*148

from liability, and his bond canceled. Subsequently, Horbach purchased, at advanced prices, portions of the property thus sold, among others 15 of the 17 lots.

In December, 1877, Edward B. Hill, the complainant in this suit, recovered in the district court of Nebraska a judgment by default against John A. Parker, Sr., for $3,244 and costs, purporting to be owing upon the promissory note described in the petition of the plaintiff. This petition is not in the record, and therefore it does not appear whether Parker was liable as maker or as indorser, or when the note was made, or when it matured. There was no personal service of process upon him, nor did he enter his appearance in the case; the service was by publication. The judgment, reciting that it appearing to the court that the attachment proceedings therein were regular and in conformity to law, ordered the sheriff to sell the real estate attached. What that real estate was does not appear, and that it included the 17 lots can only be inferred from the fact that under the judgment and order they were sold with other real property and conveyed to the complainant. In August, 1878, this suit was brought by him, claiming title to the premises thus purchased, and alleging that the conveyance to Horbach by John A. Parker, Sr., in March, 1871, was made to hinder, delay, and defraud the latter's creditors; that the administration was taken under an agreement to manage and manipulate the estate for his benefit; and that the sales by the administrator were without consideration and fictitious, being in fact made for himself. It therefore prayed that the conveyance by Parker, Sr., to Horbach be adjudged void, and that the complainant be decreed to be the owner in fee of the property. The averments were traversed by the answer, which also set up the agreement to

reconvey the 17 lots. A replication being filed, testimony was taken. The case was then referred to a master "to report on the law and facts as shown by the pleadings and proofs." He held and reported that, except as to the 17 lots, the purchases at the administrator's sale were valid; that as to them the complainant acquired title under his attachment proceedings; that the deceased, as to them, was mortgagee; that the deed of Parker, Sr., to Horbach was made when he was largely in debt to the complainant and others, and for the purpose of hindering, delaying, and defrauding his creditors, and that Horbach knew this; that the purchase of those lots by Kennedy at the administrator's sale was in good faith, but with notice that the title of the deceased was that of mortgagee only, and that hence no title was acquired; and that no title passed through Kennedy to Horbach because of like notice, and therefore the complainant was entitled to a decree to quiet his title. Exceptions were taken to the report, but they were overruled, and it was confirmed and a decree entered adjudging that the 17 lots were, at the commencement of the suit, the property of the complainant, and directing the defendant to convey the same to him, and, in default thereof, that the decree should stand in lieu of such conveyance, and that the defendant should be barred of all interest in the property, and deliver possession thereof to the complainant. From this decree this appeal is brought.

W. D. Davidge, for appellant. No counsel for appellee.

*FIELD, J. There are several fatal objections to the decree in this case. In the first place, there is no evidence affecting the good faith of the sale and conveyance from Parker, Sr., to the defendant, in March, 1871. It was known that the deceased owed several debts, and as there were no personal effects, that the real property was liable to be sold for their payment. Under these circumstances, the price paid by the defendant is not shown to be inadequate. And there is no evidence that he had any knowledge of the debt of Parker, Sr., to the complainant. So, whatever may be suggested or surmised as to possible fraudulent intentions of Parker, Sr., in the conveyance, its validity cannot be questioned in the absence of any evidence of participation in them by the defendant. The fraud which will vitiate a sale must be

mutual; that is, must be intended by both parties, or by one with knowledge of the other's purpose, and thus acquiesced in and furthered. Here all such participation was wanting on the part of the purchaser.

