ties on the question in the Federal courts, and against the whole spirit and policy of our land laws. It refers to the different sections of the pre-emption act of 1841, but takes no notice of the judicial construction of the act to which I have referred, in favor of the rights of the settler under that act. It cites, in support of the points affirmed, sundry opinions of Attorneys General, and decisions of state courts, which at best are not binding and conclusive authorities in this court; while it fails to discuss or scarcely to refer to the strong cases decided in the Federal courts in favor of an opposite interpretation of the right of pre-emption, and especially the case of Lytle v. Arkansas. The facts of the case of Frisbie v. Whitney are very peculiar also; and I cannot, therefore, hold the claim of Hutchings as conclusively settled adversely by that single case. On the contrary, I submit that the legal right is in his favor, on a fair construction of the act of Congress of 1841 and the authorities I have cited, and that the court below erred in its judgment against the plaintiff in error; which judgment he prays may be reversed. Mr. Edmond L. Goold, for defendant in error: tion and improvement of the premises or the By the same act, Congress also granted to At the first session of the legislature of California subsequently held, an act was passed by which the state accepted the grant thus made of the Yosemite Valley, or Big Tree Grove, upon "the conditions, reservations and stipulations" contained in the act of Congress, and the governor and eight commissioners who had previously been appointed by him during the recess of the legislature, were constituted a board of commissioners "with full power to manage and administer the grant made and the If this question were an original one, and had not been already definitely and finally settled by this court, it might be thought necessary to discuss it on behalf of the defendants in error; but a reference to the case of Frisbie v. Whit-trust created by the act of Congress," and to ney, disposes of the question upon authority, and it is superfluous to add anything by way of argument to the views advanced in that case, and which have controlled the supreme courts of the different states since that opinion was delivered. That case has been followed in California by the cases of Hutton v. Frisbie, Cal. 475; Low v. Hutchings, 41 Cal. 634; Marquez v. Frisbie, 41 Cal. 624; and by the cases of Faustin v. Frisbie, Luhr v. Frisbie, decided at the last October Term of that court, but not vet reported. make rules and regulations for the government, improvement and preservation of the premises. The act also provided for the appointment by the commissioners of a guardian of the premises, and made it a penal offense in anyone to commit wilfully any trespass there37on, to cut down or girdle the trees, to deface or injure the natural objects, to fire the wood or grass, or to destroy or injure any bridge or structure thereon, or other improvement. On the 19th of May, 1864, six weeks previous to the passage of the act of Congress making a grant to the state, the defendant, Hutchings, entered the Valley of the Yosemite and settled upon lands therein, with the intention, according to his declaration, and which from the findings of the court we must suppose to have act The rule may be regarded, then, as established, that the settlement by a pre-emptioner upon the public lands after survey, and a compliance by him with all the requisite formalities prior to payment, vests no right which restricts, to any extent whatever, the absolute power of Con-ually existed, to acquire the title to the same, gress to dispose of the land by sale or donation. It seems quite clear that any other rule would result often in serious embarrassment to the government. In this case the land had not been surveyed, and the claim of plaintiff in error has, therefore, even less color of equity. Mr. Justice Field delivered the opinion of the court: under the pre-emption laws of the United States. On the 30th of June, 1864, Congress passed an act granting to the state of California the Yet, from this settlement and declared intencleft or gorge in the Sierra Nevada mountains tion, he asserted and still asserts that he acsituated in the county of Mariposa in that state, quired such a vested interest in the premises to known as the Yosemite Valley, with its branches the extent of one hundred and sixty acres, that and spurs, in estimated length fifteen miles, and the United States could not transfer their title in width one mile, with the stipulation that the to the state, or dedicate the land to any public state should accept the grant under the express use; and therefore refused to surrender the poscondition that the premises should be held for session to the commissioners appointed by the public use, resort and recreation, and should be state (the defendant also refused to take a lease inalienable, for all time, except that leases for from the commissioners, though offered to him portions of the premises for periods not exceed at a mere nominal rate for ten years). They