contracts the debts; that an assessment may be levied or an action may be brought and payment coerced out of the fund resulting from the levy or in the suit to enforce the stock liability. There is no apparent difference in the two cases. Hawthorne v. Calef, 2 Wall. 10; Richmond v. Irons, 121 U. S. 27, 7 Sup. Ct. 788; Stuart v. Hayden, 18 Sup. Ct. 274; Corning v. McCullough, 1 N. Y. 47; Brown v. Hitchcock, 36 Ohio St. 667; Norris v. Wrenschall, 34 Md. 492; Fuller v. Ledden, 87 III. 310; Gebhard v. Eastman, 7 Minn. 56 (Gil. 40); Mining Co. v. Woodbury, 14 Cal. 265; Erickson v. Nesmith, 46 N. H. 371; Witters v. Sowles, 32 Fed. 130.

Starting with this proposition, it is impossible to escape the conclusion. Our statute by which this case is controlled was passed in 1885. It is similar in its terms to the Illinois statute and it certainly warrants a similar construction. We nowhere find in that act a definition of the word "claims," by which what is provable before the assignee is almost universally denominated in the act. Everywhere in it the things provable are called "claims" or "demands,"-in one case, "liabilities,"-but nowhere, except as to those not yet due, are they called "debts." Whenever the words "claims," "demands," and "liabilities" have been the subject of judicial construction, it has always been agreed that they have a broader significance than the word "debts." The statute evidently intended to provide that all claims existing against the assignor at the time of his conveyance should be provable before the assignee and share in the dividends. Since, as we have already seen and determined, the stock liability was created at the time that the bank incurred the debts which are represented by this claim filed by the receiver, it must follow that the demand existed prior to the time of the transfer. The levy of the assessment by the comptroller was simply a computation and the commercial expression of the result of the examination by the government, and the determination of the exact condition of the affairs of the bank. It sufficiently appears from the record that the bank was insolvent when it closed its doors. If that is true, then there was a stock liability antecedently contracted when the bank incurred the debts which were unpaid, and which forced it into insolvency, and this was prior to the time the assignment was executed. Under these circumstances, we cannot but regard this assessment as a claim or a demand owed by the stockholder Riethmann at the time the bank became insolvent, as well as at the time the bank contracted the debts. It is possible that had our statused the legal term "debt," and no other, we might not have been able to reach this conclusion; but since it uses the words "claims," "demands," and "liabilities" exclusively in determining what may be presented, what may be proved, and what may share in the dividends, we must conclude that a

claim of this description, thus maturing and existing prior to the time the deed was executed, is entitled to a distributive share in the estate. This doctrine has been recognized in many cases, and claims of a similar description have been held provable before assignees. In re Reading Iron Works, 150 Pa. St. 369, 24 Atl. 617; Jamison & Co.'s Estate, 163 Pa. St. 143, 29 Atl. 1001; Suppiger v. Gruaz, 137 Ill. App. 216, 27 N. E. 22; Parker v. Hull, 46 Ill. App. 472; Smith v. Goodman, 149 Ill. 75, 36 N. E. 621; Pittsburgh & S. R. Co.'s Appeal, 2 Grant, Cas. 151; In re Ives, 25 Abb. N. C. 63; Dent v. Matteson (Minn.) 73 N. W. 416; Hoyle v. Scudder, 32 Mo. App. 372; In re Rea, 82 Iowa, 231, 48 N. W. 78; Farwell v. Myers, 59 Mich. 179, 26 N. W. 328.

