(195 U. S. 480) is here meant has not been changed. By | JOHN A. HUMBIRD and Frederick Weyerthe decisions of this court, which are col haeuser lected in the opinion delivered in Forsyth v. v. Vehmeyer, 177 U. S. 177, 180, 44 L. ed. WALDO A. AVERY et al. 723, 725, 20 Sup. Ct. Rep. 623, it was held, reviewing the former cases in this court, Public lands—railroad land grants-conthat, under the act of 1867, the fraud re flicting claims-vested rights-court's inferred to meant positive fraud, or fraud terference with Land Department. in fact, involving moral turpitude or intentional wrong, and not implied fraud, 1. Sales or contracts made by the Northern which may exist without an imputation of Pacific Railway Company after its acceptance bad faith. “Such a construction of the stat- of the act of July 1, 1898 (30 Stat. at L. ute," it was said in Neal v. Clark, 95 U. S. 597, 620, chap. 546), cannot defeat the oper704, 709, 24 L. ed. 586, 587, “is consonant ation of the provisions of that act, enacted to settle disputes arising out of conflicting with equity, and consistent with the object rulings in the Land Department with referand intention of Congress in enacting a ence to the eastern terminus of the railroad general law by which the honest citizen may as affecting the Northern Pacific land grant, be relieved from the burden of hopeless in- by permitting any purchaser or settler claimsolvency. A different construction would be ing, in good faith, under any law of the United States or ruling of the Land Departinconsistent with the liberal spirit which ment, any land so situated that a right there pervades the entire bankrupt system.” This to in the railroad grantee or its successor in language, we think, equally applies to the interest attached by reason of definite locapresent case. The difference is that, under tion or selection, to elect whether to retain or the act of 1898, claims for fraud prosecuted transfer his claim, and requiring the Secre tary of the Interior to furnish the company to judgment will not be exempted. The with a list of the lands so retained, and allowreason for this change, as suggested by Mr. ing the company to select other lands in lieu Justice Brown, in delivering the opinion in thereof upon executing a proper relinquishCrawford v. Burke, may be that Congress ment, although the statute contains a provi. did not intend to offer any inducement to sion that the railroad grantee or its successor in interest shall not be bound to relinquish change unliquidated claims into actions for lands sold or contracted by it. fraud, and therefore limited the exception 2. A waiver of the objection that vested rights from the operation of the discharge to such of the railroad company under the Northern cases only as had been litigated and reduced Pacific land grant are interfered with by the to actual judgment. When such is the case provisions of the act of July 1, 1898, enacted we think a correct interpretation of the law to settle disputes arising out of conflicting does not require a close examination into rulings in the Land Department with referthe form of the action to determine whether ence to the eastern terminus of the railroad as affecting its land grant, results from the technically it is one ex delicto or otherwise, acceptance of that act by the successor in but the real question is, Was the relief interest of the railway grantee. granted in the judgment based upon actual, 3. A court of equity will not undertake to de as distinguished from constructive, fraud termine, in advance of the final action of the of the bankrupt? If the judgment is thus Land Department, the respective rights of founded, whatever the form of the action, it grantees from the Northern Pacific Railway Company of land claimed to be within the is the intent and purpose of the law that indemnity limits of the land grant of July 2, the bankrupt shall not be discharged from 1864 (13 Stat. at L. 365, chap. 217), and it, but shall still rest under its obligation, settlers and purchasers from the United 60 far as the bankrupt law is concerned. States or their grantees, whether holding As thus interpreted, we think there can patents or not, who claim the protection of the act of July 1, 1898, enacted to settle disbe no question that the judgment rendered putes arising out of conflicting rulings in the in this case was based upon the fraud of Land Department with reference to the eastBullis and Barse. The facts charged and ern terminus of the railroad as affecting the found showed false and fraudulent repre- Northern Pacific land grant, by permitting sentations as to the character of the prop any purchaser or settler claiming, in good faith, under any law of the United States or erty which was to be the security of those ruling of the Land Department, any land so who should purchase the bonds, and resulted situated that a right thereto in the railroad in depriving them wrongfully of valuable grantee or its successor in interest attached rights. These findings were held sufficient by reason of definite location or selection, to in the state tribunals to warrant relief on elect whether to retain or transfer his claim, and requiring the Secretary of the Interior to the ground of fraud, and the judgment in furnish the company with a list of