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his mother. In his application to enter the lands, made in 1878, he expressly bases his claim on her original settlement, and his inheritance from her. He does not pretend that he made a settlement himself before the rights of the railroad company accrued. In fact, he could not have made such a settlement, because he remained a minor until 1857, and the lands were withdrawn from market in 1853, on account of the railroad grant. Only persons over the age of 21 years could become pre-emption settlers. Such is the express provision of the pre-emption act. If, then, his mother, had she been alive, could not have made a pre-emption entry in 1878, he could not. The settlement and claim of Mrs. Nix were made under the act of September 4, 1841, c. 16, (5 St. 453,) and in that statute it was expressly provided (section 10) that “no person shall be entitled to more than one pre-emptive right by virtue of this act." When, therefore, Mrs. Nix, on the thirty-first of March, 1854, made her pre-emption entry of the N. E. ¢ of the quarter section on which she settled, and as to which she filed her declaratory statement in 1853, she, in law, abandoned her settlement on the other three-quarters of the quarter section for the purpose of pre-emption, and surrendered all the preemption rights she ever had in them. This is clearly shown by the provision in section 13, “that before any person claiming the benefit of this act shall be allowed to enter such lands," he shall make oath “that he has never had the benefit of any right of pre-emption under this act." The right of preemption is the right to enter lands at the minimum price in preference to any other person, if all the requirements of the law are complied with. The prior settlement, declaratory statement, and proof are not the pre-emption, but only the means of securing the right of pre-emption. By entering the 40 acres in 1854, Mrs. Nix exhausted the one right of that kind which the law secured to her, and she could not claim another. She could have entered the whole 160 acres at the time if she wished to, and had the money, but such an entry would have required $200, and she had but 50. The 50 would pay for 40 acres, and so she bought that and gave up the rest. The law made no provision for entering a part of the quarter section at one time and saving the right to enter the remainder at another. The averment in the bill, therefore, that the payment of the $50 at the time of the entry of the 40 acres was “intended as a part payment of the whole,” cannot be true. The law permitted nothing of the kind. The evident purpose of the act of March 27, 1854, was to aid pre-emptors. It gave the designated settlers the right of pre-emption; that is to say, a preferred right to buy the lands on which they had settled under the pre-emption laws at the ordinary minimum price. If a settler had opce had the benefit of those laws, this statute gave him no new rights. He could not be a pre-emptor, because he could not take the necessary oath. Consequently, when Mrs. Nix, on the thirty-first of March, four days after the act of March 27th was approved, made her pre-emption entry of the 40 acres, she exhausted all her rights under the act of 1854, as well as those under the act of 1841. It follows that the appellant has no right under the various acts of congress which are relied on.

2. The Arkansas act of 1855, giving settlers and occupants a preference right of purchasing the lands thereby granted to the railroad company at $2.50 an acre, was repealed by the act of November 26, 1856, before either the appellant or his mother attempted to avail themselves of its provisions. The act of 1856 required claimants to file with the auditor of state certain affidavits within three months after the lands were selected and confirmed to the company, and a list and plat thereof filed in the recorder's office of the county in which the lands were situate. The list and plat of these lands were filed in the proper recorder's office on the thirteenth of July, 1857. No aflidavits, such as the act required, were ever filed by the appellant or his mother in the office of the auditor of state, and, for this reason, in accordance with the express provisions of section 4, “the right to make such purchase” ceased as

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long ago as the year 1857. The act of 1859 did not inure to the benefit of the appellant or his mother for the same reason. The privileges of that act could only be secured “by complying with the conditions prescribed" in the act of 1856. This reduces the claims of the appellant to such as he has under the act of 1871. That act grants the privilege of a preference purchaser only. to a “settler who, on or before the eighth of March, 1870, was residing and made improvement on the lands*belonging to or claimed by the *