As

We have, therefore, decided that this claim is provable before the assignee. The record, however, is not in such shape as to enable us to determine the limits within which the receiver is entitled to dividends. It is. of course, true that, so far as the individual estate of J. J. Riethmann is concerned, he having been the stockholder, the receiver is entitled, with all the rest of Riethmann's creditors, to share in the distribution of whatever individual estate passed to the assignee of Riethmann's conveyance. we understand it, the same rule applies to the assigned estate of J. J. Riethmann & Co. So far as we are advised by the record, this was a partnership composed of Riethmann and others, and the transfer executed by the firm conveyed the firm property to the assignee in trust, first, for the payment of the firm's debt, and, next, for the payment of Riethmann's individual debts. How far and to what extent the receiver may be entitled to share in the distribution of the assets of the partnership we are not prepared to decide. That can only be ascertained after a hearing in the lower court, by which the character, amount, and nature of the two estates is determined and settled, and wherein also the partnership liabilities and individual debts are ascertained. Nothing contained in this case must be taken as a determination of the extent of the distributive share to which the receiver is entitled in the winding up of the partnership estate. This question brings us into a wholly different domain, requires the settlement of entirely different matters, and the query can only be answered when the facts to which the law must be applied are exhibited in the record. The present case is simply an appeal from the judgment which affirmed the disallowance of the claim by the assignee. No other question is before us. We have only decided that the claim filed by the receiver was one which was provable before the assignee, and the receiver is entitled to whatsoever the law gives him. The foregoing discussion disposes of all the questions which we regard as legitimately presented, and, as the result

of it, the judgment affirming the disallowance of the claim must be reversed. Reversed.

(21 Ment. 345)

HORSKY v. MORAN. (Supreme Court of Montana. July 25, 1898.) PUBLIC LANDS-TOWN-SITE PATENT-ESTOPPEL.

1. The owner of a placer mining claim location, who permitted another to take possession of the lands covered by it, under a deed from a probate judge, to whom the lands had been patented as a town site in trust for the occupants, and remain in uninterrupted possession for 20 years, was estopped by faches from attacking such person's title collaterally.

2. A town-site patent to a probate judge, in trust for the occupants, to lands covered by a prior location of a placer mining claim, is not void, but only voidable, and cannot be collaterally attacked in an action at law by the owner of the placer claim, who never perfected his title.

Appeal from district court, Lewis and Clarke county; Horace R. Buck, Judge.

Action by Joseph Horsky, Jr., against Patrick Moran to quiet title. There was a judgment for plaintiff on the pleadings, and defendant appeals. Affirmed.

T. J. Walsh, for appellant. Toole & Wallace, for respondent.

The

PER CURIAM. Action to quiet title. pleadings show substantially the facts to be as follows: That when the probate judge of Lewis and Clarke county, as trustee for the occupants of the town site of Helena, made the entry of the town site on March 2, 1869, the defendant and appellant, Moran, resided upon and was in possession of certain fractional parts of ground located on Main street, in the original town site of the city of Helena. The town site was platted and deeds issued to the original claimants of town lots, and in 1874 plaintiff and his predecessors in interest received deeds to the aforesaid lots in controversy from the probate judge. Plaintiff ever since 1874 has been in the exclusive and actual possession of the property sued for. In 1888 the defendant applied for and obtained a deed from the probate judge to the land in dispute.

The defendant concedes the facts claimed by the plaintiff to constitute adverse possession, but sets up that he was in possession of a validly located placer claim at the date of the application for, and the entry of, the Helena town site, and that the deed procured by him in 1888 was obtained for the purpose of further assuring his title to the property, and to enable him to get into possession in order to prosecute the necessary development work on his mining claim, but that the plaintiff refused to recognize his right to the possession of the premises described in the deed or to allow him to enter into possession of the same. His position is that his title to the lots in controversy springs from his location of the land, embracing them as a placer

claim. He makes no claim of right by reason of the probate judge having entered the lots with other lots lying within the exterior boundaries of the Helena town site as a trustee for himself as an occupant, but relies upon the contention that the mining claim, located prior to, and in his possession at the date of, the application for the Helena town site, was absolutely excluded from, and that the title thereto did not pass under, the United States patent to the probate judge for said town site; that is to say, he stands upon the proposition that the plaintiff, Horsky, acquir ed no rights by adverse possession to the lofs in question, because the legal title to the same is still vested in the United States.

