due, it seems, to the washing away of the old Napoleon island, 10 miles or so above. There is no serious attempt to cast doubt upon this finding and we deem it correct. In connection with the finding it should be noticed that a Mississippi statute of 1839, repeated in the Code of 1857, p. 64, gives as one boundary of Bolivar county, "thence down the main channel of the said Mississippi," thus seemingly adopted the channel as it then was, on the Mississippi side, as the true boundary, and furnishing evidence from which we should not lightly depart. In 1849 the island was surveyed and platted as part of Arkansas, and the survey was certified by William Pelham, the surveyor of public lands in Arkansas. The field notes state that the main channel is on the Mississippi side, and that the inhabitants of the island vote and pay taxes in Arkansas. They add that the channel or chute on the other side is wide, but in low water very shallow, and that on December 27, 1845, the surveyor got his skiff through with difficulty. This is the most exact and authentic of the surveys produced on either side. The presumption raised by the facts thus far recited is confirmed by the evidence of an old steamboat captain, whose personal experience went back to 1839. He testified that he learned under his father and brot er, and that they instructed him that the channel was on the east side in 1812. He further stated that one of the first wood yards established on the Mississippi river for selling wood to steamer was just above No. 76 on the Mississippi side. Another witness, who lived in the neighborhood in 1839 and after, testified that the channel was considered to be on the east side, that the boats passed directly in front of her house, and that they could not pass up the chute on the other side, except in very high water. Having in mind the finding that we have quoted, we mention the last testimony only for the indication that it gives of a more or less permanent condition existing at the time when the witness's memory began. As against this consensus of action on the part of the two states concerned and captains and a lieutenant of engineers under the direction of the board of engineers. This exhibits Chapeau island with a dry sand bar on the Mississippi side, and indicates by dots that the channel is to the west. If the distances are accurate the sand bar at the top approaches pretty near to Mississippi; but in view of the small scale of the map and the absence of measurements there is no sufficient warrant for assuming that the distances are accurate. As to the indication of the channel, it would not be surprising, considering the short time during which the reconnoiter extended, if it had been determined by nothing more than the visible width. But in any event it hardly would do more than confirm a conjecture suggested by other sources which we shall mention, that in some years the western passage was as good as or better than the more permanent one to the east. The next map is one certified January 22, 1829, of a survey in February, 1827, showing the Arkansas shore sectionized and the island sketched in, with distances indicated at some points, but not sectionized. This map cannot be said to help either side except by speculation of an uncertain sort. The next map, however, is more definite. It is a map of township 21, range 8 west, Mississippi, said to be projected from field notes of Benjamin Griffin, also produced, made in January and February, 1830. Here the island is divided up as part of the township, although not sectionized under the United States statutes, and there are other slight indications that the draftsman regarded the island as belonging to Mississippi. This map is more or less counteracted by another map of the same township signed by Benjamin Griffin, which does not sectionize the island, and indicates, if it indicates anything about it, that the channel is on the east side. The field notes in two places speak of "where the west boundary comes to the river," and they give the width of the east channel at the top as 2,920 feet. The defendants contend that the first mentioned of these two maps is the completed work, but that hardly can be said to be proved. 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, who is said to have been surveyor general of Mississippi at an earlier date. This letter is much relied upon. It purports to answer an inquiry as to the island, refers to the survey of 1830 or 1831, and says that at that time, and for some years after, the island chute, as it was called, was quite narrow, not over 100 yards wide about opposite the middle of the island, and that at that time the writer never heard of a steamboat going up or down on the east side. The main river then passed on the west side. The writer adds that he thinks it was in 1835 that he spent some time in examining the land in T. 21, R. 8 W., and that the island chute was quite narrow then. It is said to be good on both sides. In 1808 Mr. Justice Harlan agrees with the circuit court as to both the facts and the law, and therefore dissents. Mr. Justice Peckham took no part in the decision. EDWARD H. LOVE, Plff. in Err., V. ANNIE FLAHIVE and Andrew J. Lansing. Public lands-control of Land Department. Presumably this letter was written with knowledge of Ford's object, and it hardly can be