acing ten years might be made, the income de-cordingly brought the present action. The dis rived therefrom to be expended in the preserva- trict court of the state adjudged that Hutch ings was right in his view of his interest, and other disposition of the lands before they are accordingly gave judgment in his favor. The offered for sale, or to appropriate them to any supreme court of the state was of opinion that public uses. a vested right in the lands of the United States 88*] The decision in Frisbie v. Whitney was was not thus acqui-ud, and reversed the judg-pronounced by a unanimous court, and subsement, and ordered judgment for the possession of the premises in favor of the commissioners. The defendant now brings the case here for our review. quent reflection has satisfied us of its entire soundness. The construction there given to the pre-emption law is, as there stated, in accordance with the construction uniformly given by that The simple question thus presented for de- department of the government, to which the termination is whether a party, by mere settle- administration of the land laws is confided, and ment upon lands of the United States, with a by the chief law officers of the government to declared intention to obtain a title to the same whom that department has applied for advice under the pre-emption laws, does thereby ac- on the subject. It is the only construction quire such a vested interest in the premises as which preserves a wise control in the govern to deprive Congress of the power to devest it ment over the public lands, and prevents a genby a grant to another party. If such be the eral spoliation of them under the pretense of effect of mere settlement, with a view to pre- intended settlement and pre-emption. The setemption, upon the power of Congress to grant tler being under no obligation to continue his the lands occupied to another party, it must settlement and acquire the title, would find the operate equally to deprive Congress of the doctrine advanced by the defendant, if it could power to reserve such lands from sale for pub- be maintained, that he was possessed by his setlic uses of the United States, though needed tlement of an interest beyond the control of the for arsenals, fortifications, light-houses, hospi-government, a convenient protection for any tals, custom-houses, court-houses, or for any trespass and waste, in the destruction of timber other of the numerous public purposes for or removal of ores, which he might think proper which property is used by the government. It to commit during his occupation of the premises. 87*] would require very clear *language in the acts of Congress before any intention thus to place the public lands of the United States beyond its control by mere settlement of a party, with a declared intention to purchase, could be attributed to its legislation. some The argument of the defendant's counsel, and his criticism upon the decision in Frisbie v Whitney, supra, are founded upon a misapprehension of the language used in previous opinions of this court, and particularly of language used in the opinion in the case of. Lytle v. Arkansas, 9 How. 333. This last case and the language there used did not escape the attention of the court in the con equitable right was protected, had acquired a vested right by action of the land officers, and payment and acceptance of the price [*89 of the land, which those officers had disregarded; and that in the other cases the successful party had established his legal right of preference of purchase over others under existing law; and that in these particulars those cases were widely different from that of Frisbie v. Whitney. The question here presented was before this court, and was carefully considered, in the case of Frisbie v. Whitney, 9 Wall. 187, 19 L. ed. 668. And it was there held that under the pre-sideration of Frisbie v. Whitney. That and emption laws mere occupation and improvement other cases, in which the equitable rights of of any portion of the public lands of the United persons claiming under the pre-emption laws States, with a view to pre-emption, do not con- had been protected against the legal title acfer upon the settler any right in the land occu- quired by others in disregard of their rights, pied, as against the United States, or impair in were cited by counsel and commented upon on any respect the power of Congress to dispose of the argument, as asserting principles inconsistthe land in any way it may deem proper; and ent with the construction of those laws given that the power of regulation and disposition, by the court. But the court, without examinconferred upon Congress by the Constitution, ing in the opinion the cases cited in detail, statonly ceases when all the preliminary acts pre-ed that in nearly all of them the party, whose scribed by those laws for the acquisition of the title, including the payment of the price of the land, have been performed by the settler. When these prerequisites have been complied with, the settler for the first times acquires a vested interest in the premises occupied by him, of which he cannot be