After the entry of the town site, and prior to the time when the plaintiff became the owner of the premises claimed therein, the defendant left the state of Montana, leaving his mining claim in the possession of his agent; and he avers that during his absence, as he is informed and believes, plaintiff, without right, entered upon, and has since continued to occupy, those portions of the mining claim described in the complaint, and that in like manner other parties entered upon other portions, and continued to hold and occupy the same, and excluded the defendant from the possession thereof. He further sets up that under the laws of the United States and the rules governing mining claims he is required, so as to enable him to obtain a patent, to do certain development work, but that the plaintiff refused to permit him to enter upon the premises for the purpose of doing such work, and that any attempt upon his part to enter to do the work would subject him to a summary action and to personal violence, though defendant is, and always has been, desirous of doing such work and acquiring patent to the mining claim. Defendant's prayer is that plaintiff be dismissed, and that he (defendant) be decreed to be entitled to the possession of the premises described in the complaint, and that an injunction issue preventing plaintiff from interfering with his work of mining the property involved.

The plaintiff moved for a judgment on the pleadings, because the answer stated no defense, and was sham and frivolous, and the cause of action was barred on acount of laches of the defendant, as shown by the papers and proceedings. The district court granted the motion, and rendered judgment in plaintiff's favor declaring defendant's claim, or pretended claim, to be void and without right or equity, and ordering that the deed of the probate judge to defendant be canceled and made null and void. Defendant appeals.

The record contains the opinion of the district court. It is an elaborate review of the decisions of the supreme court of the United States bearing upon the questions involved, and proceeds upon a recognition of the distinctions drawn by the decisions of that court between the reservation or exclusion in and from a placer patent and the doctrine of reser

vation or exclusion from a town-site, homestead, or pre-emption patent. After careful examination of the authorities cited, and many more, we have concluded to adopt the opinion of the trial court as expressive of the unanimous views we hold upon the status of this defendant. who assails the possession and claim of title of the plaintiff, and asks affirma tive relief, but who shows that he wholly neglected to assert and protect any rights he ever had as the possessor of a valid mining claim when the town-site patent was applied for, and offers no excuse for his inaction during the period of nearly 20 years after plaintiff entered upon and occupied the lots before he brought this suit, except that plaintiff refused to allow him to enter upon the premises. By his answer he shows that he has long since disconnected himself from the United States government, stands in no privity with it, and possesses no claim, legal or equitable, to the lots which plaintiff has openly, notoriously, and continuously occupied for over 20 years. Defendant is without any title or claim of title at all. He is in the attitude of an intruder, and it does not lie in his mouth to be heard to assail the plaintiff's position. Bohall v. Dilla, 114 U. S. 50, 5 Sup. Ct. 782. The pleadings, therefore, make the case a proper one to apply the doctrine of laches, well stated by Justice Brewer in Naddo v. Bardon, 2 C. C. A. 337, 51 Fed. 495, as follows: "No doctrine is so wholesome, when wisely administered, as that of laches. It prevents the resurrection of stale titles, and forbids the spying out from the records of ancient and abandoned rights. It requires of every owner that he take care of his property, and of every claimant that he make known his claims. It gives to the actual and long possessor security, and induces and justifies him in all efforts to improve and make valuable the property he holds. It is a doctrine received with favor, because its proper application works out justice and equity, and often bars the holder of a mere technical right, which he has abandoned for years, from enforcing it when its enforcement will work large injury to many."

Although we put our affirmance of the judgment upon the ground of laches, a majority of the court believe that the decision and reasoning of the trial court is the correct solution of the other questions discussed. Judge Buck's opinion is as follows:

"In this action the defendant, Moran, con. tends that the mining claim, located prior to, and in his possession at the date of, the application for the Helena town site, was absolutely excluded from, and that the title thereto did not pass under, the United States patent to the probate judge for said town site. If this premise is conceded, it necessarily follows that the plaintiff has gained no right by adverse possession to the lot of land in controversy, because the legal title to the same is still vested in the United States government. Defendant relies chiefly upon several decisions of the supreme court of Montana when a ter

