ered to the interested party as his evidence of title. The Lerma grant was issued in 1823, and certified copy made by Pilar del Laso, second alcalde of Paso del Norte, in 1852, and delivered to the plaintiff, who is the sole heir at law of the original grantee Jose Lerma. The title exhibited would seem to be rather a second or subsequent copy of the original, but a determination of this question, and the effect to be given a second copy, becomes unimportant in view of the agreed statement of facts. See Escriche, Title Verbo-Instrumento, 891, III.; Houston v. Blythe, 60 Tex. 513, 514; Pasture Co. v. Preston, 65 Tex. 457-459; State v. Cardinas, 47 Tex. 290, 291; Paschal v. Perez, 7 Tex. 360–363; Herndon v. Casiano, Id. 332, 333; Word v. McKinney, 25 Tex. 268, 270. 3. In view of the concession made by defendant's counsel and the admissions of defendant, as embodied in the first, second, third, and fifth findings of fact, the grant to Jose Lerma, for the purpose of this suit, and as between the parties thereto, will be assumed to be a valid grant, as originally extended and confirmed by the Mexican authorities. As to presumptions which may be indulged touching the regularity and validity of the acts of officials under a former government, reference is made to the following authorities: Gonzales v. Ross, 120 U. S. 619, 622, 7 Sup. Ct. Rep. 705; Johns v. Schutz, 47 Tex. 582; Clark v. Hills, 67 Tex. 144, 145, 2 S. W. Rep. 356; Jones v. Muisbach, 26 Tex. 237; Jones v. Garza, 11 Tex. 206-209; Jenkins v. Chambers, 9 Tex. 235; Hancock v. McKinney, 7 Tex. 442, 443; Holliman v. Peebles, 1 Tex. 698-702; Uhl v. Musquez, Tex. Unrep. Cas. 655, 656.

4. The registration in the land-office of the Spanish document styled "testimonio" did not constitute the paper an archive of said office. Paschal v. Perez, 7 Tex. 355-360; Herndon v. Casiano, Id. 333, 334; Rev. St. Tex. arts. 57-59; Hatchett v. Conner, 30 Tex. 110; Dikes v. Miller, 11 Tex. 101, 102. The constitution of 1876 (article 13, § 4) prohibits the deposit of plaintiff's claim of title in the land-office, and it further provides that claims of that class shall not be "recorded in this state, or delineated on the maps, or used as evidence in any of the courts of this state, and the same are stale claims; but this shall not affect such rights or presumptions as arise from actual possession." Under this provision of the constitution the deposit of the paper in the land-office conferred no additional rights upon the plaintiff. It neither enhanced nor diminished the value of his title. The act of depositing it there was simply a nullity, as well as its registration in the records of El Paso county; and a certified copy of such title so deposited in the land-office, or registered in the records of El Paso county, is not admissible in evidence. See foregoing authorities.

5. Plaintiff is not in actual possession of the land embraced in the grant, and has not been, certainly, since 1861; and it is a matter of serious doubt whether his actual possession, such as the law contemplates, did not terminate in 1849 or 1850. The fact that plaintiff or his ancestor may have had cattle wandering over the grant, 50 leagues in extent, would afford no presumption that he owned or claimed it. , ello v. U. S., 18 How. 545; Satterwhite v. Rosser, 61 Tex. 171.

Argu

6. Although the registration of plaintiff's title in the land-office is a nullity, and notwithstanding his want of actual possession of the land, the execution of the title-papers is admitted by the defendant, and they are therefore admissible in evidence without further proof, unless their exclusion should be demanded by article 13, § 4, of the constitution. The grant, being admitted to be a valid grant, is within the protection of the treaty of Guadalupe Hidalgo and the constitution of the United States; and it is not competent for the state to nullify it, as a stale claim, without judicial inquiry, or to prohibit its use as evidence. Treaty of Guadalupe Hidalgo, art. 8, and second clause of the protocol. See Rev. St. D. C., "Relating to Public Treaties," 496, 502; Const. U. S. art. 1, § 10; Const. 14th amend. § 1; Railway Co. v. Locke, 12 S. W. Rep. 80, Sup. Ct. Tex., Austin Term, 1889. See, also, Brownsville v. Cavazos, 100 U. S. 142, 145; Davis v. Gray, 16 Wall. 232; Osborn v. Nicholson, 13 Wall. 656, 662; Gonzales v. Ross, 120 U. S. 629, 7 Sup. Ct. Rep. 705; Walker v. Whitehead, 16 Wall. 317, 318; Vance v. Vance, 108 U. S. 514 et seq., 2 Sup. Ct. Rep. 854; Edwards v. Kearzey, 96 U. S. 595 et seq.; Wolff v. New Orleans, 103 U. S. 367, 368; Grigsby v. Peak, 57 Tex. 147; Cooley, Const. Lim. (5th Ed.) top p. 446, and pp. 453, 454. The title-papers are therefore admissible in evidence.