subsequently deprived. He is then entitled to a certificate of entry from the local land officers, and ultimately to a patent for the land from the United States. Until such payment and entry the acts of Congress But inasmuch as counsel of the defendant,† give to the settler only a privilege of pre-emp- who appeared also as one of the counsel in this tion in case the lands are offered for sale in the last case, again urges upon our attention the usual manner; that is, the privilege to purchase case of Lytle v. Arkansas, and contends with them in that event in preference to others. The much earnestness that it sustains principles in United States by those acts enter into no con- conflict with those expressed in Frisbie v. Whittract with the settler, and incur no obligation ney, and also settles the case at bar in favor of to anyone that the land occupied by him shall the defendant, we are induced to state at some ever be put up for sale. They simply declare length what that case was, and what it actually that in case any of their lands are thrown open decided. In that case a pre-emptioner by the for sale the privilege to purchase them in lim-name of Cloyes claimed a right to make an enited quantities, at fixed prices, shall be first given to parties who have settled upon and improved them. The legislation thus adopted for the benefit of settlers was not intended to deprive Congress of the power to make any try of certain lands under the act of Congress 1.- Mr. Julian's name is printed as one of the counsel to the brief filed for the defendant in Frisbie v. Whitney [19 L. ed. 668], though his name is not given in the report of the case in 9th Wallace, he not having participated in the oral argument. the surveys being returned, he could do nothing more than to offer to enter the land, which the register would not permit him to do. This claim for pre-emption stands before us in a light not not less favorable than it would if Cloyes or his representatives had been permitted by the land officers to do what in this respect was offered to be done." There is no question about the correctness of the doctrine here announced; it is only a familiar principle which is stated, that where one offers to do everything upon which the acquisition of a right depends, and is prevented by fault of the other side, his right shall not be lost by his failure. of May 29th, 1830. The act gave to every occupant of the public lands prior to its date, who had cultivated any part thereof in the year 1829, a right to enter at the minimum price, by legal subdivisions, any number of acres not exceed ing one hundred and sixty, including his improvements, provided the land was not reserved for the use of the United States, or either of the several states. It required, before any entries could be made, that proof of settlement or improvement by the claimant should be made to the satisfaction of the register and receiver of the land district, pursuant to rules prescribed by the commissioner of the general land of fice. Under rules thus prescribed, proof was made of the cultivation and improvement of The principle only applies where, by law or Cloyes which was satisfactory to the register and contract, the acquisition of a right is made dereceiver, and payment of the price was offered pendent upon the performance of certain speciby him. Those officers held that he was en-fied acts. There can be no such thing as the actitled to enter one of the fractional sections quisition of a right of pre-emption; that is, of claimed, the one upon which his improvement a right to be preferred in the purchase of propwas made, and not the others, and issued a cer- erty of the United States, until such property tificate to him to that effect. The plats of the is open for sale. In the case from Arkansas the 90*] township where the land was situated not law of 1830 authorized the entry and sale of the having been furnished by the surveyor general, land to the occupants and cultivators; it preas required, the formal entry with the regis-scribed certain things to be done to entitle them ter could not be made, but in lieu thereof, un- to purchase; these things were done, or would der instructions of the commissioner of the gen-have been done by Cloyes if the officers of the eral office, proof identifying the land claimed was allowed to be filed. The act of 1830 expired in one year, and the public surveys of the land were not completed until December, 1833, and were not returned to the land office until the beginning of 1834. Cloyes had thus done all that he could do to perfect his right to the title of the United States under a law which opened the land for sale in limited quantities, at specified prices, to its occupants and cultivators. Subsequently, in July, 1832, Congress passed an act giving to parties entitled to pre-emption under the act of 1830 one year from the time when the township plats should be returned, to enter the lands. Under this act the heirs of Cloyes, he having died, made payment to the receiver for the fractional section to which his pre-emption claim was allowed in 1830, as already stated, and also for the