In the second place, if the conveyance by the father to the defendant be treated as invalid, the title to the lots passed by the administrator's sale, and the subsequent deed in pursuance of it. The master found that the purchase by Kennedy at that sale was in good faith, but was void because of his knowledge that the property was held by the deceased as mortgagee, and that the defendant acquired no title from Kennedy because of like notice. But the conclusion that the conveyance by the father to the son was a mortgage was a mere assumption, not warranted by the accompanying agreement. There was no obligation resting on the father to make the payments mentioned in that agreement and claim a reconveyance. He had an option to do so, and then he was not merely to repay the consideration given by the son, but in addition thereto he was to obtain a release of two bonds by him exceeding $3,000 in amount. Upon such release the vendee agreed to reconvey the lots for the original consideration and the expenses incurred on them. There were no extraneous facts shown to explain the object of executing the papers, such as a previous indebtedness of the father, or a liability on his partto secure the son against the bonds mentioned. Nor did it appear to whom the bonds were issued, nor for what consideration. Nor was it averred that the transaction was in any respect different from what the instruments imported-a sale to the son. The agreement can therefore be considered only as an independent contract to reconvey the lots on certain conditions. The assumption that the conveyance of the father to the son was a mortgage being unfounded, the objection to the purchase by Kennedy falls. That being valid, the deed received by him passed a good title, which he transferred to the defendant.

In the third place, there is no evidence that the complainant was a creditor of Parker, Sr., in March, 1871, when the conveyance was made to the defendant. The attachment suit was commenced by publication in August, 1877, and in December following judgment by default was rendered. This was more than six years after the conveyance. It does not appear when the alleged debt, upon which the attachment proceedings were founded, accrued. The allegation of the bill that Parker, Sr., was largely indebted to the complainant and others, and was insolvent when he conveyed to the defendant, is not sustained by the evidence. Indeed, there is no evidence in relation to his financial condition and means at that time. The testimony that he brought a summons in another suit against him to the office of the party who was then drawing the deed is contradicted; and, even had this been so, the fact would not militate against the validity of the transaction. He had a right to dispose of his property in the ordinary course of business for a valuable consideration, and the defendant had a right to purchase it. The complainant, not showing that he was at the time a creditor, cannot complain. Even a voluntary conveyance is good as against subsequent creditors, unless executed as a cover for future schemes of fraud.

So, in any way in which this case can be considered, the bill cannot be sustained. The decree must therefore be reversed, and the case remanded, with directions to dismiss the bill; and it is so ordered.

*166

(112 U. S. 165)

COUNTY OF Buena Vista, in the State of Iowa, v. Iowa FALLS & S. C.

R. Co.1

(November 10, 1884.)

1. IOWA SWAMP LAND-EVIDENCE REQUIRED TO SUSTAIN TITLE UNDER THE GRANT BY CONGRESS.

In order to recover in an action for swamp and overflowed lands alleged to be vested in plaintiff by operation of act of congress of September 28, 1850, (9 St. 519,) it is necessary to show that the agent to make the lists was appointed by the county court at a regular term thereof, and the proper evidence is the record of the court. If the record has been lost, then the written appointment of the agent is the proper evidence; and, in the absence of this, the testimony of witnesses subjected to crossexamination, and not the ex parte affidavit of the person making the appointment. 2. SAME-FORCE OF THE LISTS AS EVIDENCE-PROPER DISPOSITION OF THEM.

The lists of "swamp and overflowed lands" granted to the state of Iowa by act of congress, September 28, 1850, are evidence of no fact, but are authorized to be made merely to procure proper recognition of the same by the United States, and are in the nature of a claim or demand. They should have been transmitted by the county court to the surveyor general for his approval.

3. SAME-FORMS OF PROOF-Surveyor GENERAL.

The fact that the surveyor general submitted forms of proof of the lands is no evidence of title, unless the proofs made were transmitted to his office for his approval, and to enable him to make up a list of the lands embraced in the grant.

4. LAND-OFFICE-COMMISSIONER-SECRETARY OF THE INTERIOR-ACT OF MARCH 5, 1872.

There is nothing in the act of congress of March 5, 1872, to alter the relation between the land commissioner and the secretary of the interior as otherwise established, or to put the decisions of the commissioner under that act upon a footing different from his other decisions.

5. SAME-CONTEST OF JURISDICTION DOES NOT WORK WAIVER OF OTHER OBJECTIONS. The fact of a party's having contested the jurisdiction of the land-office, and having prevailed on that point, does not show him to have waived other objections he was not called on to make.

