(114 U. S. 47)

BOHALL . DILLA.

(March 23, 1885.)

1. PLEADING-CALIFORNIA-POSSESSION OF LANDS-EQUITABLE DEFENSE.

The system of pleading in civil cases in the courts of California permits an equitable defense to be set up in a special court, by way of cross-complaint, in the answer to an action for the possession of lands.

2. PUBLIC LAND-CHARGING Legal Holder of Patent Grant as TrustTEE-CASE NEOESSARY TO BE PRESENTed.

To charge the holder of the legal title to land, under a patent of the United States, as a trustee of another, and to compel him to transfer the title, the claimant must present such a case as will show that he himself was entitled to the patent from the government, and that in consequence of erroneous rulings of the officers of the land department upon the law applicable to the facts found, it was refused to him. It is not sufficient to show that there may have been error in adjudging the title to the patentee.

In Error to the Supreme Court of the State of California.

*This case comes before us from the supreme court of California. The plaintiff in the court below, the defendant in error here, is the holder of a patent of the United States for certain lands situated in Humboldt county, in that state, issued to him under the pre-emption laws upon proof of settlement and improvement, and the present action is to recover their possession. In his complaint he alleges his ownership in fee of the premises on a day designated, the entry thereon of the defendant without license, and the subsequent withholding of them; also, that the value of the annual rents and profits of the premises is $800, for which sum and the restitution of the premises he prays judgment. The answer of the defendant denies the several allegations of the complaint, and sets up in a special count, by way of cross-complaint, various matters, which, as he insists, constitute in equity a good defense to the action and entitle him to a decree; that he has an equitable right to the premises; that the plaintiff holds the title in trust for him; and that the plaintiff should be required to convey the same to him.

The matters set up as grounds for equitable relief are the previous settlement upon the premises and their improvement by the defendant, and certain proceedings taken by him to acquire the title under the pre-emption laws, which were disregarded and held insufficient by the land department of the government, but which he contends establish his right to the patents.

It appears from the record and findings of the court that in October, 1862, the defendant purchased from his brother William, then in occupation of the land, the possessory right of the latter to the premises and his improvements thereon, received a deed from him, and immediately thereafter went into possession, which was held until March 23, 1865; that on that date, in consideration of $600 partly paid in cash, and partly payable in installments, the defendant contracted to convey the premises and improvements to the plaintiff Dilla, who thereupon was put into possession and continued in possession until the fifth of May, 1868; that he was then evicted under a judgment obtained by the defendant upon the contract of purchase, and the latter was restored to the possession. In July, 1869, the defendant removed to Arcata, about 20 miles distant, and remained there until October, 1871, when his family went back to the land, followed by himself in December. In April, 1872, he moved to Mattole, about 80 miles distant, and there remained until August, 1874, when he again returned. In October following he again moved to Arcata and did not return until March, 1875.

The land was surveyed in 1873, and the plat thereof filed in the land-office in October of that year, On the third of that month the defendant Bohall filed his declaratory statement, alleging settlement on October 22, 1862, and

claiming the land. On the twenty-sixth of December following, the plaintiff Dilla filed his declaratory statement, alleging settlement under the pre-emption laws on the twenty-fifth of March, 1865, and claiming the land. A contest thus arose in the local land-office between these parties as to which was entitled to the land under the pre-emption laws. The register and receiver of the land-office differed in their judgment, the receiver holding that the land should be awarded to Dilla, and the register that it should go to Bohall. The contest was thereupon transferred to the general land-office at Washington, and the commissioner sustained the claim of Dilla, holding that, from the time of his settlement in 1865, until ejected in 1868, he had fully complied with the law; that his absence since then was compulsory, as he was unable to make a residence on the land without being in contempt of the court, under whose judgment he was evicted; that his non-residence was for that reason excusable, and should not be allowed to work against him. But as to Bohall, the commissioner held that his residence on the land had not been continuous since his settlement, but had been interrupted by residence elsewhere for several periods; and that the occupation of tenants during such periods did not satisfy the provisions of the pre-emption laws, which required the continuous personal residence of the pre-emptor; and therefore his claim was rejected. The decision of the commissioner was affirmed on appeal by the acting secretary of the interior. It is upon this ruling, charged to be erroneous, that the defendant relies to maintain his claim for equitable relief. The local state court upon these facts, and others not material to the case, adjudged that the defendant was entitled to the decree prayed; but the supreme court of the state held otherwise, and reversed the judgment; and, as there was no finding as to the value of the rents and profits of the premises, ordered a new trial if the plaintiff so elected. Upon the filing of the remittitur in the lower court, the plaintiff waived his privilege of a new trial, and the court thereupon, on the pleadings and previous findings, gave judgment for the plaintiff, which was affirmed by the supreme court of the state; and this judgment is brought here for review.

