Q. If you had had any knowledge or information that the road did not have the title would you have bought these lands?

A. No, sir; I most assuredly would not.

Q. Did you know or had you heard at the time you bought these lands that land grant lands were involved or the title of the railroad, by any decision of the Department?

A. No, sir; but I learned soon afterwards though.

In support of his contention that a "holder under a quit claim deed can not claim as a bona fide purchaser," counsel for Stebbins cites the case of Baker v. Humphrey (101 U. S., 494).

The material facts in that case are these. Scott conveyed the premises to Chapman, taking from him a mortgage for the amount of the purchase money, $3,500. Chapman did not take possession of the premises. Scott afterwards assigned the mortgage to Sammons. Sammons conveyed the premises, with warranty to Belote. From Belote there was a regular sequence of conveyance down to Baker, the complainant. Chapman lived near the property for years and knew that Sammons and others were in adverse possession and claimed title but never claimed or intimated that he had any title himself. Baker entered into a contract with Hurd and Smith to sell and convey the premises to them for the sum of $8,000. Baker employed Wells S. Humphrey, an attor ney, to draw the contract. Hurd and Smith took possession under the contract, and employed the same attorney Humphrey, to procure an abstract of title, who in examining the title found there was no deed from Chapman. He therefore sought out Chapman and by representing to him that the object was to protect the title of clients, procured Chapman to execute a quit claim deed of the premises to George P. Humphrey, a brother of the attorney, for the sum of $25. George P. Humphrey, the grantee, knew nothing of the transaction until some time afterwards. An action of ejectment was instituted in his name to recover the property. Baker tendered him $25, the amount he had paid for the deed and offered to pay any expense incurred in his procuring it and demanded a release. He declined to accept or convey. The prayer in the bill was, that the deed to George P. Humphrey be decreed to be fraudulent, and to stand for the benefit of Baker.

It was with these facts before it that the supreme court, speaking through Justice Swayne, used the following language:

Chapman conveyed by a deed of quit-claim to the attorney's brother. The attorney procured the deed to be so made. It was the same thing in the view of the law as if it had been made to the attorney himself. Neither of them was in any sense a bona fide purchaser. No one taking a quit-claim deed can stand in that relation May v. Le Claire (11 Wallace, 217).

It will be observed that the court held that the deed which was procured by the person who held the position of confidential attorney both to the grantor, and to the party for whose benefit the deed was represented to have been made, although in the name of his brother, was the same as though it had been made in his own name, and it was well said

that he was not a bona fide purchaser, and the further statement that, "No one taking a quit-claim deed can stand in that relation," was certainly true as applied to this transaction; but is there good reason to think that this detached sentence was adopted by the court as an unqualified legal proposition? The authority cited by the Associate Justice in support of the proposition announced was May v. Le Claire (11) Wallace, 217), and in said case the decision of the court was announced by the same justice nine years before.

In this case the court say:

On the 27th of July, 1859, Dessaint conveyed by a deed of quit-claim to Ebenezer Cook. The evidence satisfies us that Cook had full notice of the frauds of Powers and of the infirmities of Dessaint's title. Whether this were so or not, having acquired his title by a quit-claim deed, he cannot be regarded as a bona fide purchaser without notice. In such cases the conveyance passed the title as the grantor held it, and the grantee takes only what the grantor could lawfully convey. Cook occupied the same relations to the property as Dessaint, his grantor.

The authority cited for this proposition was Oliver v. Piatt et al. (3) Howard, 363), and we must turn to that case as the foundation for these decisions. The unanimous opinion of the court, in the last cited case, was announced by Justice Story with that clearness of statement, and careful regard for the meaning of words and of phrases, which so distinguish the writings of that profound jurist.

The material facts which led up to the discussion are these: Williams, who had purchased certain premises by quit-claim deeds from Oliver, alleged that he (Williams) was a bona fide purchaser for a valuable consideration without notice. The court found that Oliver held the premises in question in trust for others, and that if Williams did not actually know this fact (which was more than probable) that he was, from the knowledge he did possess, put upon inquiry in relation to the matter; the court say:

And the only reasonable conclusion seems to be that he was in as full possession of all the facts as were his partners, Oliver and Baum. Another significant circumstance is, that this very agreement contained a stipulation that Oliver should give a quit-claim deed only for the tracts; and the subsequent deeds given by Oliver to him accordingly, were drawn up without any covenants of warranty, except against persons claiming under Oliver, or his heirs and assigns. In legal effect, therefore, they did convey no more than Oliver's right, title and interest in the property; and under such circumstances, it is difficult to conceive how he can claim protection as a bona fide purchaser, for a valuable consideration, without notice against any title paramount to that of Oliver, which attached itself as an unextinguished trust to the tracts.

I am clearly of the opinion that the true doctrine on this point is thus clearly stated by Justice Story, and in effect, followed in the case of May v. Le Claire, supra.

One who holds under a quitclaim deed, takes all the interest his grantor had, and may be a bona fide purchaser, as against all who do not claim by a title paramount to that of his grantor. This definition

is, I think, fully sustained by the language of the court in the case of Dickerson v. Colgrove (100 U. S., 578), in which it is said:-

Chauncy conveyed to the plaintiff in error by deed of quitclaim. He is not, therefore, a bona fide purchaser. Morton and the defendants were in possession. For both these reasons, he took whatever title he acquired subject to all the rights, legal and equitable, of Morton and of the defendants who deraigned their titles from the latter.