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

Galusha Parsons, for plaintiff in error. E. 8. Bailey, for defendant in

error.

MATTHEWS, J. The plaintiff in error was the plaintiff below, and commenced this suit in equity in the district court of Buena Vista county, in the state of Iowa, for the purpose of establishing its equitable title in fee-simple to 553 40-acre tracts of land, lying within its limits, and seeking a conveyance of the legal title thereto, held by the defendant. It was claimed that the lands in question were granted by the swamp-land act of September 28, 1850, (9 St. 519,) to the state of Iowa; all such lands having been granted by the state by an act passed January 13, 1853, to the counties, respectively, in which the same were situated. The bill of complaint further alleges as follows:

"(5) That each and every parcel of said lands was of the description specified in said act of congress at the date of the passage thereof; that afterwards, to-wit, in the year eighteen hundred and fifty-nine, the plaintiff caused a list of said lands to be made in legal subdivisions in all respects in accordance with the requirements of the said act of congress and the rules and reg⚫ ulations of the general land-office of the United States; that the said list, with the proper proof thereunto attached, was duly filed in the office of the secretary of the state of lowa on or about the first day of January, 1860, and was thereafter duly recorded in the office of the register of the state land-office, and thereafter filed in the office of the surveyor-general of the United States for the state of Iowa, and thereafter, to-wit, in the month of January, 1866, the same was duly filed in the office of the commissioner of the general landoffice of the United States, where it has ever since remained on file.

"(6) That from time to time, since the filing of said list in said last-men

18. C. 7 N. W. Rep. 474.

tioned office, the plaintiff has applied to the said commissioner of the general land-office to examine and pass upon the sufficiency thereof, and to allow the same; that prior to the seventh day of July, 1875, it was wholly unable to 'obtain any hearing or decision thereon; that the defendant, by its agents and attorneys, appeared before said commissioner and resisted said application, and the said refusal to take up and examine said list was wholly by reason of defendant's resistance thereto and its claim to said lands; that upon the day last aforesaid the said commissioner decided to allow plaintiff's said list; that defendant appealed from said decision to the secretary of the interior, who, upon the thirtieth day of August, 1876, reversed the decision of said commissioner, and directed him to take no further proceedings upon plaintiff's application for the examination and allowance of said list.

"(7) Plaintiff further says that upon the fifth day of July, 1871, the governor of the state of Iowa, without being in any way authorized so to do, issued to the defendant a patent for a part of said lands, which said patent is now of record in the office of the register of the land-office of the said state, at page two hundred and fifty-two of record 'A, Miscellaneous Conveyances;' that on the tenth day of August, of said year, he issued a patent to said defendant for all the remaining lands aforesaid, which is recorded in the book aforesaid, at page two hundred and eighty-three; that both of said patents are recorded in the office of the recorder of deeds for said county of Buena Vista; that said patents are a cloud upon the title of the plaintiff, and wholly prevent it from making sale of its said lands, and greatly impair the value of its property therein."

The defendant claimed title to the lands in dispute in itself, and denied the plaintiff's equitable title, and the material facts upon which it was based.

The defendant's title was derived through a grant made by an act of congress, passed May 15, 1856, to the state of Iowa, to aid in the construction of certain railroads, which was accepted by the state and by it granted to a company whose line was located through Buena Vista county, whereby the limits of the grant were determined so as to embrace the lands described in the plaintiff's petition. Thereafter, on February 28, 1858, the same were certified by the secretary of the interior to the state as inuring to it under said grant, and were accepted by it and passed by subsequent legislative grants from 'state to the defendant in error, to whom patents for the land were issued in the name of the state by the governor. It is not denied, however, that, if the lands in controversy passed by the swamp-land grant of 1850, they were excepted out of the subsequent railroad grant, which is the foundation of the defendant's title.