7. The defendant has not obtained a patent from the state to the land which he seeks to appropriate under the pre-emption laws. The law contemplates the issuance of a patent as the final step towards obtaining the state's title. Rev. St. Tex. art. 3930. The defendant has, therefore, a mere equitable title, originating in 1887, which cannot avail him in a suit at law as against the legal title asserted by the plaintiff. In the language of the supreme court: "In actions of ejectment in the United States courts the strict legal title prevails. If there are equities which would show the right to be in another, these can only be considered on the equity side of the federal courts." Foster v. Mora, 98 U. S. 428; Singleton v. Touchard, 1 Black, 344, 345; Hickey's Lessee v. Stewart, 3 How. 759, 760; Greer v. Mezes, 24 How. 274 et seq.; Steel v. Smelting Co., 106 U. S. 452, 1 Sup. Ct. Rep. 389.

8. Judgment will be rendered in favor of the plaintiff for the recovery of the 160 acres of land sued for and described in his petition, and all costs of suit. The conclusions here announced are expressly limited to the facts of this case as agreed upon by the parties.

In re HERDIC.

(District Court, W. D. Pennsylvania. October 26, 1889.)

BANKRUPTCY-SALE-RESCISSION OF Order of ConFIRMATION-PRACTICE.

After a bankrupt had obtained his discharge, under an order of court made upon the petition of his assignees, a claim of the bankrupt's estate against one R. was sold at public auction, which sale was confirmed by the court, and the proceeds distributed among the creditors. More than four years thereafter, the bankrupt having in the mean time died, a creditor who had participated in the distribution presented a petition setting forth that the purchaser of said claim bought the same in trust for the bankrupt, and that the transaction was a concealed fraud upon the creditors, and praying that the administrator of the bankrupt be required to show cause why said purchase should not be declared fraudulent, and the sale set aside. Held, that the bankrupt court, after the lapse of time, upon a mere rule upon the administrator to show cause, could not proceed in a summary way to rescind the order of confirmation and set aside the sale, but the petitioner's remedy was by a plenary suit.

In Bankruptcy.

Sur petition of the Metropolitan National Bank, and rule on James P. Herdic, administrator of Peter Herdic, deceased, to show cause why the purchase by Frank L. Herdic of a claim against John G. Reading should not be set aside.

Wm. Macrum, for rule.
Wm. S. Stenger, contra.

ACHESON, J. The answer of James P. Herdic, administrator of the estate of Peter Herdic, deceased, to the rule to show cause, etc., raises a question of jurisdiction which was not discussed much, if at all, at the hearing, the arguments of counsel being directed to other questions of law, and to the merits of the controversy, but in the course of my investigation the question of jurisdiction has assumed a controlling importance. The facts upon which it arises are these: Peter Herdic, the bankrupt, was granted a discharge on February 18, 1880. On July 28, 1883, upon the petition of his assignees in bankruptcy, an order was made for the sale at public auction of the claim of the bankrupt's estate against John G. Reading. After due public notice such sale took place, and Frank L. Herdic became the purchaser, for the price of $3,000. By an order of court made September 12, 1883, the sale was confirmed; and soon thereafter the purchase money was distributed among the creditors of the bankrupt, the Metropolitan National Bank, the present petitioner, receiving its pro rata share. Thus the matter rested until May 1, 1888, Peter Herdic having died in the mean time. On the date last mentioned said bank presented its petition, setting forth that the said purchase by Frank L. Herdic was made in trust for Peter Herdic, and that, for reasons set out, it was a concealed fraud upon the bankrupt's creditors, and praying that James P. Herdic, administrator of Peter Herdic, deceased, be required to show cause why the said purchase should not be declared fraudulent, and the sale set aside; and, accordingly, on July 20, 1888, a rule to show cause was granted upon the administrator.