the lands this case is, in our opinion, in an action 80 retained, and allowing the company to se for fraud within the meaning of the bank- lect other lands in lieu thereof upon executing rupt law. a proper relinquishment. The judgment of the Supreme Court of New York is, therefore, affirmed. [No. 7.] ON , Argued October 23, 26, 1903. Decided De- claims of the defendants constitute clouds cember 12, 1904. upon their title. The defendants assert title under the land N A CERTIFICATE from, and an order laws as settlers and purchasers from the to, the United States Circuit Court of United States, or grantees of such settlers Appeals for the Eighth Circuit bringing up and purchasers. But the bill alleges that a case pending in that Court on an appeal the lands here in dispute are part of the from a decree of the Circuit Court for the grant to the Northern Pacific Railroad ComDistrict of Minnesota dismissing without pany, and that the Land Department wrongprejudice, except as to lands for which fully and unlawfully permitted the entries patents have been issued, a bill in a suit under which the defendants severally claim. involving the title to certain tracts of land The circuit court dismissed the bill, but situated on the line of the Northern Pacific without prejudice, except as to all lands Railway. Modified by adjudging that the here involved for which patents had been isdismissal must be without prejudice to any sued. 110 Fed. 465. suit that may be rightfully instituted by It seems both appropriate and necessary a claimant after the jurisdiction of the that the facts be fully stated. That stateLand Department in respect to any partic- ment we now proceed to make, premising ular lands has ceased, and, as so modified, that the present controversy had its origin, affirmed. as will be presently shown, in conflicting orThe facts are stated in the opinion. ders or rulings in the Land Department as Messrs. William W. Billson, C. w. to what was the eastern terminus of the Bunn, Chester A. Congdon, H. Oldenburg, Northern Pacific Railroad. and James B. Kerr for Humbird et al. By the above act of July 2d, 1864, chap. Messrs. Benton Hanchett and H. H. 217, Congress made a grant of lands to the Hoyt for Avery et al. Northern Pacific Railroad Company in aid Mr. M. A. Stanford for Lesure Lumber of the construction of a railroad and teleCompany. graph line from some point on Lake SupeMr. Luther C. Harris for Olean Land rior, in Minnesota or Wisconsin, to some Company and Alger, Smith & Company. point on Puget sound, with a branch, via Assistant Attorney General Frank L. Columbia river, to a point at or near PortCampbell, and Messrs. A. C. Campbell land. The act established indemnity limits and F. W. Clements for the United States, not more than 10 miles beyond the limits of intervener. the alternate sections granted. 13 Stat. at L. 365. Mr. Justice Harlan delivered the opinion By a joint resolution approved May 31st, of the court: 1870, second indemnity limits were estabThis case was brought before us upon lished within 10 miles on each side of the questions certified by the circuit court of road, beyond the limits prescribed in the appeals. Subsequently, the United States company's charter. 16 Stat. at L. 378, Reswas allowed to intervene upon the general olution 67. The effect of this resolution was ground that the case involved important to allow the company, under the direction of questions affecting the administration of the the Secretary of the Interior, to go into secpublic land laws, including the grant to the ond indemnity limits in order to supply any Northern Pacific Railroad Company then in deficiency in lands on its main line or branch. process of adjustment. And on motion of the government, the plaintiffs and defend transmitted to the Secretary of the Interior On the 3d day of July, 1882, the company ants concurring, the whole record was or a map of definite location covering the prodered to be sent up for our consideration. The case involves the title to numerous St. Paul & Duluth Railroad, near Duluth, posed line from Thompson Junction, on the tracts of land situated on the line of the Minnesota, to Ashland, in Wisconsin. That Northern Pacific Railway between Duluth map was duly approved by the Secretary of and Ashland. The lands are described in an the Interior, and the lands embraced by it exhibit attached to the bill. were withdrawn from sale or entry. The plaintiff's, Humbird and Weyerhaeus- By resolution of the board of directors of er, sue as grantees of the Northern Pacific the company, adopted August 28th, 1884, Railway Company, a Wisconsin corporation, Ashland was declared to be the eastern terwhich, it is claimed, succeeded, in respect of minus of the road; and that resolution was the lands in dispute, to all the rights, in- accepted by the Secretary on December 3d, terests, and ownership of the Northern Pa- 1884, as establishing such terminus. cific Railroad Company, created by the act The part of the road delineated on the of Congress of July 20, 1864 (13 Stat. at map of definite location was constructed and L. 365, chap. 217). They allege that the was duly accepted; and in conformity with the directions of the Secretary the com- definite location and the lists of selections pany, the circuit court states, filed