989 *687 judgment. Murphy having afterwards died, his administratrix and Streeper appealed to this court. See 2 Utah, 557, and 1 Pac. Rep. 470. It is assigned for error that the complaint is insufficient to support the judgment, because the first two causes of action, those relating to Exhibits A and B, do not allege the value of the goods consigned, either by the article or in the aggregate. The objection made is that, although the agreement states the shares to which the plaintiff and the consignees are to be respectively entitled, it fixes no price on the machines. The answer to this is that the agreement states that the retail prices for which the machines consigned are sold, as reported by the consignees, are the prices on which the commissions of the consignees are to be calculated; and that the agreement fixes the prices of parts of machines at 40 per cent. discount from list prices, and the prices of attachments at the lowest wholesale rates. By the agreement, when the fixed commissions are deducted from the retail prices of sales, the rest belongs to the plaintiff; and Exhibit A shows the retail price of each machine sold, as reported by the consignees, and how much they retained beyond what they were entitled to retain as commissions, and Exhibit B shows the price of each attachment sold to the consignees. The Exhibits, in connection with the complaint, make the matter definite. It is also contended, as to the first two causes of action, that the liability of the defendants arose on the sales of goods to the consignees, and that the two years' limitation applies to those causes of action. Murphy and Streeper wer not parties to the agreement. Their liability arose on the bond exclusively. All the defendants were parties to the bond. This is a suit on the bond, and what are called by the defendants causes of action are only breaches of the condition of the bond. As the agreement was executory, it was necessary to set out consignments and sales, and resulting amounts due, to establish breaches. Even as regards the consignees, an action against them, if not on the bond, would be on the written agreement. The condition of the bond is that the consignees shall pay all moneys which shall become due "under or pursuant to the within contract, or which shall arise therefrom, whether by book-accounts, notes, renewals, or extensions of notes or accounts." We are of opinion that, this suit being on a written instrument, the limitation was four years, and the action was not barred. It is also urged that Streeper and Murphy are not bound for the payment of the notes made or guarantied by the consignees, and that their obligation was discharged when those notes were made or guarantied. But it appears clear to us that the condition of the bond is that the consignees shall pay all money which shall become due by their notes or their indorsements, or otherwise, (the agreement making the indorsement a guaranty of payment.) Language could hardly be stronger or more full. Dixon v. Holdroyd, 7 El. & Bl. 903. It is also urged that the facts found constitute an estoppel, as to Murphy and Streeper. The findings of fact negative the allegations of the answer setting up this defense. What occurred in November, 1876, is outside of any issue raised by the answer. A point is made that the complaint does not aver that Murphy and Streeper had notice of the default of the consignees; that no notice is shown; and that the bond contains no waiver of such notice. Assuming that the point may now be taken, the findings are silent as to notice, but they show there was no prejudice for want of notice. Moreover, the condition of the bond is absolute that the consignees shall pay all moneys which shall become due to the plaintiff under the agreement, the obligors waiving notice of non-payment on all notes executed, indorsed, or guarantied. As Murphy and Streeper did not make or indorse the notes, their waiver could only apply to a default by the consignees. We see no error in the record, and the judgment is affirmed. See Murphy v. Victor S. M. Co. ante, 324. 1512 (112 U. S. 693) WHITNEY and another v. MORROW.1 1. PUBLIC LANDS-ACT OF CONGRESS-MILITARY RESERVATION-DISPOSSESSION OF OC CUPANT-PROOF NECESSARY. A party who contests the title of another to land held under an act of congress, in which an exception was reserved saving from its operation land occupied by the United States for military purposes, must establish the exception, when his right to the premises depends upon its existence. 2. SAME-EVIDENCE-SCOPE AND EFFECT Of a Patent. If, by a legislative declaration, a specific tract of land is confirmed to any one, his title is not strengthened by a subsequent patent from the government. Such a patent would be an instrument of quiet and security to the patentee, but it would not add to the validity and completeness of the title confirmed by the act of congress. In Error to the Supreme Court of the State of Wisconsin. Enoch Totten, for plaintiffs in error. No appearance for defendant in error. FIELD, J. This case was before this court at the October term of 1877. 