said to stand on the footing of disinterested tradition. Whether it was admissible or not we need not consider. was forwarded to the Department of the Interior by the governor with Ford's claim. The Commissioner answered the letter, expressing an opinion favorable to Mississippi from inspection of the plats and Downing's statement, and inclosing a similar opinion of a former Commissioner in 1855, also from inspection of the plats. Both letters, however, called for evidence of the condition in 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, finalpatent 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, 1896. At that date another letter from the Acting Commissioner speaks of the land as having been mostly disposed of before the swamp land act, and therefore not granted by it, and suggests the submission of a list containing the 51 acres not so disposed of for approval to Mississippi, giving the governor sixty days for action. Nothing further was done. have a better right. Public lands-homestead-sale before patent as abandonment. 2. A sale of a homestead claim before patent has issued, although void, may be treated by the Land Department as a relinquishment or abandonment by the seller of his homestead application and entry. [No. 236.] This evidence appears to us insufficient to meet the established facts to which we Submitted March 8, 1907. have referred. It must be admitted to raise a doubt whether the channel has not 25, 1907. Decided varied from time to time before the great IN ERROR to the Supreme Court of the State of Montana to review a judgment which affirmed a judgment of the District Court of Missoula County, in that state, sustaining a demurrer to the complaint in a suit to have the holder of the legal title to real property adjudged to hold it in trust. Affirmed. changes about 1881. This doubt is enhanced by other sources of information not put in evidence, but partially referred to by the plaintiffs at the argument. A map in Samuel Cummings's Western Navigator, Philadelphia, 1822, vol. 1, indicates the channel on the Arkansas side, and this is 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. He also invokes the authority of Noble v. Union River Logging R. Co. 147 U. S. 176, 37 L. ed. 127, 13 Sup. Ct. Rep. 271, to the effect that when, by the action of the De Statement by Mr. Justice Brewer: On December 3, 1900, Edward H. Love commenced this suit in the district court of Missoula county, Montana, to have Annie Flahive, the holder of the legal title to apartment, a right of property has become specified tract in that county, adjudged to hold it in trust for him. A demurrer to the complaint was sustained by the district court, and, no amendment being asked, judgment was entered for the defendants. This judgment was affirmed by the supreme court of the state (33 Mont. 348, 83 Pac. 882), from which court the case was brought here on writ of error. vested in an applicant, it can be taken away only by a proceeding directly for that purpose, and contends that his right to the land was determined by certain findings of the Commissioner of the General Land Office on July 26, 1892, affirmed by the Secretary of the Interior on January 12, 1894. It is doubtless true that when once a patent has issued the jurisdiction of the Land Department over the land ceases, and any right of the government or third parties must be asserted by proceedings in the courts. United States v. Stone, 2 Wall. 525, 535, 17 L. The facts, as stated in the complaint and attached exhibits, are that plaintiff, with the purpose of entering the land as a homestead, and being qualified therefor, in May, 1882, settled upon, occupied, and fenced the en-ed. 765, 767; Michigan Land & Lumber Co. tire tract, with the exception of the north 20 acres thereof. In addition to a controversy in the Land Department with the Northern Pacific Railroad Company, which claimed the land under its grant, but whose claim was finally rejected, he had a contest in the Land Department with Michael Flahive, who was also seeking to enter the land, which, after several hearings before the local land officers, with appeals to and decisions by the Commissioner of the General Land Office and the Secretary of the Interior, resulted in a final decision against | him and an award of the land to the defendant Annie Flahive, the widow of Michael Flahive, who had died pending the proceedings. In pursuance of that award a patent was issued to her in December, 1899. v. Rust, 168 U. S. 589, 593, 42 L. ed. 591, 592, 18 Sup. Ct. Rep. 208, and cases cited. It may also be conceded that a right of property may become vested by a decision of the Land Department, of which the applicant cannot be deprived except upon proceedings directly therefor, and of which he has notice. Cornelius v. Kessel, 128 U. S. 456, 32 L. ed. 482, 9 Sup. Ct. Rep. 122; Orchard v. Alexander, 157 U. S. 372, 383, 39 L. ed. 737, 741, 15 Sup. Ct. Rep. 635; Parsons v. Venzke, 164 U. S. 89, 41 L. ed. 360, 17 Sup. Ct. Rep. 27; Michigan Land & Lumber Co. v. Rust, supra. Without undertaking to indicate the limits to which this can be carried, it is enough to say that the proceedings in this case, both in the local land offices and by appeals and reviews in the General Land Office, were within the Ed-settled rules of procedure established by the Department in respect