* rail. road company," which he desired to buy. This appellant, on the eighth of March, 1870, resided on the N. E. 4 of the quarter section. That land the company neither owned nor claimed. * It was entered and paid for by Mrs. Nix in 1854, and she deeded it to the appellant in 1858. His title to that part of the quarter section is not disputed, and his residence has always been there. He cultivated parts of the other quarters of the quarter on the eighth of March, 1870, but he did not reside upon them or either of them. Under the circumstances, his residence was, in law, confined to the land he owned. Seeing this difficulty, he applied for the purchase of the whole quarter section, basing his claim apparently on the original settlement and declaratory statement of his mother for the pre-emption of that tract. In this way he sought to connect his residence upon the N. E. 4 with his occupation of the other quarters. That he can not do, as by the entry of the N. E. 4 his mother separated her residence from the rest of the quarter section, and he has done nothing since to change that condition of things. It follows that the appellant is not entitled to the privileges of the act of 1871, and his claim, both under the acts of congress and those of state, has failed. This makes it unnecessary to consider whether the act of 1871 is constitutional. Good or bad, it is of no use to him. The same is true of the claim that the company has no title because at the time the grant was made the land in question was occupied by Mrs. Nix as a pre-emptor. The appellant can recover only on the strength of his own title. If he has no title, it is a matter of no importance how weak that of his adversary may be. Decree affirmed. (112 U. S. 83) WILSON, Adm'r, etc., 0. ARRICK, Adm'x, etc.

(October 27, 1884.) WASTE BY ADMINISTRATOR-Right or ADMINISTRATOR DE Bonis NON TO RECOVER.

The fact that an administratrix has improperly paid out money of the estate, the proceeds of assets administered by her, or that they have been paid to her agent, does not invest the administrator de bonis non with title and enable him to sue there for. In Error to the Supreme Court of the District of Columbia.

A. S. Worthington, for plaintiff in error, H. E. Davis, for defendant in error.

Woods, J. Horatio Ames, whose administrator de bonis non brings this suit, died in January, 1871. On some day not shown by the record, but prior to April, 1873, his widow, Charlotte L. Ames, was appointed administratrix, with the will annexed, of his estate. There was claimed to be due the estate, from the United States, a large sum of money for cannon furnished, which was satisfied by payments made in April, 1871, and in January, 1873. In May, 1873, Mrs. Ames filed her account, in which she chargel herself with the sum of $39,955 as received by her from the United States on account of the claim of the estate, and took credit for three payments, amounting to $33,574.36, made to Clifford Arrick, the intestate of the defendant, for which vouchers were filed, signed by him. Exceptions were filed to the account by Oliver Ames, a brother of Horatio Ames. Before the exceptions were heard. the court, on January 9, 1875, removed Mrs. Ames for having failed to com. ply with an order of the court requiring her to give an additional bond, and • appointed the present plaintiff, Nathaniel Wilson, adminis tor de bo

non

in her place. On January 22, 1876, the exceptions were heard, and the credit of $33,574.36, which the administratrix claimed on account of payments made to Arrick, was reduced by the court to the sum of $2,955.56, and the commission she claimed was also reduced. The account, as filed, showed a balance in her hands of $2,260.64; as corrected by the court this balance was increased to $34,876.75. Disregarding this settlement of the account, this suit was brought by Wilson, the administrator de bonis non, against Arrick, to recover the sum of $39,955, the whole amount with which the administratrix had charged herself in her account; the allegation of the declaration being that he had collected that sum for the estate of Horatio Ames, and refused to pay it over. Arrick having died pending this suit, it was revived against the administrator of his estate.