W. W. Cope, for plaintiff in error. Walter Van Dyke, for defendant in

error.

FIELD, J. The system of pleading in civil cases in the courts of California permits an equitable defense to be set up in a special count, by way of crosscomplaint, in the answer to an action for the possession of lands. The crosscomplaint is in the nature of a bill in equity, and must contain its material allegations, disclosing a case which, if established, would entitle the defendant to a decree enjoining the further prosecution of the action, or directing that the title be conveyed to him. This equitable defense is, therefore, to be first considered, for, according to its disposition, will the necessity exist for further proceedings in the action at law, in which the legal title of the parties will alone control. Quinby v. Conlan, 104 U. S. 420; Estrada v. Murphy, 19 Cal. 248, 273; Arguello v. Edinger, 10 Cal. 150.

We do not think the claim of the defendant to the equitable relief he seeks can be sustained on the grounds stated in his answer or cross-complaint. To charge the holder of the legal title to land under a patent of the United States, as a trustee of another, and to compel him to transfer the title, the claimant; t must present such a case as will show that he himself was entitled to the patent from the government, and that in consequence of erroneous rulings of the officers of the land department upon the law applicable to the facts found, it was refused to him. It is not sufficient to show that there may have been error in adjudging the title to the patentee. It must appear that by the law properly administered the title should have been awarded to the claimant. Smelting Co. v. Kemp, 104 U. S. 636, 647; Boggs v. Merced Min. Co. 14 Cal. 279, 363. It is therefore immaterial, for the decision of this case, what our judgment may be upon the conclusions of those officers as to the possession

of the patentee. It is plain that the defendant, Bohall, did not bring himself within the provisions of the pre-emption laws. Those laws are intended for the benefit of persons making a settlement upon the public lands, followed by residence and improvement, and the erection of a dwelling thereon. This implies a residence both continuous and personal. No such continuous residence was shown on the part of Bohall. He was placed in possession of the premises under the judgment of the state court in May, 1868; and it was necessary to prove that he occupied them continuously after filing his declaratory statement. It was shown, however, that he resided elsewhere from July, 1869, to December, 1871, and from April, 1872, to August, 1874. Though he claimed the land for six years, he and his family resided elsewhere during four of them, and no sufficient excuse for such residence was offered. It is only under special circumstances that residence away from the land is permissible. The settler may be excused for temporary absences caused by wellfounded apprehensions of violence, by sickness, by the presence of an epidemic, by judicial compulsion, or by engagement in the military or naval service. Except in such and like cases the requirement of a continuous residence on the part of the settler is imperative.

The alleged fraud of Dilla in obtaining possession under the alleged contract, if any such fraud existed, could have had no effect upon the defendant's residence after his restoration to the land in May, 1868. As he could not maintain his equitable defense, the plaintiff was entitled to judgment upon his legal title as shown by his patent. Judgment affirmed.

(114 U. S. 120)

HAYES v. MAYOR AND ALDERMEN OF THE CITY OF HOLLY SPRINGS.

(March 30, 1885.)

MUNICIPAL BONDS-CONSTITUTION OF MISSISSIPPI-ISSUE OF BONDS BY CITY TO AID RAILROAD-ULTRA VIRES-ACT OF LEGISLATURE.

The constitution of Mississippi, adopted December 1, 1869, provided as follows, (article 12, 14) The legislature shall not authorize any county, city, or town to become a stockholder in, or to lend its credit to, any company, association, or corporation, unless two-thirds of the qualified voters of such county, city, or town, at a special election, or regular election, to be held therein, shall assent thereto." A city in that state subscribed for stock in a railroad corporation, after what was called a "special election" was held, but neither the election nor the subscription was authorized by any act of the legislature. Afterwards the legislature passed an act providing "that all subscriptions to the capital stock of the" corporation, "made by any county, city, or town in this state, which were not made in violation of the constitution of this state, are hereby legalized, ratified, and confirmed." Thereafter the city issued bonds to pay for its subscription. In a suit against the city, by a bona fide holder of coupons cut from the bonds, to recover their amount, held, (1) the intention of the legislature to confirm and ratify the subscription could not be ascertained with certainty from the language of the act; (2) the bonds were void for want of power to issue them, notwithstanding any recitals on their face, or any acts in pais, claimed to operate by way of estoppel.

In Error to the District Court of the United States for the Northern District of Mississippi.

•

W. S. Featherston and Ed. M. Watson,

H. T. Ellett, for plaintiff in error. for defendants in error.

BLATCHFORD, J. This is a suit at law brought by J. Addison Hayes, in the district court of the United States for the Northern district of Mississippi, against the mayor and aldermen of the city of Holly Springs, to recover the sum of $8,560, as due on 568 coupons, cut from 43 bonds, for the payment of $16,250, purporting to be issued by the city of Holly Springs, in the state of Mississippi, the bonds and coupons being owned by the plaintiff. Each bond is in the following form:

"State of Mississippi, City of Holly Springs. Bond. of stock of the Selma, Marion & Memphis Railroad Co. Fifteen years.