ritory,-cases in which (save King v. Thomas) conflicts arose between parties claiming title to lots in patented town sites-and claimants basing their title to the same on patents issued for mining claims located prior to the applications for the town-site patents. He cites Milling Co. v. Clarke, 5 Mont. 378, 5 Pac. 570; Talbott v. King, 6 Mont. 76, 9 Pac. 434; King v. Thomas, 6 Mont. 409, 12 Pac. 865; Butte City Smokehouse Lode Cases, 6 Mont. 397, 12 Pac. 858; and certain decisions of the United States supreme court on which the Montana cases depend. The decisions of the United States supreme court, in cases where conflicts have arisen between holders of quartz-lode locations or patents and patented placer locations, if applicable, apparently favor defendant's contention of an absolute exclusion. See Mantle v. Noyes, 5 Mont. 274, 5 Pac. 856; Id., 127 U. S. 348, 8 Sup. Ct. 1132; Sullivan v. Mining Co., 109 U. S. 550, 3 Sup. Ct. 339; Id., 143 U. S. 431, 12 Sup. Ct. 555; Reynolds v. Mining Co., 116 U. S. 689, 6 Sup. Ct. 601; Id., 124 U. S. 374, 8 Sup. Ct. 598; Mining Co. v. Campbell, 133 U. S. 286, 10 Sup. Ct. 765; and Iron Silver Min. Co. v. Mike & Starr Gold & Silver Min. Co., 143 U. S. 394, 12 Sup. Ct. 543. All these cases, save Mantle v. Noyes (an equitable action), were actions in ejectment. These decisions hold that in a placer patent there are excepted and reserved, by the terms of the particular statutes regulating placer claims, from the conveyance, any vein or lode within the placer claim known to exist at the date of the application for the patent. Any prior or valid quartz location within such area is also excepted. In Noyes v. Mantle, 127 U. S., on page 353, 8 Sup. Ct. 1134, the court, however, places this latter kind of exception on the following ground: The section [Rev. St. U. S. § 2333, regulating placer patents] can have no application to lodes or veins within the boundaries of a placer claim which have been previously located under the laws of the United States, and are in the possession of the locators or their assigns;' and it declares that such locations have already been disposed of by the government,-citing from Belk v. Meagher, 104 U. S. 279: 'A mining claim perfected under the law is property, in the highest sense of the term, which may be bought, sold, and conveyed, and will pass by descent.' Whether logical or not, there is a recognized distinction in the doctrine of reservation or exclusion applied to placer patents and the one applied to pre-emption, homestead, and town-site patents. The last three in this respect are classed together. See Deffeback v. Hawke, 115 U. S., on page 404, 6 Sup. Ct. 95, and Barden v. Railroad Co., 154 U. S., on page 322, 14 Sup. Ct. 330. These placer-quartz patent cases, then, cannot control the present controversy, despite their apparent applicability by logical analogy.

"At the time of the issuance of the patent for the original town site of Helena, the general control or supervision of the title to land embraced therein had been intrusted

to the officers of the land department of the government. Whether the said land, or any portion of it, was mineral or nonmineral in character, this was true. The officers of the land department allowed the town-site entry, received the purchase price for every portion of land included therein, and a patent was issued for the same. Under these conditions, is the patent void or voidable as to the mining claim located by the defendant?

"A patent issued by the land department of the United States, as a general rule. transfers the legal title to the land, and has attached to it all presumptions of conclusiveness. It may, however, be absolutely void on its face. And this may be shown when it is considered with reference to the statutes governing it, of which judicial notice is taken; as, for example, when the land described therein has been absolutely reserved from sale, or the government has not title to it, or the land department officers attempt to convey an unauthorized amount of land. When so void, advantage may be taken of it collaterally, in any form of action, legal or otherwise, without extrinsic proof. Such nullity may also appear and be declared from a consideration of extrinsic proof in connection with the law governing it; as, for instance, where, in a conflict between two patents for the-same tract of land, each regular on its face, it is shown that the junior patent is based upon an entry and certificate of final proof and purchase prior in time to the senior patent. Of course, where it readily appears from extrinsic proof, in the light of the law, that the land department had no subject-matter on which to act, as, for instance, where the proof showed that the land embraced in the patent never belonged to the United States, or that it had been previously granted in a regular patent issued by the officers of said department acting within the scope of their authority in the land department, that it can be shown collaterally, even in an action at law, is clear. The same principle would apply where a deed on which a grantee relies is shown to be for property never owned by the grantor, or previously conveyed by him.