It appears from the bill of exceptions that warrants were issued by the set retary of the navy to the administratrix for the amounts due from the United States to the estate she represented; that on their delivery to her she was roquired to indorse upon them her receipt for the money, which she did; and. having the warrants in her possession, she indorsed and delivered them to Arrick, who drew the money. The court, at the request of the defendant, charged the jury that “the legal effect of the receipts, given in evidence and signed by Charlotte L. Ames, as administratrix, was to invest her with the control of the moneys mentioned in said receipts; and, if the administratrix parted with said control by the indorsement of said receipts, then the plaintiff is not entitled to recover.” And the court, of its own motion, added: "If you find, from the testimony in this case, that Mrs. Ames, administratrix of the estate of Horatio Ames, deceased, received this fund from the government for the purpose of adminstration, and that after receiving it she wasted it upon Arrick, or anybody else, the plaintiff in this case would not be entitled to recover; it would be the case of administration of assets, and it does not survive to the administrator de bonis non to prosecute.” This charge of the court is assigned for error. * We think the charge was right. In the case of U. 8. v. Walker, 109 U. S. 258, S. C. 3 Sup. Ct. Rep. 277, which, as appears by an inspection of the record, was a suit brought by the United States for the use of Nathaniel Wilson, as administrator de bonis non of the estate of Horatio Ames, upon the bond of Charlotte L. Ames, as adminstratrix of the same estate, to recover the identical money sued for in this case, it was held that an administrator de bonis non derives his title from the deceased, and not from the former administrator, and to him is committed only the admin. tration of goods, chattels, and credits of the deceased which have not been administered; and that, both at common law and under the act of congress in force in the District of Columbia, an administrator de bonis non has title only to the goods and personal property which remain in specie and have not been administered. Upon this ground the judgment of the court was based. The plaintiff in error, conceding that since the decision in U. 8. v. Walker, ubi supra, he could not maintain his action against the administratrix or the Bureties upon her bond to recover money, the proceeds of administered assets, still insists that the action will lie against an agent of the administratrix, to whom the money has been paid. This contention cannot be sustained. If the money sued for in this case is the proceeds of a debt due the estate of Horatio Ames, which has been administered by Mrs. Ames, the administratrix, the case of U.S. v. Walker must be decisive of this. For if the present plaintiff has no title to the money, his action will no more lie against the agent of the administratrix than against the administratrix herself.

We are of the opinion that the facts stated in the bill of exceptions, as already recited, show that the claims of the estate of Ames against the United States had been administered by Mrs. Ames, the administratrix. The demand of the estate against the United States had been settled and paid, and the liability of the United States discharged. This was an administration of

these assets of the estate. The mere acceptance even of the warrants was such an alteration of the property as vested the title in the administratrix, and was tantamount to their administration. Bac. Abr. tit. “Executors and Administrators,” B, 2, 2. The warrants and the money received on them became the property of the administratrix, and she was responsible therefor to the creditors, legatees, and distributees of the estate, and they only were entitled to sue therefor. U.S. V. Walker, ubi supra; Beall v. New Mexico, 16 Wall. 535; Ennis v. Smith, 14 How. 416. If the cases cited by counsel for appellant (Catherwood v. Chabaud, 1 Barn. & C. 150, and Blydenburg v. Lowry, 4 Cranch, C. C. 368) sustain his contention, they are inconsistent with the law as heretofore laid down by this court, and cannot avail him.

The fact that the administratrix has improperly paid out money of the estate, the proceeds of assets administered by her, or that they have been paid to her agent, does not invest the administrator de bonis non with title, and suthorize him to sue therefor. If, as held in the case of U.S. v. Walker, ubi supra, the administratrix was not herself liable for the proceeds of those assets to the administrator de bonis non, it follows that the person who has received them as her agent cannot be liable. We think there was no error in the charge. It further appears by the bill of exceptions that “the plaintiff offered to prove, by the deposition of Oliver Ames, taken in this case, transactions on the part of the intestate of the defendant with, and statements by, him to the said Oliver*Ames, tending to show that the said charges," on which the money sued for was paid to him by the administratrix, “ conscionable.” This evidence was excluded by the court, and its exclusion is now assigned for error. But it is clear that, if the plaintiff had no title to the money received by Arrick, the evidence offered was immaterial and was properly excluded. We find no error in the record. The judgment of the supreme court of the district of Columbia is therefore affirmed.

were un

(112 U. S. 123)
ADAMS Co. o. BURLINGTON & M. R. R. Co. and others.

(November 3, 1884.)
1. JURISDICTION OF SUPREME COURT-WRIT OF ERROR PROM STATE COURT.

To give the supreme court jurisdiction of a writ of error for the review of the judgment of a state court, it must appear affirmatively, not only that a federal question was raised and presented for decision to the highest court of the state having jurisdiction, but that it was decided, or that its decision was necessary to the

judgment that was rendered. 2. SAME-ESTOPPEL IN QUESTION OTHER THAN FEDERAL IN CHARACTER.

The question of estoppel, as urged against a county which has failed since 1861 to show acts of ownership of land in dispute, although the original title to the land

was derived by the county through grant by congress, is not a federal question. In Error to the Supreme Court of the State of Iowa.

F. M. Davis and Geo. G. Wright, for plaintiff in error. 8. Shellabarger, J. M. Wilson, and T. M. Stuart, for defendant in error.