lists of filed by it with the Secretary. In reference selections of lands, some in the first and oth- to the action of the Interior Department, ers in the second indemnity limits, in lieu of the circuit court said: “By reason of the lands lost to it in its place limits, such erroneous ruling of the Secretary of the Inlists including all the lands in controversy terior as to the location of the eastern ter. in this suit. But the bill avers that no final minus of said railroad, and his revocation acuon has ever been taken by the Land De- of his prior approval of lawful selections partment upon such lists; and they have by the railroad company of indemnity lands, not yet been approved by the Department. and permitting sales and entries of such se Subsequently, on August 12th, 1896, the lected lands, as unappropriated, he had Secretary of the Interior ruled that Duluth, introduced confusion and conflict in respect not Ashland, was the eastern terminus of to the right to such lands, which was bethe railroad, and therefore that the land ginning to be litigated in the courts. . grant of 1864 did not embrace any lands The fact that patents had issued in a few between Duluth and Ashland. The com- instances would not end such disputes as pany's lists of selections were thereupon to the lands so patented, as courts would canceled by order of the Secretary, and the adjudge the patentee in any case to hold lands covered by them were thereafter treat- the title in trust for the other party, ed by the Department as unappropriated wherever the other party had clearly the public lands, and were opened for sale and right to the land.” 110 Fed. 465, 469. entry. Such was the situation when Congress inThis appears from an official communi corporated into the body of the sundry cation addressed by the Commissioner of civil appropriation act of July 1st, 1898 the General Land Office, with the approval (30 Stat. at L. 597, 620, chap. 546), subdiof the Secretary of the Interior, to the reg- vision, Surveying the Public Lands, certain ister and receiver at Duluth. In that com- provisions relating to the Northern Pacific munication the Commissioner said: “On land grant. As these provisions disclose a August 27th, 1896, the Secretary of the In- scheme or plan for the settlement of the terior rendered a decision wherein he held disputes arising out of the conflicting rulthat the initial point on Lake Superior, or ings in the Land Department in reference the eastern terminus of the grant to the to the eastern terminus of the railroad, and Northern Pacific Railroad Company, was at its action in reference to the public lands Duluth, Minnesota, and on December 24th, between Duluth and Ashland, they should 1896, he approved a diagram prepared by all be examined in order to ascertain the this office showing the eastern terminal of intention of Congress. They are therefore the grant. On January 23d, 1897, a copy here given in full. of so much of said diagram as related to or By that act—dividing it, for convenience. affected lands within your district was into paragraphs—it was provided : transmitted to you for the use and guidance “That where, prior to January first, eighof your office. The decision of the Secre- teen hundred and ninety-eight, the whole or tary aforesaid had the effect of restoring to any part of an odd-numbered section, in the public domain all lands lying east of either the granted or the indemnity limits said terminal, which had theretofore been of the land grant to the Northern Pacific withdrawn on account of the grant to said Railroad Company, to which the right of railroad company. Therefore to the end the grantee or its lawful successor is that all persons interested may have an op-claimed to have attached by definite locaportunity to present any claims they may tion or selection, has been purchased directhave to any of these lands, you will cause ly from the United States, or settled upon to be published for the period of thirty or claimed in good faith by any qualified days, in some newspaper of general circula- settler under color of title or claim of right tion in their vicinity, a notice referring to under any law of the United States or any said Secretary's decision, which in effect ruling of the Interior Department, and declared that all lands previously with where purchaser, settler, or claimant refuses drawn on account of the grant to the North to transfer his entry as hereinafter proern Pacific Railroad Company, and lying vided, the railroad grantee or its successor east of the terminal established at Duluth, in interest, upon a proper relinquishment are restored to the public domain and are thereof, shall be entitled to select in lieu subject to disposal at your office." of the land relinquished an equal quantity Under the above ruling of the Secretary of public lands, surveyed or unsurveyed, not as to the eastern terminus, the defendants mineral or reserved, and not valuable for were allowed to make entries and purchases stone, iron, or coal, and free from valid adon the line of the railroad between Duluth verse claim, or not occupied by settlers at and Ashland, despite the company's map of the time of such selection, situated within the survey: any state or territory into which such rail. | road right, other