"In the case of U. S. v. Schurz, 102 U. S. 378 (which, rather strangely, is cited in Mining Co. v. Campbell, 135 U. S. 301, 10 Sup. Ct. 765, a placer-quartz contest), a homesteader had received a certificate of final proof and receipt of purchase price paid for his land, and the persons actually contesting his title were town-site claimants. The court uses the following language: 'We are not prepared to say that if the patent is absolutely void, so that no right could possibly accrue to the plaintiff under it, the suggestion would not be a sound one. But the distinction between a void and a voidable instrument, though sometimes a very nice one, is still a well-recognized distinc

tion, on which valuable rights often depend. If a patent should issue for land in the state of Massachusetts, where the government never had any, it would be absolutely void. If it should issue for land once owned by the government, but long before sold and conveyed by patent to another, who held possession, it might be held void in a court at law on the production of the senior patent. * * Here the question

is whether this land has been withdrawn from the control of the land department by certain acts of other persons which include it within the limits of an incorporated town. The whole question is one of disputed law and disputed facts. *** If they (the land officers) decided erroneously, the patent may be voidable, but not absolutely void.' In this case, it is true, a contest was pending in the land office between the holder of the homestead certificate and the townsite lot claimants; the latter, no doubt, as a matter of fact, being mere trespassers, and not in a position to contest, under later authorities. See Smelting Co. v. Kent, 104 U. S. 644. It is true, also, that where parties have had a contest over their claims in the land department, and one has succeeded in obtaining, virtually as a result of the contest, a patent, the courts either refuse altogether or are very reluctant to go behind the decision of the land office in the premises. U. S. v. Throckmorton, 98 U. S. 61; Vance v. Burbank, 101 U. S. 514; U. S. v. Minor, 114 U. S. 233, 5 Sup. Ct. 836; Steel v. Refining Co., 106 U. S. 447, 1 Sup. Ct. 389. But the language I have just quoted is clearly applicable, in a general way, to this question of how a patent may be attacked.

"There are certain decisions, however, often cited as holding that, even when a patent regular on its face has been issued by officers of the land department acting apparently within the scope of their jurisdic tion, that is to say, having a general supervision of the title to the land conveyed,— extrinsic evidence may be offered in an action at law to establish, as a matter of fact, said officers had no authority to issue the patent, for the reason that the land had been previously disposed of or reserved from sale. See Smelting Co. v. Kemp, 104 U. S. 636; Steel v. Refining Co., 106 U. S. 447, 1 Sup. Ct. 389; and also various decisions in which they are cited.

"It is from obscure language used in some of these decisions, mainly the phrase 'previously conveyed,' that confusion arises as to what constitutes such an absence of authority as will authorize a judgment of nullity on collateral attack. The Montana decisions relied upon by defendant indicate this confusion. A careful consideration of the case, however, satisfies me that the obscure expressions from which it results are susceptible of definite interpretation and construction. The general rule, to reiterate, is as follows: 'It has always been

held that an absolute want of power to issue a patent could be shown in a court of law to defeat a title set up under it, though, where it is merely voidable, the party may be compelled to resort to a court of equity to have it so declared.' Sherman v. Buick, 93 U. S. 216.

