Opinion of the Court. title passed to the patentee on its confirmation; second, the want of any allegation in the complaint, or any evidence in the proofs, that the plaintiffs were in possession of the premises when this suit was commenced. In support of the first position the appellants cite United States v. Workman, 1 Wall. 745. In that case it was held that the Departmental Assembly of California had no power to authorize the governor to alienate any public lands of the department, and that its own power was restricted to that conferred by the laws of colonization, which was simply to approve or disapprove of the grants made by the governor under those laws. But it does not follow that there were not exceptional circumstances with reference to the sale to Poli, which authorized the governor to make it. We are bound to suppose that such was the case, in the absence of any evidence to the contrary, from the fact that the validity of his claim under it was confirmed by the Board of Land Commissioners, by the District Court of the United States, and by this court on appeal. The question of its validity was thereby forever closed, except as against those who might be able to show a prior and better title to the premises. The defendants show no title whatever; but, on the contrary, the grant under which they assert title has been, by the adjudication of the Board of Land Commissioners and by the survey and patent, confined to other land. Second, as to the want of any allegation in the complaint of possession by the plaintiffs, or any evidence of that fact in the proofs, it is sufficient to say that, by $ 738 of the Code of Civil Procedure of California, a plaintiff asserting title to lands, though out of possession, may maintain an action to determine an adverse claim, estate, or interest in the premises. People v. Center, 66 California, 551. A statute of Nebraska, authorizing a similar suit by a plaintiff out of possession, was before this court for consideration in Holland v. Challen, 110 U. S. 15, and the jurisdiction of a court of equity to grant the relief prayed in such case was sustained. See, also, Reynolds v. Crawfordsville Bank, 112 U. S. 405, 411; Chapman v. Brewer, 114 U. S. 158, 170, 171; United States v. Wilson, Statement of the Case. 118 U. S. 86, 89; Frost v. Spitley, 121 U. S. 552, 557. We see no error in the decree of the court below, and it is accordingly RUCKER v WHEELER. Affirmed. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE No. 1306. Submitted January 9, 1888. - Decided April 16, 1888. In the courts of the United States the presiding judge may, in submitting a case to the jury, express his opinion on the facts; and when no rule of law is incorrectly stated, and all matters of fact are ultimately submitted to the jury, such expression is not reviewable on writ of error. In this case there was no error in the charge of the court to the jury. THE case as stated by the court was as follows: The cause of action set out in the first count of the complaint is, that the defendant in error, who was the defendant below, agreed with the plaintiff in error that if the latter assisted the former and his agents, in purchasing the interest of Julia Webber in the Emma lode mining claim at a price not exceeding forty thousand dollars, he should receive for his services the sum of ten thousand dollars, but only five thousand dollars if the defendant was compelled to pay more than forty thousand dollars for said interest. The complaint alleges that, in consequence of services rendered by the plaintiff under that agreement, the defendant was, on the 22d of November, 1884, enabled to buy said interest at a sum exceeding forty thousand dollars, whereby the latter became indebted to plaintiff in the sum of five thousand dollars. The defendant in his answer denies that he made any such agreement as that alleged, or that he was enabled to purchase the interest of Julia Webber, by reason of any services rendered by the plaintiff. The second count of the complaint sets forth the following cause of action: Statement of the Case. On the 29th of November, 1882, one Henry Webber was the owner of an undivided of the Emma lode mining claim in Colorado, one Archie C. Fisk being the owner of 8, and Charles F. Abbey the owner of the remaining. In 1883 Fisk commenced proceedings under the statutes of the United States in advertising the interest of Webber "out of said claim" on account of alleged non-payment of assessment work done by Fisk on said claim in 1882. After the period of the publication of said advertisement, Fisk asserted ownership of of said mining claim. On the 20th of November, 1883, Fisk leased to Abbey said . Webber, desiring to secure possession of said claim, procured from Abbey, November 26, 1883, a lease in the name of Nevitt, his brother-in-law, of an undivided 1, the latter being the nominal and Webber the real owner of the lease. On the 18th of April, 1884, the defendant, Wheeler, by conveyances, had become the owner of all the interest claimed by Fisk. During the same month Webber commenced suit against the grantor of Wheeler, and the administrator and heirs-at-law of Abbey, to recover his interest of in said premises. On the 28th of April, 1884, Webber gave to the plaintiff, Rucker, a quit-claim deed in and to an undivided one-twelfth interest (%) in said mining claim, as his compensation for