditors by paying or securing to the trustees except in so far as it is to property which the cash surrender value, embrace policies is exempt, to all (1) documents relating to which, by their terms, or by the practice his property

(3) powers which he or concession of the company issuing them, might have exercised for his own benefit, have such value.

but not those which he might have exerBankruptcy-assets-life insurance cash cised for some other person

(5) propsurrender value.

erty which, prior to the filing of the peti2. The investment feature of so-called tion, he could, by any means, have transtontine policies of life insurance does not ex. ferred, or which might have been levied upclude them from the proviso to $ 70 of the on and sold under judicial process against bankrupt act of July 1, 1898, which permits him: Provided, That when any bankrupt the bankrupt to redeem a policy of insurance on his life from the claims of credit- shall have any insurance policy which has ors by paying or securing to the trustee a cash surrender value payable to himself, its cash surrender value.

his estate or personal representatives, he Bankruptcy-assets-life insurance cash may, within thirty days after the cash sursurrender value.

render value has been ascertained and state 3. Life insurance policies which had noted to the trustee by the company issuing lapsed either when the petition to have the the same, pay or secure to the trustee the insured declared a bankrupt was filed, or sum so ascertained and stated, and conwhen the bankruptcy was adjudged, have a tinue to hold, own, and carry such policy cash surrender value within the meaning of the proviso to $ 70 of the bankrupt act of free from the claims of the creditors parJuly 1, 1898, which permits a bankrupt to ticipating in the distribution of his estate redeem a policy of insurance on his life under the bankruptcy proceedings; other. from the claims of the creditors by paying wise the policy shall pass to the trustee as or securing to the trustee the cash surren- assets.” [30 Stat. at L. 565, chap. 541, U. der value within thirty days after such val. S. Comp. Stat. 1901, p. 3451.] ue has been ascertained and stated to the

The respondent and his sons, individually trustee by the company issuing the policy, and as composing the copartnership of J. although it may be the practice of the com- M. Mertens & Company, were declared bank. pany not to accept a surrender until the pol- rupts, and petitioner was elected the trustee icy has lapsed.

of their estate October 14, 1903. [No. 209.]

At the time the petition in bankruptcy

was filed Mertens held four life insurance Argued February 27, 1907. Decided March policies issued by the Equitable Life As25, 1907.

surance Society of the United States. One

of the policies, payable to his wife if she ON

WRIT of Certiorari to the United should survive him, has been dropped from State Court this controversy. The other three policies Second Circuit to review a judgment which were payable to Mertens at his death, his reversed an adjudication of the District executors, administrators, assignees. Court for the Northern District of New They were subject to certain claims arising York that certain policies of insurance on from their having been assigned as security the life of a bankrupt had no cash sur- for certain loans. With these we are not render value and passed to the trustee in concerned. bankruptcy. Affirmed.

A dispute arose as to the ownership of the See same case below, 142 Fed. 445. policies, and the trustee filed a petition in The facts are stated in the opinion. the district court for the determination of Mr. Will B. Crowley for petitioner. the ownership of them, and that Mertens be Mr. Dorr Raymond Cobb for respondent. required to make an assignment of them to

the trustee. Mertens answered, alleging Mr. Justice McKenna delivered the opin- | that the policies had, by law and the regular ion of the court:

practice of the Equitable Life Assurance The question in this case is whether the Society, a cash surrender value which he cash surrender value of a policy of insur- had sought to pay to the trustee, and was ance under § 70–2–5 of the bankruptcy act ready and willing to pay; that it was the must be provided for in the policy, or uniform practice of the society to pay, whether it be sufficient if the policy have upon the surrender of such policies and on such value by the concession or practice policies issued on any of the blank forms of the company. Section 70 provides that shown by the policies, the cash value there"the trustee of the estate of a bankrupt,' of “determined in accordance with a fixed


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