to such matters. Generally speaking, the Land Department has jurisdiction until the legal title has passed, and the several steps in this controversy were before the issue of the pat Messrs. Thomas C. Bach and Charles & Mr. Justice Brewer delivered the opinion ent, while the jurisdiction of the Land Deof the court: Plaintiff rests his case on the contention that in the conclusions of the Secretary of the Interior there was error in matter of law, inasmuch as it is well settled that in the absence of fraud or imposition the findings of the Land Department on matters of fact are conclusive upon the courts. Johnson v. Towsley, 13 Wall. 72, 20 L. ed. 485; Lee v. Johnson, 116 U. S. 48, 29 L. ed. 570, 6 Sup. Ct. Rep. 249; Lake Superior Ship Canal, R. & Iron Co. v. Cunningham, 155 U. S. 354, 375, 39 L. ed. 183, 190, 15 Sup. Ct. Rep. 103; Burfenning v. Chicago, St. P. M. & O. R. Co. 163 U. S. 321, 323, 41 L. ed. 175, 176, 16 Sup. Ct. Rep. 1018; Gonzales v. French, 164 U. S. 338, 41 L. ed. 458, 17 Sup. Ct. Rep. 102; Johnson v. Drew, 171 U. S. 93, 99, 43 L. ed. 88, 90, 18 Sup. Ct. Rep. 800. partment continued, and with both parties present and participating. The question of title was in process of administration, and until the patent issued nothing was settled so as to stop further inquiry. Knight v. United Land Asso. 142 U. S. 161, 35 L. ed. 974, 12 Sup. Ct. Rep. 258; Michigan Land & Lumber Co. v. Rust, supra. So, although it be conceded that the findings of the Secretary of the Interior, in 1894, were to the effect that the plaintiff had a right to enter the land, that decision was not final, and it was within the jurisdiction of the Land Department to institute further inquiry, and upon it to finally award the land to the party held to have the better right. This brings us to the pivotal fact. It appears from the complaint and exhibits that during the time that these proceedings were "The decision appealed from is therefore affirmed and the application of Love to enter the tract in controversy is held subject to the rights of Annie Flahive, the widow of Michael Flahive." 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 sale of the same property to Flahive. What was the thing sold is not positively shown by the testimony. In the final decision of the case the Secretary of the Interior, after giving a synopsis of the testimony, which he says is largely incomplete and irrelevant and not entirely satisfactory upon the question, says: "The witnesses Vanderpool and Lynch testify that Love had a place for sale which included the tract in controversy; Rundall, that he purchased the tract in controversy from Love. The latter denies any sale of the land, but states that he sold some logs for W. H. Finley. It is evident from Love's statement of the transaction that, conceding the sale to be only of logs, he was aware that the land upon which the logs were situated would be claimed by the purchaser of the logs, not by virtue of the sale of the logs, but because it appears that he sold the logs for the reason that the claim of W. H. Finley, upon which the logs were situated, was about to be taken by Rundall. "It appears that a clear preponderance of the testimony shows that the logs were situated upon the land in controversy; and from Love's evidence it is shown that he, at the time of this sale, laid no claim to the land upon which this unfinished cabin was erected. "It thus appears that from a preponderance of the testimony it is shown that this tract of land was not claimed by Love at the date of the sale of this land or of these logs; for it is evident that in either case Love asserted no title. It matters not, under the peculiar circumstances of this case, whether Love sold his own land or the land of W. H. Finley, or simply logs; as in the first instance it would work an estoppel of the assertion of claim now, in the second it would be conclusive evidence that the land was not claimed by him, and in the third it would be equally evidence of the same fact, as, from his own testimony, it appears that he laid no claim to the land upon which the logs were situated. Of course, whether there was a sale, and what was the thing sold, were matters of fact to be determined by the testimony, and the findings of the Land Department in that respect are conclusive in the courts. It is objected by the plaintiff that a sale of a homestead prior to the issue of patent is void under the statutes of the United States. Anderson v. Carkins, 135 U. S. 483, 34 L. ed. 272, 10 Sup. Ct. Rep. 905. This is undoubtedly the law, and the ruling of the Secretary was not in conflict with it; but the fact that one seeking to enter a tract of land as a homestead cannot make a valid sale thereof is not at all inconsistent with his right to relinquish his application for the land, and so the Secretary of the Interior ruled. While public policy may prevent enforcing a contract of sale, it does not destroy its significance as a declaration that the vendor no longer claims any rights. He cannot sell and at the same time deny that he has made a sale. The government may fairly treat it as a relinquishmentan abandonment-of his application and entry. No man entering land as a homestead is bound to perfect his title by occupation. He may abandon it at any time, or he may in any other satisfactory way relinquish the