legal services rendered and to be rendered in the prosecution of said action. In the same year Wheeler and the administrator and heirs-at-law of Abbey commenced an action against Nevitt for the possession of said premises, and to restrain him and his agents from working and mining the same. At the time the quit-claim deed was made to Rucker, it was agreed between him and Webber that Rucker's interest would not be subject to the burden of the lease made by Abbey to Nevitt. In consideration of that deed and agreement the plaintiff entered upon the performance of the legal services necessary to establish Webber's title to said interest of 28. On the 26th of September, 1884 - the defendant being then the owner of both the Abbey and Fisk interests in said claim the plaintiff, for and on behalf of Webber, and acting Statement of the Case. nominally for Webber, together with the defendant's attorney, prepared a written agreement, which was signed and executed by Webber, Nevitt, and the defendant. It had for its object the compromise of the pending litigation between the parties. That agreement was as follows: "This agreement, made and entered into on this 26th day of September, A.D. 1884, by and between J. B. Wheeler, of the first part, and C. E. Nevitt, of the second part, and Henry Webber. "Witnesseth, That whereas the said party of the first part is the owner of certain interests in the Emma mine, situate in Pitkin County, State of Colorado, and a suit is now pending in the District Court of said county on behalf of said Webber against said party of the first part and others for a one-third (3) interest in said mine; and whereas another suit is pending in said court in behalf of the said J. B. Wheeler and others against the said second party to recover possession of said mine; and the said second party in his defence thereto claims to hold a lease of said mine expiring on the 20th day of November, 1884, in which said suit the District Judge of said court has made an order allowing the possession of said property to remain in the hands of said second party during the period of said lease, two-thirds (3) of the proceeds thereof to be paid to John Hulbert, receiver, to be held by him to await the determination of said suit or the further order of the court, less a royalty of fifteen (15) per cent; and whereas said party of the second part has been for some time in the possession of said mine and has extracted a large quantity of ore, a greater portion of which is now on hand undisposed of; and whereas said second party, being desirous of compromising and settling said actions, it is agreed, in consideration of the premises, the said first party will, upon the ensealing of these presents, make, execute, and deliver a sufficient deed of quit-claim to said Webber, his grantees or assigns, for an undivided onefourth (1) interest in said mine, and said Webber, on receipt of said deed, agrees to release, waive, and does hereby release and waive, unto said party of the first part all claims which he may have to any further or other interest in said property. Statement of the Case. "And the suit aforesaid between the said parties to be dismissed upon each party paying their own costs therein. That the suit aforesaid between said first party and said second party shall likewise be dismissed upon the same terms, and the said second party hereby releases and waives to said first party all right and title as to said lease, save and except a one-third (3) interest therein, and at the end of said term to release and surrender the whole thereof and possession thereunder peaceably to said owners, their grantees or assigns. "It is further agreed that the proceeds of the ore now on hand, after payment of the cost of production and after the payment of the costs of hauling and treatment, shall be divided as follows: The said party of the second part to receive one-third (3) thereof, less a royalty of fifteen per cent on said one-third interest, according to the terms set forth in his said lease, and the said party of the first part to receive three-fourths (1) of the remaining two-thirds (3), and the said Webber, his grantees or assigns, one-fourth (4) of the said remaining two-thirds (3), and during the remainder of the term of said lease, namely, up to and inclusive of the 20th day of November, A.D. 1884, the proceeds of the mine to be divided in the same manner and in the same proportions aforesaid, such division also to apply to and include the said royalty to be paid by the second party as aforesaid. "And it is mutually agreed by and between the parties hereto that during the remainder of the term of said lease the said mine shall be under the superintendence of Joseph Ruse, who shall operate, work, and develop the said property for the mutual interest of all the parties hereto, and with a view to developing and preserving the said property as a workable mine as well as the production of ore therefrom, said work to be done by said Joseph Ruse in as economical a manner as possible, and to limit the production therefrom so as to correspond to the expense incident to mining, and the price for which said ore can be sold, and any failure upon the part of said Joseph Ruse to comply with the conditions herein mentioned shall be the cause for removal from such position of superintendent. "The said Joseph Ruse during his continuance as superin |