WAITE, C. J. This is a suit in equity brought by Adams county, Iowa, the plaintiff in error, on the twenty-third of December, 1869, against the Burlington & Missouri River Railroad Company, in a state court of Iowa, to quiet its title to 66 40-acre lots of land. The county asserts title under the swamp-land act of September 28, 1850, (9 St. 519, c. 84,) and the railroad company under the Iowa land-grant act of May 15, 1856, (11 St. 9, c. 28.) The company, in its answer, denied the title of the county, on the ground that the lands were not swamp lands within the meaning of the swamp-land act, and took issue on every material averment of fact in the bill to support a title, under that act. It then set up its own title under the land-grant act. Thes petition averred a selection of the lands in dispute, as“swamp lands, by Wal

18. C. 2 N. W. Rep. 1054 and 7 N. W. Rep. 471.

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ter Trippett, county surveyor of the county, under the authority of the secretary of the interior and commissioner of the general land-office, as well as the governor and legislature of Iowa, and the report thereof, in due form, to the commissioner of the general land-office, on the thirtieth of September, 1854. On account of this selection and report, it was claimed that the right of the state to a patent for the lands selected was perfected by the act of March 3, 1857, c. 117, (11 St. 251.) The railroad company filed an answer in the nature of a cross-bill asking for affirmative relief on the following facts: "Petitioner further states that on the twenty-fifth day of October, 1861, the claim or right of said plaintiff to said lands under and by virtue of said pretended selection of said Trippett was submitted to the commissioner of the general land-office for final adjudication, and defendant appeared before said commissioner and resisted the claims of said plaintiff to said lands, and asserted its rights thereto as lands granted to the state of Iowa for railroad purposes, and said commissioner, after full and careful examination of plaintiff's claim, rejected the same as fraudulent and unfounded, and afterwards, on the twenty-fifth of October, 1862, said commissioner certified and conveyed said lands to the state of Iowa for railroad purposes, under and in pursuance of act of congress of date of May 15, 1856,

and that on the day of the said state certified and conveyed the same to defendant in pursuance of the said act of the legislature of the said state of date of 1856.

Defendant here avers the fact to be that the said plaintiff, well knowing that her claims to said lands were fraudulent and unfounded, did, upon the said decision of the said commissioner against her, voluntarily abandon all claim, right, or interest in said lands, and has, since the date of such decision, and up to the time of the commencement of this suit, recognized and treated defendant as the owner of said lands; that the said county of Adams, since the twenty-fifth day of October, 1861, has, by numerous and

repeated acts, not only abandoned all claims to said lands, but has recognized, treated, and acknowledged the same to belong to defendant; that since the

date of said decision said county has regularly each year (up to and including the year 1871) listed and assessed said lands as the land of the defendant, and bas, since the date aforesaid, regularly levied and collected taxes thereon from defendant. That the taxes thus levied and collected on said lands from defendant since the twenty-fifth day of October, 1861, would, with the legal interest thereon, amount to about ten thousand dollars. That prior to the twenty-fifth of October, 1861, the county had assumed to contract portions of said land to certain individuals under the pre-emption laws, and some of said pre-emptors had taken possession of said land, and made valuable improveinents thereon, but that plaintiff, after that date, ceased to take any further notice or control of said land, or attempt in any manner to fulfill their said agreement with said pre-emptors; and, relying upon their title to said lands, and having every reason to believe, froin the acts and conduct of the plaintiff, that she had acquiesced in the decision of said commissioner, and abandoned all claim to said lands, defendant contracted with said preemptors, and with the knowledge of the plaintiff, and without any objections being made by said plaintiff, defendant sold and conveyed by warranty deed parcels of said land aforesaid, and defendant afterwards, and before the commencement of this suit, sold and conveyed by warranty deed these portions of said land to different persons, many of whom are now, and for the last six years have been, in the actual possession of the same, and have made valuuble improvements thereon. That on the seventeenth day of June, 1869, the said plaintiff, for the purpose of inducing defendant to bring said lands into market, made and entered into a written contract, whereby she expressly recognized defendant's ownership of said lands, and agreed, in consideration of defendant's bringing said lands into market, and selling the same to settlers, to remit a portion of the taxes that she had levied thereon, and defend

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