"In Doolan v. Carr, 125 U. S. 618, 8 Sup. Ct. 1228, an action of ejectment brought by a grantee under a United States patent to a railroad company against two persons in possession, who had attempted to file declaratory pre-emption statements for the same in the land office, but had not been permitted to do so, the court, on page 624, 125 U. S., and page 1231, 8 Sup. Ct., uses the following language: "There is no question as to the principle that where the officers of the government have issued a patent in due form of law, which on its face is sufficient to convey the title to the land described in it, such patent is to be treated as valid in actions at law, as distinguished from suits in equity, subject, however, at all times, to the inquiry whether such officers had the lawful authority to make a conveyance of the title. But if these officers acted without authority, if the land which they purported to convey had never been within their control, or had been withdrawn from that control at the time they undertook to exercise such authority, then their act was void,-void for want of power in them to act on the subject-matter of the patent, not merely voidable. In which latter case, if the circumstances justified such a decree, a direct proceeding, with proper averments and evidence, would be required to establish that it was voidable, and should therefore be avoided. The distinction is a manifest one, although the circumstances that enter into it are not always easily defined. It is, nevertheless, a clear distinction, established by the law, and it has been often asserted in this court, that even a patent from the government of the United States, issued with all the forms of the law, may be shown to be void by extrinsic evidence, if it be such evidence as by its nature is capable of showing a want of authority for its issue.' The decisions of this court on this subject are so full and decisive that a reference to a few of them is all that is necessary: Polk's Lessee v. Wendal, 9 Cranch, 87; New Orleans v. U. S., 10 Pet. 730; Wilcox v. Jackson, 13 Pet. 498, 509; Stoddard v. Chambers, 2 How. 284, 317; Easton v. Salisbury, 21 How. 426, 428; Reichart v. Felps, 6 Wall. 160; Best v. Polk, 18 Wall. 112, 117; Leavenworth, L. & G. R. Co. v. U. S., 92 U. S. 733; Newhall v. Sanger, 92 U. S. 761; Sherman v. Buick, 93 U. S. 209; Smelting Co. v. Kemp, 104 U. S. 636; Steel v. Refining Co., 106 U. S. 447, 1 Sup. Ct. 389; Railway Co. v. Dunmeyer, 113 U. S. 629, 642, 5 Sup. Ct. 566; Reynolds v. Mining Co., 116 U. S. 687, 6 Sup. Ct. 601. See, also, Knight v. Association, 142 U. S. 161, 12 Sup. Ct. 258. "I cite the case of Doolan v. Carr because it is sweeping in its announcement of the right

to attack a patent collaterally, and cites many decisions on the subject. But it appears in this very case that the patent to the railroad company was for lands over which (as the appellants contended) at the date of its issuance the land department had absolutely no control, as they were sub judice. No legal title could have passed under the proof offered, as it tended to show both that the land in controversy had never been embraced in the railroad grant, and was not public when included in the patent, and the court seems to have had prominently in view the principle that in an action of ejectment the plaintiff must prevail on the strength of his own title. See 125 U. S. 629, 8 Sup. Ct. 1228. See, also, Steel v. Refining Co., 106 U. S., on page 452, 1 Sup. Ct. 389, as to this principle controlling in actions of ejectment. Chief Justice Waite, in his dissenting opinion on page 636, 125 U. S., and page 1237, 8 Sup. Ct., summarizes his conclusions from a review of the cases cited by a majority of the court as follows: 'Many more cases of a similar character might be cited, but it is needless to pursue them further. They establish, beyond all question, that if one holds under an older title, or if he is in possession under a junior claim to represent the title of the government, he may attack the validity of the patent in a suit at law on the ground that it was issued without proper authority. On the other hand, it seems to me well settled that, if he who seeks to contest the patent is a volunteer,-a mere intruder,-he will not be heard;' and he cites numerous authorities sustaining this view. The main ground of his dissent was that the defendants, being mere intruders, whose pre-emption entries had never been received, were not in a position to question the patent. He quotes also in this dissenting opinion, on page 637, 125 U. S., and page 1237, 8 Sup. Ct., from the language of Chief Justice Marshall in Hoofnagle v. Anderson, 7 Wheat. 212, as follows: 'A patent appropriates the land it covers, and that land, being no longer vacant, is no longer subject to location. If the patent has been issued irregularly, the government may provide means for repealing it; but no individual has a right to annul it, to consider the lands still vacant, and appropriate it to himself.' Pages 214, 215. "This seems to me,' Judge Waite continues, 'to be the true rule; and one way the government may adopt to annul a patent which has been issued without authority of law is to grant the land to another, and thus clothe the new grantee with its own power to test the validity of the former proceeding to devest it of title. Such a grantee will thus be made to represent the United States by authority, and he may sue for the land. With such a title, or something equivalent to it, the courts may properly, as has been done heretofore, allow him to assert his own title; that is, the title of the government against one which was apparently granted before. Such an attack on the title would be direct,