The terms of the act of congress of September 28, 1850, granted to the several states within which they were situated "the whole of those swamp and overflowed lands, made thereby unfit for cultivation, which shall remain unsold at the passage of this act." It was thereby made the duty of the secretary of the interior, as soon as practicable after the passage of the act, to make out an accurate list and plats of the lands described as aforesaid, and transmit the same to the governor of the state, and at his request to issue a patent to the state therefor; but "in making out a list and plat of the land aforesaid all legal subdivisions, the greater part of which is wet and unfit for cultivation, shall be included in said list and plats; but when the greater part of a subdivision is not of that character, the whole of it shall be excluded therefrom." The legal subdivisions contemplated by the law were 40-acre tracts.

The first instructions issued by the commissioner of the general land-office, on November 21, 1850, in execution of this act, directed the surveyors general to make out lists of the lands in each state falling within the description of the grant, based upon the notes of surveys in their offices, provided the authorities of the states were willing to adopt them; "if not, and those au

169

170

thorities furnish you satisfactory evidence that any lands are of the character embraced by the grant, you will so report them." Provision was made for surveys to be made to determine the boundaries of the swamp or overflowed lands, where the state authorities concluded to have them made, and it was added, that "the affidavits of the county surveyor, and other respectable persons, that they understand and have examined the lines, and that the lands bounded by lines thus examined, and particularly designated in the affidavit, are of the character embraced by the law, should be sufficient. The line or boundary of the overflow that renders the land unfit for regular cultivation may be adopted as that which regulates the grant." The lists were to be made out on forms prescribed for that purpose, and transmitted to the department, the lands selected reserved from sale, and the selections, when approved by the secretary of the interior, were directed to be entered by the register as granted to the state.

The state of Iowa adopted the alternative of making its own designations of lands claimed by it as corresponding to the description of the grant, and passed, at different times, laws directing by whom they should be made. A statute of 1853 required a full and complete return of the examination and survey of the swamp and overflowed lands, when completed by the county surveyor, or other person appointed for that purpose, to be forwarded to the secretary of state, whose duty it was to report the same to the surveyor general. A subsequent statute, passed January 25, 1855, authorized the governor to adopt such measures as to him might seem expedient to provide for the selection of the swamp lands of the state, and to secure the title thereto. The governor accordingly issued circulars, one in 1855 and one in 1858, to the county judge of the several counties, requesting the selection to be made in his county by the county surveyor or other agent, the lists thereof to be forwarded to the surveyor general, or to the secretary of state of Iowa, to be by him forwarded to the proper department for recognition and approval. The act of January 13, 1853, was carried into the Revised Statutes of the state of 1860, as follows: "Sec. 927. In all those counties where the county surveyor has made no examinations and reports of the swamp lands within his county, in compliance with the instructions from the governor, the county court shall, at the next regular term thereof, after the taking effect of this act, appoint some competent person, who shall, as soon as may be thereafter, after having been duly sworn for that purpose, proceed to examine said lands and make due report and plats, upon which the topography of the country shall be carefully noted, and the places where drains or levees ought to be made marked on said plats, to the county courts, respectively, which courts shall transmit to the proper officers lists of all said swamp lands in each of the counties, in order to procure the proper recognition of the same on the part of the United States, which lists, after an acknowledgment of the same by the general government, shall be recorded in a well-bound book provided for that purpose, and filed among the records of the county court."

On the trial of the cause, in the district court of Buena Vista county, the plaintiff offered in evidence a paper claimed to be a certified copy of plaintiff's list of swamp-land selections and accompanying proofs. It was headed, "A list of the swamp and overflowed lands situated in the county of Buena Vista and state of Iowa." Then followed a list containing a description, among others, of all the lands described in the plaintiff's original petition or complaint. To this were annexed affidavits by George S. Ringland, W. H. Hait, and Zachariah Tucker, stating that, having been appointed by the county judge of Buena Vista county to select the swamp and overflowed lands in said county, "do solemnly swear that we understand and have examined the lines bounding each of the tracts of land particularly designated in the foregoing list, and we do further solemnly swear that the greater part of each and every forty-acre tract or smallest legal subdivision therein named is swamp