95 U. S. 551. It is an action of ejectment for the possession of a tract of land, consisting of 94 acres and a fraction of an acre, situated in the borough of Fort Howard, in Brown county, Wisconsin. The plaintiffs derived their title to the premises from one Pierre Grignon, to whom, on June 2, 1870, a patent was issued by the United States. The defendant, in his answer, sets up an adverse possession of the land in himself, and those through whom he derived his interest, for more than 40 years, under a claim of title, exclusive of any other right, founded upon a written instrument as a conveyance of the premises. It was admitted that he was in the possession of the land at the commencement of the action, and on the trial he relied, not only upon his adverse possession, but also upon a legislative confirmation of a claim to it, under the act of February 21, 1823, by Alexis Gardapier, from whom he traced his title. It appeared on that trial that commissioners under the act, which revived and continued in force certain previous acts for the adjustment of land claims in the territory of Michigan,which then included Wisconsin,— had confirmed a claim to land presented by said Gardapier and one presented by Pierre Grignon. The confirmations were subject to the condition that the tracts confirmed did not interfere with certain previous confirmations. On April 17, 1828, congress confirmed the acts of the commissioners respecting these claims; that is, "confirmed the confirmations," with a proviso, however, that they should not be so construed as to extend to any lands occupied by the United States for military purposes. The act also made it the duty of the register of the land-office at Detroit to issue to the claimants certificates, upon which patents were to be granted by the commissioner of the general landoffice. But it did not appear on the trial that any patent had ever been issued to Gardapier. The court held that if, at the time of the confirmation, the land claimed by him was not occupied by the United States for military purposes, it operated to vest in him a perfect title to the land; a legislative confirmation always operating, unless accompanied with reservations, as a conveyance of the estate, or right of the government, to the party who is in possession of the premises or has an interest in them. The tract confirmed appeared to have clearly defined boundaries, or, at least, such as were capable of identification. The question, therefore, whether the land was thus occupied was of the utmost consequence, and the defendant offered, in various forms, to prove, by witnesses produced for that purpose, that it was not thus occupied on the confirmation by congress, and had not been previously; and also that for a period of nearly 40 years the land had been in the actual, open, notorious, and exclusive possession of Gardapier and parties claiming under him, and that during that time it had been cultivated, improved, and built upon without objection from any one. But the court re 1S. C. 6 N. W. Rep. 494. 695 *696 fused to admit the proof, and also refused an instruction to the jury, which was requested, that in order to find for the plaintiff they must be satisfied that the land was occupied for military purposes on April 17, 1828, or was reserved for military purposes at that time, or was treated by the government as thus reserved. The plaintiff recovered, but for the error in this ruling and refusal, this court reversed the judgment and ordered a new trial. On the second trial, the judgment in which is now before us for review, no proof was offered of the military occupation; the plaintiffs relying upon the patent to Grignon, and the defendant upon the legislative confirmation of the claim to Gardapier, which operated to perfect his title to the tract named, including the premises in controversy, if it were not excepted by its occupation by the United States for military purposes. Such an exception, if it existed, should have been established by the plaintiffs, whose right to the premises depended upon its existence. If the land was thus occupied the confirmation did not apply, and it remained public property. That which was essential to the plaintiffs' recovery was not, therefore, established, nor was any evidence offered for that purpose. The confirmation to Gardapier and the title which followed to the tract designated stood unquestioned, and justified the direction given to the jury that they should find for the defendant. It would seem that the plaintiffs offered a patent to Gardapier, also issued in 1870, and that its admission was refused. We cannot see what bearing it may have had, as a copy of it is not contained nor are its contents stated in the record. It could not deprive the confirmee of the land confirmed to him by the act of congress if that was by specific boundaries, distinguishing and separating it from other parcels, or was capable of identification. If, by a legislative declaration, a specific tract is confirmed to any one, his title is not strengthened by a subsequent patent from the government. That