fractional sections to which his claim was rejected, and applied to the register to enter them, but that officer refused to allow the entry. The court held that, so far as the fractional quarter section to which the claim was allowed by the register and receiver in 1830 was concerned, the refusal did not affect the right of the claimant. And it is with respect to the inability of Cloyes to make the entry in 1830 for want of the township plats which the surveyor general had failed to return, and the refusal of the register to allow the entry subsequently under the act of 1832, that the language cited by counsel was used by the court, namely: that, "It is a well-established principle that when an individual, in the prosecution of a right, does everything which the law requires him to do, and he fails to obtain his right by the misconduct or neglect of a puble officer, the law will protect him. In this case the pre-emption right of Cloyes having been proved, and an offer to pay the money for the land claimed by him, under the act of 1830, nothing more could be done by him, and nothing more could be required of him under that act. 91*] And subsequently, when he paid the money to the receiver, under subsequent acts, government, appointed to aid in their performance, had not failed in their duty. The hindrance to the complete performance of everything required of the claimant could not impair his rights. And it was immediately after affirming the validity of his claim, notwithstanding this hindrance, that the court used the language upon which so much stress is placed by the defendant's counsel, to the effect that a claim of pre-emption is not a "shadowy right," but when covered by the law is a legal right, subject to be defeated only by a failure to perform the conditions annexed to it. This language was undoubtedly correct as applied to the claim of Cloyes, as then situated, which gave occasion to it, and it is in a general sense correct as applied to every claim of pre-emption. Such claim, it must be remembered, is only a claim to be preferred in the purchase of lands of the United States in limited quantities, at fixed prices, when the lands are [*92 offered for sale in the usual manner. When one has acquired this claim by complying with the conditions of the law for its acquisition he has a legal right to be thus preferred, when the sale is made, as against others asserting a similar right under the law, which the court will enforce in proper cases. But the claim of preemption, as already said, can never arise when the law does not provide for a sale of the property. Until thus sanctioned by the law the claim, as stated by the court in that case, has no existence as a substantive right. There is nothing in the case of the defendant which is at all analogous to that of Cloyes. Here the land occupied by the defendant was never offered for sale, but was excluded from any possible sale by appropriation to perpetual public use, resort, and recreation. Nothing was, therefore, required or could be required of the defendant for the acquisition of the title, and nothing could be or was done by him to that end. In the case from Arkansas, the right of Cloyes had been defeated by the failure of the executive officers to perform their duty under right to the land occupied by him as against the law, he having complied fully with its pro-941 the owner, the United States; *and the visions, except so far as he was prevented by acquisition by him of a legal right as against such failure, and having thus acquired a right other parties to be preferred in its purchase, to the title of the government. In the present when the United States have determined to sell. case no default on the part of the executive of- It seems to us little less than absurd to say ficers is alleged or pretended. The ground of that a settler or any other person by acquiring complaint is that the defendant could not ac- a right to be preferred in the purchase of propquire the title under the pre-emption laws, be- erty, provided a sale is made by the owner, cause Congress had granted the land to the thereby acquires a right to compel the owner to state and thus withdrawn it from sale. In the sell, or such an interest in the property as to one case it is the action of the executive officers deprive the owner of the power to control its which is the ground of complaint; in the other disposition. it is the action of Congress. The act of California of February, 1868, attempting to grant the premises in controversy to the defendant is, by its own terms, inoperative until ratified by Congress. No such ratification has ever been made, and it is not believed that Congress will ever sanction such a perversion of the trust solemnly accepted by the state. The court cannot assume, and then found a decree upon the truth of the assumption, that the defendant would have complied with the provisions of the pre-emption laws, had Congress never made the grant. Nor could it make any such assumption, even if it were held that those laws surrendered unconditionally the entire public lands to settlers, instead of allowing to them the