rights acquired by his entry. Having done that, he is no longer interested in the title to the land. That is a matter to be settled between the government and other applicants. In this case, Love having relinquished his claim, it does not lie in his mouth to challenge the action of the government in patenting the land to Mrs. Flahive. We see no error in the record, and the judgment of the Supreme Court of Montana is affirmed. Mr. Justice White took no part in the decision of this case. ALBERT K. HISCOCK, Trustee in Bankruptcy of Jacob M. Mertens, Charles R. Mertens, Ernest T. Mertens, and Edmund A. Mertens, Individually and as Composing the Copartnership Firm of "J. M. Mertens & Co.," Bankrupts, Petitioner. "This decision is not to be understood as holding that Love, in selling the Finley claim to Rundall, conveyed to the latter any title, or that Rundall, in selling to Flahive, did so; but it appearing that this sale was made, it is conclusive evidence that 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 relinquished all claim in and to the tract in con V. JACOB M. MERTENS. surrender value. 1. The words "cash surrender value," S insurance on his life from the claims of cred 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. 541, U. S. Comp. Stat. 1901, p. 3451), which permits a bankrupt to redeem a policy of itors by paying or securing to the trustees the cash surrender value, embrace policies which, by their terms, or by the practice or concession of the company issuing them, have such value. shall in turn be vested by operation of law with the title of the bankrupt as of the date he was adjudged a bankrupt, except in so far as it is to property which is exempt, to all (1) documents relating to his property (3) powers which he might have exercised for his own benefit, but not those which he might have exerBankruptcy-assets-life insurance cash cised for some other person ... (5) property 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 8 70 of the bankrupt act of July 1, 1898, which permits the bankrupt to redeem a policy of insurance on his life from the claims of creditors by paying or securing to the trustee surrender value. its cash surrender value. on and sold under judicial process against him: Provided, That when any bankrupt shall have any insurance policy which has a cash surrender value payable to himself, his estate or personal representatives, he may, within thirty days after the cash surrender value has been ascertained and stat the same, pay or secure to the trustee the sum so ascertained and stated, and continue to hold, own, and carry such policy free from the claims of the creditors participating in the distribution of his estate under the bankruptcy proceedings; otherwise the policy shall pass to the trustee as assets." [30 Stat. at L. 565, chap. 541, U. S. Comp. Stat. 1901, p. 3451.] 3. Life insurance policies which had noted to the trustee by the company issuing lapsed either when the petition to have the insured declared a bankrupt was filed, or when the bankruptcy was adjudged, have a cash surrender value within the meaning of the proviso to § 70 of the bankrupt act of July 1, 1898, which permits a bankrupt to redeem a policy of insurance on his life from the claims of the creditors by paying or securing to the trustee the cash surrender value within thirty days after such value 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 bankpany not to accept a surrender until the pol-rupts, and petitioner was elected the trustee icy has lapsed. [No. 209.] of their estate October 14, 1903. 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 As ON 25, 1907. N WRIT of Certiorari to the United State Circuit Court of Appeals for the Second Circuit to review a judgment which reversed an adjudication of the District Court for the Northern District of New York that certain policies of insurance on the life of a bankrupt had no cash surrender value and passed to the trustee in bankruptcy. Affirmed. See same case below, 142 Fed. 445. surance Society of the United States. One of the policies, payable to his wife if she should survive him, has been dropped from this controversy. The other three policies were payable to Mertens at his death, his executors, administrators, or assignees. They were subject to certain claims arising from their having been assigned as security for certain loans. With these we are not concerned. A dispute arose as to the ownership of the policies, and the trustee filed a petition in the district court for the determination of the ownership of them, and that Mertens be 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: The question in this case is whether the cash surrender value of a policy of insurance under § 70-2-5 of the bankruptcy act must be provided for in the policy, or whether it be sufficient if the policy have such value by the concession or practice of the company. Section 70 provides that "the trustee of the estate of a bankrupt, practice of the Equitable Life Assurance Society, a cash surrender value which he had sought to pay to the trustee, and was ready and willing to pay; that it was the uniform practice of the society to pay, upon the surrender of such policies and on policies issued on any of the blank forms shown by the policies, the cash value thereof "determined in accordance with a fixed |