instrument may be of great service to him in proving his title, if contested, and the extent of his land, especially when proof of its boundaries would otherwise rest in the uncertain recollection of witnesses. It would thus be an instrument of quiet and security to him, but it could not add to the validity and completeness of the title confirmed by the act of congress. Langdeau v. Hanes, 21 Wall. 521; Ryan v. Carter, 93 U. S. 78; Tripp v. Spring, 5 Sawy. 209, 216. If there was any difference in the grade of the two conveyances of the government, that by a direct legislative act, and that by officers acting under provisions of the statute,-it would seem that there should be greater weight and dignity attached to the legislative grant as proceeding more immediately from the source of title than the patent. No impeachment can be had of the motives of the legislature, whereas the motives of officers employed to supervise the alienation of public lands may sometimes be questioned, as in proceedings to set aside their action. Still, if the law be complied with, the title passes as completely in the one case as in the other. Montgomery v. Bevans, 1 Sawy. 677. Judgment affirmed. (112 U. S. 720) ST. PAUL & S. C. R. Co. and others v. WINONA & ST. P. R. Co.1 (January 5, 1885.) 1. RAILROAD LAND GRANTS-TITLE-CONFLICTING GRANTS. In grants of land to aid in building railroads, the title to the lands within the primary limits within which all the odd or even sections are granted relates, after the road is located according to law, to the date of the grant; and in cases where these limits, as between different roads, conflict or encroach on each other, priority of date of the act of congress, and not priority of location of the line of road, gives priority of title. 18. C. 2 N. W. Rep. 489. 2. SAME PRIORITY OF LOCATION. When the acts of congress in such cases are of the same date, or grants are made for different roads by the same statute, priority of location gives no priority of right; but where the limits of the primary grants, which are settled by the location, conflict, as by crossing or lapping, the parties building the roads under those grants take the sections within the conflicting limits of primary location in equal undivided moieties, without regard to priority of location of the line of the road, or priority of construction. 8. SAME SELECTION LIMITS. A different rule prevails in case of lands to be settled in lieu of those within the limits of primary location, which have been sold or pre-empted before the location is made, where the limits of selection interfere or overlap. 4. SAME TITLE, HOW DETERMINED. In such cases neither priority of grant, nor priority of location, nor priority of construction, give priority of right; but this is determined by priority of selection, where the selection is made according to law. In Error to the Supreme Court of the State of Minnesota. error. MILLER, J. *This is a writ of error to the supreme court of the state of Minnesota, and a motion is made to dismiss it for want of jurisdiction. It will sufficiently appear in the opinion on the merits that the rights asserted by both parties are founded on acts of congress, and require the construction of those acts to determine their conflicting claims. The motion to dismiss. therefore, cannot prevail. The source of this controversy is to be found in the act of congress of March 3, 1857, (11 St. 195,) making grants of land to the territory of Minnesota and the state of Alabama to aid in the construction of railroads. The first section of this statute the important one in the case is as follows: "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that there be, and is hereby, granted to the territory of Minnesota, for the purpose of aiding in the construction of railroads from Stillwater, by way of St. Paul and St. Anthony, to a point be. tween the foot of Big Stone Lake and the mouth of Sioux Wood river, with a branch via Saint Cloud and Crow Wing to the navigable waters of the Red River of the North at such point as the legislature of said territory may determine; from St. Paul and from St. Anthony via Minneapolis to a convenient point of junction west of the Mississippi, to the southern boundary of the territory, in the direction of the mouth of the Big Sioux river, with a branch via Faribault to the north line of the state of Iowa, west of range sixteen; from Winona via St. Peter to a point on the Big Sioux river south of the forty-fifth parallel of north latitude; also from La Crescent via Target Lake, up the valley of Root river, to a point of junction with the last-mentioned road, east of range seventeen,—every alternate section of land designated by odd numbers, for six sections in width on each side of each of said roads and branches; but in case it shall appear that the United States have, when the lines or routes of said roads and branches are definitely fixed, sold any sections, or any parts thereof, granted as aforesaid, or that the right of pre-emption has attached to the same, then it shall be lawful for any agent or agents to be appointed