Opinion of the Court.

A principle somewhat analogous to the one expressed in The Leavenworth Case was announced in Kansas Pacific Railway Co. v. Dunmeyer, 113 U. S. 629. There a homestead claim had been filed in the land office by one Miller upon part of an odd-numbered section lying within the place limits of the grant of land to the Union Pacific Railroad Company. The claim was recognized by a certificate of entry before the route of the company's road was definitely located. Subse quently to the definite location, Miller abandoned his entry and purchased the land from the railroad company, and to him a certificate of sale was given. This certificate of sale afterwards passed to one Lewis Dunmeyer, to whom the company gave a deed purporting to convey a good title. After Miller's purchase the homestead entry was cancelled. One G. B. Dunmeyer then made an entry of the land under the homestead law, claiming that by Miller's abandonment of the former entry and its cancellation the land had not been brought within the grant, but had reverted to the mass of the public land. Lewis Dunmeyer then brought an action against the company in the state court of Kansas, on the covenant in the deed for a good title, and recovered judgment, which was affirmed by the Supreme Court of the State, and from that court was brought here. The question, among others, considered was the effect of the abandonment of the homestead claim by Miller upon the ownership of the property. It was contended that although Miller's homestead claim had attached to the land within the meaning of the exception of the grant before the line of definite location was filed, yet, when he abandoned his claim so that it no longer existed, the exception ceased to operate, and the land reverted to the company; and that the grant, by its inherent force, reasserted itself and extended to and covered the land as though it had never been within the exception. But the court rejected this view, stating that it was unable to perceive the force of the proposition, observing: "No attempt has ever been made to include lands reserved to the United States, which reservation afterwards ceased to exist, within the grant, though this road, and others with grants in similar language, have more

Opinion of the Court

than once passed through military reservations for forts and other purposes, which have been given up or abandoned as such reservations, and were of great value; nor is it understood that in any case where lands had been otherwise disposed of, their reversion to the government brought them within the grant." Not only does the land once reserved not fall under the grant should the reservation afterwards from any cause be removed, but it does not then become a source of indemnity for deficiencies in the place limits. Such deficiencies can only be supplied from lands within limits designated by the granting act or other law of Congress. The land covered by the preemption entry being thereby excepted from the grant to the Northern Pacific Railroad Company was also thereby excepted from any withdrawals from sale or preëmption of public lands for its benefit.

From the decisions cited, and approving, as we do, the reasons on which they are founded, it follows that the land in controversy, upon which Robinson had made a preëmption claim as early as September 12, 1855, it being then open to preëmption sale, and subsequently filed his declaration of settlement under the preemption laws, and by whose heirs, after his death, payment of the purchase price had been made, and to them a receiver's receipt therefor given, and a certificate of entry issued to them, was severed from the mass of public lands from which the grant to the Northern Pacific Railroad Company could alone be satisfied. That preëmption entry remained of record until August 5, 1865, when it was cancelled, but this was after the date of the grant to the Northern Pacific Railroad Company, and also after the dates of the sev eral grants made to the State of Wisconsin to aid in the construction of railroad and telegraph lines within that State. The cancellation, as already said, did not have the effect of bringing the land under the operation of the grant to the Northern Pacific Railroad Company; it simply restored the land to the mass of public lands to be dealt with subsequently in the same manner as any other public lands of the United States not covered by or excepted from the grant.

No disposition was subsequently made of the land thus re

VOL. CXLV-35

Syllabus.

stored to the public domain until December 2, 1871, when it seems that one Owen Sheridan applied for a homestead entry upon it, and was permitted to make such entry, and the same remained of record until the 30th of June, 1880, when it was cancelled. From that time the land continued a part of the unappropriated public lands of the United States until the 24 of January, 1881, when the appellant, Mary Bardon, made her preëmption settlement upon it and afterwards followed up the settlement with all the steps required by law for the acquisition of the title. On the 14th of February, 1881, she filed her declaratory statement therefor; on the 8th of June, 1882, she made her final proofs; on the 22d of June she made her payment for the land, and on the 19th of January, 1887, the Secretary of the Interior issued to her a patent of the United States for the land in the form provided by law.