Can the court, sitting in bankruptcy, at this late day, upon a mere

rule on the administrator, proceed in a summary way to rescind its order of confirmation of September 12, 1883, and set aside said sale? This question I am constrained to answer in the negative. According to the general rule, the lapse of time here, of itself, would debar summary relief, and require a resort to a plenary suit. Bronson v. Schulten, 104 U. S. 410; Phillips v. Negley, 117 U. S. 665, 6 Sup. Ct. Rep. 901. Even where a decree in equity is obtained by fraud, the appropriate remedy, after the expiration of the term, is by a bill of review. Terry v. Bank, 92 U. S. 454. If it be conceded that a bankrupt court has power to alter or amend its records until the proceeding is formally ended, still, it by no means follows that, for matters dehors the record, the court may summarily vacate a sale regular on its face, years after final confirmation and the distribution of the proceeds. Again, Peter Herdic was free to purchase at the assignee's sale, (Traer v. Clews, 115 U. S. 528, 6 Sup. Ct. Rep. 155;) and he took the same title that an entire stranger purchasing would have taken. That title has become vested in James P. Herdic, the administrator of the estate of Peter Herdic. The administrator is not a party to the proceedings in bankruptcy, and, therefore, his title. cannot be adjudicated by the bankrupt court upon a rule to show cause. Smith v. Mason, 14 Wall. 419; Marshall v. Knox, 16 Wall. 551. If his title is impeachable for the cause alleged, the remedy is by a plenary suit. Id. This is not a question of convenient practice. The interests here involved are very large,-of such value as to bring the controversy within the appellate jurisdiction of the supreme court. But, under this proceeding, the administrator, in the event of a result adverse to him, would be deprived of his right of appeal to that tribunal. Stickney v. Wilt, 23 Wall. 150; Nimick v. Coleman, 95 U. S. 266. It is worthy of remark that in each of the two cases (Clark v. Clark, 17 How. 315, and Phelps v. McDonald, 99 U. S. 298) here cited to sustain the impeachment of the sale to Frank L. Herdic the complainant proceeded by an original bill in equity; and this, in my judgment, is the proper mode of procedure in the present case. Rule to show cause discharged, without prejudice to the petitioner's right to proceed by a plenary suit.

THE NICANOR..

BRITISH & FOREIGN MARINE INS. Co., Limited, v. THE NICANOR. NEW YORK MUT. INS. Co. v. SAME. PHIPPS et al. v. SAME. UNIVERSAL MARINE INS. Co. v. SAME.

(District Court, S. D. New York. October 24, 1889.)

1. PAYMENTS-VOLUNTARY PAYMENTS.

Payments voluntarily made cannot be recovered back upon grounds which would have constituted a defense, and were known to the plaintiff at the time of payment. 2. SHIPPING-AVERAGE BOND-VOLUNTARY PAYMENTS.

The bark N., having stranded on the Jersey coast, was got off by a wrecking company, whose salvage was fixed by a board of underwriters at $15,000. The

ship's agents, at the master's request, paid the salvors, and the ship afterwards delivered the cargo to the consignees upon their executing an average bond to the ship's agents, describing them as "agents or owners of the vessel," and conditioned to pay them such sums as should be found to be a charge upon the goods. A general average adjustment was afterwards made, and the libelants, as insurers of several of the cargo owners, paid most of the amount charged against them by the adjusters; objecting, however, to any commissions, on the ground that the agents had no authority to advance money on their account. A few days afterwards, the same insurers filed libels to recover back the moneys paid, on the ground that the stranding was caused by negligent navigation: the facts constituting the alleged negligence being known to the libelants a considerable time before their payments were made. Held, that the ship's agents having advanced the money to pay the salvage in their capacity as the agents and representatives of the ship and her owners, and having taken the bond in that capacity, if the stranding was by negligence, such negligence was a defense against any claim upon the average bond, and that the payments made by the libelants, having been made with knowledge of the facts, were voluntary payments, and could not be recovered back.

In Admiralty. Actions to recover for moneys paid for salvage of

cargo.

Butler, Stillman & Hubbard and W. Mynderse, for libelants.
Wing, Shoudy & Putnam, for claimants.

BROWN, J. The above four libels were filed on October 10 and 11, 1889, by the insurers of different portions of the cargo on board the barkentine Nicanor, to recover from the ship the several amounts which the insurers had paid, or, as alleged, were liable to pay, on account of their insured cargo owners, for their proportion of salvage with which the cargo had become chargeable in consequence of the stranding of the Nicanor upon the Jersey coast on the 2d of September, 1889, it being alleged that the stranding occurred solely by the negligence of the vessel. The answers, filed on October 12th, deny the material allegations of the complaint; and the defense, in brief, was-First. That there was no negligence, and that the stranding arose from the effect of an unknown temporary inshore current, caused by previous north-east winds, afterwards hauling to the southward; and also by a single white electric light at the Longport Hotel, on the beach, being mistaken for the fixed white light at Absecom, a few miles to the northward: Second. That the claims of the salyors had been paid and discharged by the ship through advances from her agents; that the payments made by the libelants were made to these agents after the delivery of the cargo to the owners, on the execution of the usual average bond; and that such payments were made voluntarily, with full knowledge of all the facts, in partial settlement of that demand; and that no action, under such circumstances, would lie to recover back moneys thus voluntarily paid, even if the stranding was caused by negligence.

The vessel having been arrested by the marshal, and being in custody, the causes were brought to an immediate hearing. On the trial, it appearing that no payment on account of salvage had been made by the second libelant above named, the New York Mutual, that action was discontinued. The causes have been submitted on the proofs taken in the other three cases.

From the pleadings and proofs it appears that the Nicanor, loaded chiefly with hides and wool, bound from Montevideo to New York,