Applying this rule to the case at bar, we find that Croke took all the interest of Bissell; that no one claims by any title paramount to that of Bissell; that in the absence of the provision contained in the act of March 3, 1887, neither Bissell nor Croke can claim any right or title to the land, but by the provisions of that act, Bissell (who was without the shadow of a question a bona fide purchaser from the railroad company), or his grantee, Croke, has the right to purchase the land in question in the absence of an adverse right created by statute, and no such adverse right exists in the present instance.

The homestead claim of Stebbins was not initiated until April 4, 1889, hence he is not protected by the second proviso of the fifth section of the act of March 3, 1887, (Chicago, St. Paul, Minneapolis and Omaha Railway Company, 11 L. D., 607).

It was evidently the intention of Congress, by the act of March 3, 1887, to protect those parties who had, in good faith, purchased land of the railroad company believing that the company had, by virtue of the grant made by Congress, the right to sell said land.

All of the lands embraced within the provisions of the act, were lands to which adverse claims existed at the time the grant took effect and were therefore excepted from the operation of the grant, and the railroad company had no right to sell the same, it had no title to convey; hence if we apply the strict rule of caveat emptor, if we hold that in order to be a bona fide purchaser one must have made due inquiry as to the validity of the title of the company to the tract sold which inquiry carried to its full extent would have disclosed the fact that the tract sold was exempted from the grant and did not pass to the company, we must hold, as a logical result of the contention, that there could be no such one as a bona fide purchaser. Such a result would be equivalent to asserting that the act of March 3, 1887, was an absurdity, and without meaning. This can not be assumed. On the contrary, it must be assumed that Congress intended to accomplish what a fair and reasonable interpretation of its language will accomplish, viz., the protection of those, who had in good faith, paid their money for a title which they believed to be good. In the case at bar I think there can be no question as to the right of Bissell to purchase under the act. But is there anything to indicate that it was the intention of Congress that the right to purchase must be confined to the one who had origi nally purchased from the company?

The use of the words heirs and assigns clearly negatives such an idea.

It was the intention that one who stood in the place of the original purchaser, either by heirship or by assignment, should have the same right.

After a very full and careful consideration of the case, I am of the opinion that your decision is correct and the same is affirmed, and the papers in the case are herewith returned.

TOWN SITE PLAT-SECTION 22, ACT OF MAY 2, 1890.

CANADA H. THOMPSON ET AL.

A townsite plat submitted for approval under the second proviso to section 22, act of May 2, 1890, should show accurately the size of all lots, the width of streets and alleys, the correct measurement and location of parks and reservations, and the exterior boundaries should be indicated in conformity with the lines of the public survey.

In case of an addition to a townsite the streets must conform to the streets already established, and this fact must be stated in the surveyor's affidavit.

Acting Secretary Chandler to the Commissioner of the General Land Office, May 9, 1892.

I am in receipt of your letter of March 24, 1892, transmitting plats in triplicate filed by Canada H. Thompson and Jacob U. Shade, showing a portion of the public domain which each one applied to enter as a portion of the townsite of Hennessey, Oklahoma, under the provisions of the second proviso to section 22 of the act of May 2, 1890, entitled "An act to provide a temporary government for the Territory of Oklahoma, etc. Also the evidence filed in support of their respective applications.

You recommend that the plats be approved.

The evidence filed in support of the application, appears to be suffi cient, but in my opinion, neither of the plats is correct.

It is of the utmost importance that all plats of townsites or portions of townsites, should be strictly correct and accurate. The size of each and every lot should be stated, and if the lot is irregular in shape, the width at each end should be indicated; the width of each street and alley should be marked, and the correct measurement of the reservations and parks indicated; the exterior boundaries should be indicated and said boundaries must conform to the lines of the public surveys.

The plats before me are more or less defective in all the above mentioned particulars.

Whenever an addition is made to a town already in existence, as in the present instance, the streets must conform to the streets already established, and this must be stated in the affidavit of the surveyor. The affidavit of the surveyor should also contain a statement of what

tract of land is surveyed as the townsite or portion of the townsite, also that the tract reserved as a public park, contains the requisite amount of land. In a word, the affidavit of the surveyor should contain a full, correct and intelligent statement of what is shown on the plat.

The affidavit of the party applying to make the entry should embrace the statement that the application to enter the described tract of land as the townsite, or as a portion of, or addition to, the townsite of is made under the provisions of the second proviso to section 22 of the act of May 2, 1892, entitled "An act to provide a temporary government for the territory of Oklahoma," etc., that all streets, alleys, parks and reservations are dedicated to public use and benefit, and that the plat is correct according to the survey made by the proper surveyor.

The plats in question are herewith returned to be corrected as above indicated, and you will inform the local officers of the requirements necessary in plats to be filed in the future.

LAMB v. SHERMAN.

Motion for the review of departmental decision of September 3, 1891, 13 L. D., 289, denied by Secretary Noble, May 9, 1892.

LOCAL OFFICE-CONTEST-SIMULTANEOUS APPLICATIONS.

NICHOLS ET AL. v. DARROCH.

No rights are acquired under an affidavit of contest presented while the local office is closed for the transaction of all business requiring the joint action of the officers.

The right to proceed against an entry should be awarded to the highest bidder where two applications for such privilege are filed simultaneously.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, May 10, 1892.

I have examined the appeals by Josephine Nichols and Michael J. Barrett from your decision of February 6, 1891, holding that the right to contest the timber-culture entry of Johnson K. Darroch for the SW. Sec. 14, T. 140 N., R. 64 W., Fargo, North Dakota, should be awarded to the highest bidder.

It appears that the contest of Mrs. Nichols was first presented June 4, 1890, but no business was then transacted, because the register had been directed to keep office open for information only, and to transact no business requiring the joint action of both officers, the receiver hav ing become insane. On July 28, 1890, when the office was again opened for business, the affidavit was again presented, simultaneously with the