There was nothing in any of the proceedings of the Northern Pacific Railroad Company, or of the companies to whom the land granted to Wisconsin was conveyed by the State, or in the acts of the appellant, which in any respect impaired her right to the completion of her preëmption claim, or to the full fruition of her perfected title.

It follows that

The decree must be reversed, and the cause be remanded to the Circuit Court, with a direction to dismiss the bill; and it is so ordered.

JENKINS v. COLLARD.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF OHIO.

No. 316. Submitted April 18, 1892. - Decided May 16, 1893.

Although, under the ruling in Wallach v. Van Ryswick, 92 U. S. 207, the defendant in a proceeding for confiscation under the confiscation act of July 17, 1862, 12 Stat. 589, c. 195, and Joint Resolution No. 63, of the same date, 12 Stat. 627, had no power of alienating the reversion of

Statement of the Case.

remainder which was still in him after confiscation and sale, still an alienation of it by him by a deed of warranty, accompanied by a covenant of seizin on his part, estopped him and all persons claiming under him from asserting title to the premises against the grantee, his heirs and assigns, or from conveying it to any other parties.

The general pardon and amnesty made by the public proclamation of the President at the close of the war of the rebellion had the force of public law.

THE Court stated the case as follows:

This is an action of ejectment brought by the plaintiffs to recover of the defendant two lots of land in the city of Cincinnati, Ohio, with the buildings thereon, known as Nos. 50 and 52 West Pearl Street in that city. The plaintiffs below, who are also plaintiffs in error here, are the children and only heirs of Thomas J. Jenkins, deceased. They are residents and citizens of West Virginia. Two of them, Albert Gallatin Jenkins and George R. Jenkins, are minors under the age of twenty-one years, and appear by their mother and guardian. The defendant is a citizen of Ohio and a resident of Cincinnati. The petition, the designation given to the first pleading in the case, alleges that prior to 1863 Thomas J. Jenkins was the owner of the real estate mentioned, which is fully described, and that while such owner he joined the rebel army, and such proceedings were had in the District Court of the United States for the Southern District of Ohio in the year 1863; that the property was confiscated, and the life estate of Jenkins was sold, and the defendant William A. Collard, then or subsequently in the year 1865, and during the lifetime of Jenkins, became the owner of the life estate; that Jenkins died on the 1st day of August, 1872; and that thereupon the plaintiffs became seized of the legal estate in the premises and entitled to the possession thereof; but that the defendant since that time has unlawfully kept them out of possession. The petition also sets forth that the defendant has been receiving the rents, issues and profits of the premises from the first day of August, 1872, up to the commencement of this action without the consent of the plaintiffs, and has refused to account for them; that their yearly value has been, on the average, eighteen hun

Statement of the Case.

dred dollars; and that the plaintiffs have been deprived of all profit and benefit from the premises since that time, to their damage of forty thousand dollars. They therefore pray judgment for the possession of the premises and for the damages alleged.

The defendant appeared to the action and set up nine defences. The first defence, which was substantially the general issue, was subsequently withdrawn. To the several other defences demurrers were interposed and all of them, except the one to the second defence, were sustained, and no further proceeding respecting them was taken. The second defence was as follows:

"For a second defence the defendant says that he denies that such proceedings were had in the District Court of the United States within and for the Southern District of Ohio, in the year 1863, or at any other time, that the said property. was confiscated, but defendant avers that in a proceeding instituted in said court in the year 1863, a decree was entered in the words and figures following, to wit:

"District Court United States, Southern District of Ohio. "The United States

vs.

"Lots and Stores Nos. 50 and 52, Pearl Street, Cincinnati.

"This cause came on for hearing at this term, upon the libel of information filed herein, and upon the evidence in the case, and the court find that, in pursuance of law, the attorney of the United States for the Southern District of Ohio did issue to the marshal of said district his warrant in writing bearing date March 9th, 1863, commanding him to seize for the cause set forth in said warrant all the right, title, and interest of one Thomas J. Jenkins, in and to the real estate described in said warrant, and in said libel of information, and that in pursuance thereof the said marshal, on the 12th day of March, 1863, seized said real estate and notified the tenants thereof, and also W. A. Collard, agent of said Jenkins, of such seizure by notice in writing. That afterwards, on the 7th day of March, 1863, a writ of monition issued out of this court,