privilege of pre-emption provided the lands are offered for sale in the usual GEORGE FRED. MCLELLAN et al., Appts., manner. Judgment affirmed. v. RILEY A. SHINN et al. 105-111.) (See S. C. “Morgan's Assignees v. Shinn," 15 Wall. Bill of sale, when mortgage-parol evidencemortgagee of vessel, when not liable for repairs. terms may be shown by parol evidence to be only a 1. A bill of sale of a vessel, absolute in its mortgage. for a loan. 93*] *In June, 1832, Congress passed an act granting to the territory of Arkansas one thousand acres of land contiguous to and adjoining the town of Little Rock, for the erection of a courthouse and jail. The grant was not of any specific tract, but only of a specified quantity to be selected by the governor. Previous to the selection by him and previous to the grant, Cloyes had acquired a right, as already stated, to the title of the government. This was a 2. The facts that the bill of sale was recorded; vested right, and the court very properly held that the vessel was eurolled in the name of the that Congress, in making the grant to Arkan-out in his name as owner, and that no note or bond transferee; that a policy of insurance was taken sas, did not intend to impair vested rights, and was taken by him,-will not overcome positive evithat the grant must be so construed as not to dence that the bill was taken as a mere security interfere with the pre-emption of Cloyes. No other ruling would have been consistent with settled principles. Had the lands in the Yosemite Valley been open for sale, and had Hutchings acquired a right to the title of the United States by complying with all the conditions upon which the acquisition of that titleAPPEAL from the Supreme Court of the Dfsdepended before the grant to the state, his position would have some analogy to that of Cloyes. His right to the title would then have been a vested right, and the grant to the state would have been construed so as not to interfere with his pre-emption. But his declarations as to what he would have done had the land not been withdrawn by Congress from the operation of the pre-emption laws are unavailing for any purpose. The case of Lytle v. Arkansas, supra, is confessedly the strongest case which counsel can cite in support of the anomalous views advanced by him. It is manifest from the statement we have made of the facts of that case, that neither the case itself nor the language used in the opinion of the court, when considered in connection with the facts, give the slightest countenance to those views, but that the decision of the court and the doctrines ex 3. A mortgagee of an interest in a vessel, not in his possession, is under no obligation to contribute for repairs which he did not order. The ship's agents are not his agents, and they act under no authority from him. And it makes no difference though the vessel be registered in his name. of Columbia. The bill in this case was filed in the court below by the appellants, to obtain contribution from the respondents as part owners, for_certain repairs and expenses of the steamer Fairfax. A decree having been entered in favor of the plaintiffs in said court, but reversed upon appeal, by the general term of the said court, the plaintiffs appealed to this court. The case is fully stated in the opinion of the court. Messrs. J. M. Carlisle and J. D. McPherson, for appellants: The court erred in dismissing the bill, whether the defendant, Shinn, was part owner or merely mortgagee. 1. If the defendant was mortgagee, he was a mortgagee in possession. Having derived his interest from a part owner, the possession of the other part owners was his possession. "Upon the sale of a ship in port, delivery of possession is requisite to make the title perfect. . . . The same rule exists in the case of pressed in the opinion are in entire harmony with the principles announced in Frisbie v. Whitney, supra. The whole difficulty in the argument of the defendant's counsel arises from Headnotes by Mr. Justice STRONG. his confounding the distinction made in all the NOTE.-Parol evidence admissible to show deed cases whenever necessary for their decision, be-absolute on its face, a mortgage-see note to Hughes v. Edwards, 6 L. ed. U. S. 142; and note tween the acquisition by the settler of a legal to Conway v. Alexander, 3 L. ed. U. S. 321. SUPREME COURT OF THE UNITED STATES. 3 Kent, 134, part 5, § 45, and numerous cases there cited; 1 Pars. Mar. L. 112; Flanders v. Merritt, 3 Barb. 201. But in truth the sale was absolute. DEC. TERM, The the mortgage of a ship; but where a sale is by gan, Rhinehart & Co., against Riley A. Shinn, a part owner, it is similar to the sale of a ship to enforce contribution to the repayment of adat sea, and actual delivery cannot take place. vances made by their assignors for the repairs Delivery of the muniments of title will be suffi and expenses of the steamer Fairfax. In Sepcient, unless the part owner be himself in ac-tember, 1855, Morgan, Comstock, Kelly, and tual possession." 3 Kent, Com. 132, part 5, § 45. Savage became joint owners of the vessel by Kelly was not in actual possession. 