lands may be selected in road grant extends, and patents shall issue lieu thereof by said railroad grantee or its for the land so selected as though it had successor in interest, as hereinbefore probeen originally granted; but all selections vided, and patents shall issue therefor: of unsurveyed lands shall be of odd-num- 5. “And provided, further, That nothing bered sections, to be identified by the sur-herein contained shall be construed as invey when made, and patent therefor shall tended or having the effect to recognize the issue to and in the name of the corporation Northern Pacific Railway Company as the surrendering the lands before mentioned, lawful successor of the Northern Pacific and such patents shall not issue until after Railroad Company in the ownership of the lands granted by the United States to the 2. “Provided, however, That the Secre- Northern Pacific Railroad Company, under tary of the Interior shall from time to time and by virtue of foreclosure proceedings ascertain, and, as soon as conveniently may against said Northern Pacific Railroad be done, cause to be prepared and delivered Company in the courts of the United States, to the said railroad grantee or its successor but the legal question whether the said in interest a list or lists of the several Northern Pacific Railway Company is such tracts which have been purchased or set- lawful successor of the said Northern Pacific tled upon or occupied as aforesaid, and are Railroad Company, should the question be now claimed by said purchasers or occu- raised, shall be determined wholly without pants, their heirs or assigns, according to reference to the provisions of this act, and the smallest government subdivisions. And nothing in this act shall be construed as all right, title, and interest of the said enlarging the quantity of land which the railroad grantee or its successor in interest, said Northern Pacific Railroad Company is in and to any of such tracts, which the said entitled to under laws heretofore enacted: railroad grantee or its successor in inter- 6. “And provided, further, That all qualest may relinquish hereunder shall revertified settlers, their heirs or assigns, who, to the United States, and such tracts shall prior to January first, eighteen hundred be treated, under the laws thereof, in the and ninety-eight, purchased, or settled upsame manner as if no rights thereto had on or claimed in good faith, under color of ever vested in the said railroad grantee, and title or claim of right under any law of the all qualified persons who have occupied and United States or any ruling of the Interior may be on said lands as herein provided, Department, any part of an odd-numbered or who have purchased said lands in good section in either the granted or indemnity faith as aforesaid, their heirs and assigns, limits of the land grant to the Northern shall be permitted to prove their titles Pacific Railroad Company, to which the to said lands according to law, as if said right of such grantee or its lawful successor grant had never been made; and upon such is claimed to have attached by definite lorelinquishment said Northern Pacific Rail-cation or selection, may in lieu thereof road Company or its lawful successor in in-transfer their claims to an equal quantity terest may proceed to select, in the man- of public lands, surveyed or unsurveyed, not ner hereinbefore provided, lands in lieu of mineral or reserved, and not valuable for those relinquished, and patents shall issue stone, iron, or coal, and free from valid adtherefor: verse claim, or not occupied by a settler 3. "Provided, further, That the railroad at the time of such entry, situated in any grantee or its successor in interest shall ac- state or territory into which such railroad cept the said list or lists so to be made by grant extends, and make proof therefor as the Secretary of the Interior as conclusive in other cases provided; and in making such with respect to the particular lands to be proof, credit shall be given for the period relinquished by it, but it shall not be bound of their bona fide residence and amount of to relinquish lands sold or contracted by their improvements upon their respective it, or lands which it uses or needs for rail. claims in the said granted or indemnity limroad purposes, or lands valuable for stone, its of the land grant to the said Northern iron, or coal: Pacific Railroad Company, the same as if 4. “And provided, further, That whenever made upon the tract to which the transfer any qualified settler shall in good faith is made; and before the Secretary of the make settlement in pursuance of existing Interior shall cause to be prepared and delaw upon any odd-numbered sections of un- livered to said railroad grantee or its sucsurveyed public lands within the said rail. cessor in interest any list or lists of the road grant to which the right of such rail- several tracts which have been purchased or road grantee or its successor in interest settled upon or occupied as hereinbefore has attached, then, upon proof thereof sat provided, he shall notify the purchaser, setisfactory to the Secretary of the Interior, tler, or claimant, his heirs or assigns, claimand a due relinquishment of the prior rail-'ing against said railroad company, of his right to