"Know all men by these presents that the city of Holly Springs, Marshall county, in the state of Mississippi, acknowledges itself indebted and firmly bound to the Selma, Marion & Memphis Railroad Company, in the sum of dollars, which sum the city of Holly Springs promises to pay to the Selma, Marion & Memphis Railroad Company, or bearer, at the Holly Springs Savings & Insurance Company, Holly Springs, Mississippi, on the first day of January, A. D. one thousand eight hundred and eighty-seven, together with the interest thereon from the first day of January, A. D. one thousand eight hundred and seventy-two, at the rate of eight per cent. per annum, which interest shall be payable semi-annually, on the presentation and delivery of, the attached interest coupons, at the office of the said Holly Springs Savings & Insurance Company. This bond is issued under and in pursuance to an order of the board of mayor and aldermen of the city of Holly Springs, Marshall county, state of Mississippi, made under authority of the constitution of the state of Mississippi and the laws of the legislature of the state of Mississippi, and authorized by a vote of the people of the said city of Holly Springs at a special election held for the purpose.

[Corporate seal.] "In testimony whereof, the said city of Holly Springs has executed this bond by the mayor of said city, under the order of said city's board of mayor and aldermen, signing his name thereto, and by the treasurer

V.58-50

of said city, under the order thereof, attesting the same, and affixing thereto the said seal of the said city of Holly Springs.

"This done at the city of Holly Springs, Marshall county, state of Missis sippi, this first day of January, A. D. 1872.

"HENRY A. COOPER, Mayor of the City of Holly Springs. "LEWIS BEEHLER, Treasurer of the City of Holly Springs."

The questions in the case arise on a demurrer to the declaration, the facts alleged in which are as follows:

The defendant is a municipal corporation created by the legislature of the state of Mississippi. By the constitution of Mississippi, adopted December 1, 1869, and still in force, it is provided as follows, by article 12, § 14: "The legislature shall not authorize any county, city, or town to become a stockholder in, or to lend its credit to, any company, association, or corporation, unless two-thirds of the qualified voters of such county, city, or town, at a special election, or regular election, to be held therein, shall assent thereto." In the fall of 1871 the inhabitants of the city of Holly Springs were desirous that the city should subscribe for stock in the Selma, Marion & Memphis Railroad Company, whose road was to be constructed through or near the city. The mayor and aldermen, in conformity to the wishes of the inhabitants, on the day of, 1871, ordered a special election to be held, in pursuance of the constitution, on the thirtieth day of December, 1871, to ascertain whether two-thirds of the qualified voters of the city would assent to a subscription by it to $75,000 of the capital stock of said company, and to issue the bonds of the city in payment of the subscription, "having to run" to the first of January, 1887, and bearing interest at 8 per cent. per annum, payable semi-annually. Due notice was given of the election, and it was held on the thirtieth of December, 1871, under the direction and supervision of the mayor and aldermen; and, at the election, largely more than two-thirds of all the qualified voters of the city voted in favor of the subscription and the issuing of the bonds, and assented thereto, and thereby authorized and directed the mayor and aldermen to make the subscription, and to issue and deliver the bonds. After the election, to-wit, on the first of January, 1872, the defendant, in pursuance of the vote, subscribed for $75,000 of the capital stock of the company, and agreed and undertook to issue its bonds in payment thereof as soon as the same could be prepared, and received the regular and proper certificates therefor, which it still holds and has never surrendered, or offered to surrender. By an act of the legislature of Mississippi, approved March 16, 1872, (Laws 1872, c. 75, p. 313,) entitled "An act to facilitate the construction of the Selma, Marion & Memphis Railroad," it was provided (section 4) "that all subscriptions to the capital stock of the said Selma, Marion & Memphis Railroad Company, made by any county, city, or town in this state, which were not made in violation of the constitution of this state, are hereby legalized, ratified, and confirmed." By another act of that legislature, approved April 19, 1872, (Laws 1872, c. 102, p. 120,) it was provided (section 1) “that any county through which any railroad will pass, incorporated city or town along the line of any railroad, or contiguous thereto, may subscribe to the capital stock of said company in any sum;" and (section 2) "that no such subscription shall be made until the question has been submitted to the legal voters of such county or counties, city or cities, incorporated town or towns, in which the subscription is proposed to be made;" and (section 3) that if it shall appear that two-thirds of the legal voters of such county, city, or town have voted for subscription, the subscription shall be made, and bonds not having more than 20 years to run to maturity be issued to the company therefor. On the twenty-sixth of April, 1872, the defendant, in payment of the subscription, executed and delivered to the company its coupon bonds, under its corporate seal, to the amount of $75,000, bearing date January 1, 1872, and