by the governor of said territory or future state to select, subject to the approval of the secretary of the interior, from the lands of the United States, nearest to the tiers of sections above specified, so much lands in alternate sections or parts of sections as shall be equal to such lands as the United States have sold or otherwise appropriated, or to which the rights of pre-emption have attached as aforesaid; which lands (thus selected in lieu of those sold, and to which pre-emption rights have attached as aforesaid, together with the sections and parts of sections designated by odd numbers as aforesaid and appropriated as aforesaid) shall be held by the territory or future state of Minnesota for the use and purpose aforesaid: provided, that the ⚫721 722 724 and to be so located shall, in no case, be further than fifteen miles from the lines of said roads or branches, and selected for and on account of each of said roads or branches: provided further, that the lands hereby granted for and on account of said roads and branches, severally, shall be exclusively applied in the construction of that road for and on account of which such lands are hereby granted, and shall be disposed of only as the work progresses, and the same shall be applied to no other purpose whatsoever: and provided further, that any and all lands heretofore reserved to the United States by any act of congress, or in any other manner by competent authority, for the purpose of aiding in any object of internal improvement, or for any other purpose whatsoever, be, and the same are hereby, reserved to the United States from the operation of this act, except so far as it may be found necessary to locate the routes of said railroads and branches through such reserved lands, in which case the rights of way only shall be granted, subject to the approval of the president of the United States." The territory of Minnesota accepted this grant and conferred the right to the lands which came to it by means of its*provisions on certain railroad corporations, which failed to perform their obligations to the state; by reason of which, and by the foreclosure of statutory mortgages, the state resumed control of the lands. It is unnecessary to pursue the various steps by which it was done, but it may be stated shortly that the right to build one of the roads mentioned in the act of congress, and to receive the land granted in aid of the enterprise, namely, from St. Paul and St. Anthony, by way of Minneapolis, to the southern boundary of the state, in the direction of the mouth of the Big Sioux river, became vested in the St. Paul & Sioux City Railroad Company, the plaintiff in error in this case. A similar right in regard to the road to be built from Winona via St. Peter to a point on the Big Sioux river, south of the forty-fifth parallel of latitude, and to the lands granted by the act in aid of it, became vested in the Winona & St. Peter Railroad Company, the defendant in error. These companies have complied with the terms of the grant by congress and by the Minnesota legislature, and completed the construction of the roads which they undertook to build. They have also, each of them, received large quantities of the land appropriated by the act of March, 1857, and by subsequent acts on the same subject, and, at one point where the lines of the two roads crossed, so that the grant of lands to each of the roads ran into the other's limits, the conflict has been settled by adopting the principle of an equal undivided interest in the lands so situated. The present controversy has relation to another part of the general course of these roads, where the lines of their location, not approaching each other so close that the limits of six miles within which the alternate six sections are to be first sought for interfere with each other, but so close that the fifteen miles limits, under the act of 1857, of selection for lands sold or preempted do overlap each other, as do also the limits of the extension of the grants under the acts of 1864 and 1865, to be hereafter considered. It is in regard to the lands to be selected under all these grants, and chiefly in regard to the claim of the St. Paul company, that, in search of its deficient lands in place, (using that phrase for lands within six miles of its road,) which had been disposed of before its location, it can, within its limit of fifteen miles under the original act, or its twenty miles under the subsequent acts, make those selections of odd-numbered sections within the six-mile limit of the Winona company, that the present controversy arises. The secretary of the interior, after a contest before the department between the parties to the present litigation, certified to the state of Minnesota, on May 14, 1874, a large quantity of lands, of odd-numbered sections, within the six-miles limit of the Winona road, as land properly selected by the St. Paul Company, to make up its deficiencies of lands within its own six-mile limits, and also to make up {ts deficiencies within the twenty-mile limits before referred to. A small part |