transfer his entry or claim, as here- fendants nor their grantors after the defiin provided, and shall give him or them nite location of the road as shown by the option to take lieu lands for those claimed company's accepted map of location could by him or them, or hold his claim and al- have acquired any valid title by entry or low the said railroad company to do so un- settlement, or by purchase, except from the der the terms of this act." 30 Stat. at L. railroad grantee, and that the defense can597, 620. not be maintained without violating the The provisions of that act were formally rights that were vested in the company in accepted in writing by the Northern Pacific virtue of such definite location. Railway Company on the 13th of July, The defendants, of course, combat this 1898, in writing, and such written accept- view of the rights of the parties, and insist ance was promptly transmitted by the com- that they are fully protected in their claims pany to the Secretary of the Interior. by the act of 1898, all the provisions of In a case in the supreme court of Wis- which, as we have seen, were accepted by consin, determined shortly before the act the railroad company. of 1898, it was held, contrary to the ruling In the statement accompanying the cer. of the Interior Department in 1896, that tified questions it is set forth that prior Ashland, and not Duluth, was the eastern to the passage of the act of July 1st, 1898, terminus of the Northern Pacific Railway. the Secretary of the Interior had, pursuant Northern P. R. Co. v. Doherty, 100 Wis. to his original ruling as to the eastern ter39, 75 N. W. 1079. Upon writ of error to minus of the railroad, caused patents to this court that judgment was affirmed. Do- be delivered to defendant settlers or their herty v. Northern P. R. Co. 177 U. S. 421, grantors for about 3,400 acres of the lands 44 L. ed. 830, 20 Sup. Ct. Rep. 677, and involved in this suit; that at the time of United States v. Northern P. R. Co. 177 U. the passage of that act about 2,800 acres S. 435, 44 L. ed. 836, 20 Sup. Ct. Rep. 706. of the lands in question had been entered After the above decisions by this court- by defendant settlers or their grantors priwhich were rendered April 16th, 1900—the or to January 1st, 1898, but no patents Secretary of the Interior revoked the order therefor had been issued; that after Jancanceling the company's above lists of se- uary 1st, 1898, the settlers or their grantlections, and reinstated them. Shortly be- ors Shortly be- ors were permitted to enter about 5,000 fore those cases were argued here, namely, acres of the lands here in controversy. The on January 19th, 1900,—and apparently to situation is thus described in the statement meet the contingency of a reversal by this sent up by the circuit court of appeals: Of court of the judgment of the supreme court the lands claimed by the plaintiffs as sucof Wisconsin,—the Northern Pacific Rail-cessors in interest of the Northern Pacific way Company made conveyances with war- Railroad Company about 3,400 acres thereof ranty to the plaintiffs, Humbird and Weyer- were held by the appellees under patents is. haeuser, of all the lands aggregating more sued by the government prior to July 1st, than 10,000 acres, the title to which is here 1898; for the residue of the lands the setin dispute. As appears from the record, tlers held final receipts and final certificates, these conveyances were made after the Land such final receipts and final certificates, as Department had issued regulations to facili- respects about 5,000 acres, being for tracts tate the adjustment of claims under the act entered subsequent to January 1st, 1893. of July 1st, 1898. It should be recalled In reference to the lands for which final rehere that the lands covered by those con- ceipts and certificates have been issued veyances were placed on the above list of nothing, so far as appears, remains to be selections filed by the railroad company, done by the Land Department except the but those lists had not then, nor have they issuing of patents. since, received the approval of the Secre- The relief sought is a decree declaring, tary. among other things, that the lands de It is contended by the plaintiffs that the scribed in the exhibit attached to the bill, result of the above decisions in this court, and all the timber standing or lying thereadjudging the eastern terminus of the on, belong to the plaintiffs; that the enNorthern Pacific Railroad to be at Ash-tries, locations, final certificates, Land Ofland, Wisconsin, and not at Duluth, Min-fice receipts, and patents, under which the nesota, was that the odd-numbered alter- several defendants claim, be adjudged to be nate sections between Duluth and Ashland, void and removed as clouds from the titles on either side of the railroad, as definitely of the plaintiffs, and the defendants sever. located, to the extent and within the lim-ally enjoined from asserting any title by its scribed, and not excluded from the virtue thereof; and that such of the de grant of July 2d, 1864, were to be deemed fendants as hold . patents may be declared public lands from which that grant could to hold as trustees for the plaintiffs in rebe supplied, and to which neither the de- spect of any title conveyed by such pat |