2. As mortgagee in possession he was liable. enrolled in their names as joint owners, on or purchase from the government, and she was re"The weight of our American decisions has about the 10th of October of that year. been in favor of the position that a mortgagee shares of Morgan and of Comstock were held of a ship out of possession is not liable for repairs or necessaries procured on order of the firm composed of those two persons and George for the benefit of Morgan, Rhinehart & Co., a master, and not on the particular credit of the Rhinehart. The firm was also the ship's husmortgagee who was not in the receipt of the band, and as such they made advances for refreight, though the rule is otherwise when the pairs and expenses. Their assignees now claim mortgagee is in possession and the vessel employed in his service." that on the 2d of October, 1865, the defendant, purchase of Kelly's interest therein, and that Shinn, became a part owner of the vessel by share of the advances. This is the whole case he thereby became liable for a proportionate Shinn was in fact such a part owner. His anas presented, and the real question is whether the principal evidence to sustain the averment swer denies the averment of his ownership, and is a bill of sale of one fourth of the vessel from Kelly to Shinn, dated October 2, 1865. If that stood unexplained, it would be sufficient. But proved, that the bill of sale, though absolute in it is asserted in the answer, and we think it is its terms, was in fact a mortgage given to secure Shinn for a sum of money agreed to be timony of Shinn himself, and he is confirmed lent by him to Kelly. Such is the positive tesby the other evidence in the case. The scrivener who prepared the instrument testifies that, on or about the day of date of the bill of sale, both parties to it called at his office; that they stated Kelly wished to purchase an interest in The fact that the bill of sale was intended | vance the necessary money. Some conversation a steamer, and that Shinn was willing to adonly as security may be shown by parol, for then occurred respecting the security which the purpose of negativing authority to bind. should be taken by Mr. Shinn, and it was sug Howard v. Odell, supra; Blanchard v. Fear-gested by one of the parties that a regular bill! ing, 4 Allen, 118. Messrs. Charles M. Matthews and W. D. Davidge, for appellees: It is not enough to bind a party that he holds a bill of sale and is registered as owner. The bill of sale may be a mortgage, as here, and the registry, even if prima facie, is but slight evidence of liability. Myers v. Willis, 17 C. B. 77;8. C. 18 C. B. 886; Brodie v. Howard, 17 C. B. 109; Hackwood v. Lyall, 17 C. B. 124; Coll. Part. § 1235; 3 Kent, Com. 135 and notes. One who has taken a bill of sale of a vessel, absolute in terms, but intended only as security for a debt, and has never taken her into his possession or control nor held himself out to the world as an owner, is not liable for supplies or repairs, although the vessel is registered in his name. Howard v. Odell, 1 Allen, 85. It is contended in the brief of appellants, that Shinn was mortgagee in possession. But in fact he never took possession nor interfered in any manner with the vessel. The possession, to bind a mortgagee, is not the technical possession referred to; but where the mortgagee exercises the rights of owner, intending to take the risks and reap the benefits. Myers v. Willis, 17 C. B. 77, and other cases supra. An intention to mortgage may be manifested either by a written defeasance executed simultaneously with the deed, or by the acts and parol declarations of the parties. Cases above cited; Morris v. Nixon, 1 How. 126; Russell v. Southard, 12 How. 147; Babcock v. Wyman, 19 How. 299, 15 L. ed. 648; Taylor v. Luther, 2 Sumn. 233; Walton v. Cronly, 14 Wend. 67. The absence of the personal obligation of the grantor to repay the money does not make the conveyance any less a mortgage, if the relation of debtor and creditor exist. Rich v. Doane, 35 Vt. 128; Brown v. Dewey, 1 Sandf. Ch. 57; Russell v. Southard, 12 How. 152. Mr. Justice Strong delivered the opinion of the court: This was a bill filed by the assignees of Mor88 bill was accordingly prepared, together with a of sale should be given to him by Kelly. The. power of attorney from Kelly to Shinn, em-powering him to receive all money due, or that: might become due to Kelly in the District of Columbia, and to attend to all matters in which Kelly might have an interest or concern.. The amount of the consideration was left blank might be required to be advanced. All this is in the bill, for it was not then known how much tends directly to establish that the bill of sale in harmony with the testimony of Shinn, and it was intended by the parties to be only a security. at the same time with the bill is also signifiThe fact that a power of attorney was given cant. which might become due to him in the District Why empower Shinn to collect money of Columbia, and to attend to his interests, if vessel? There is no evidence that he had any Kelly then parted with all his ownership in the other interests in the District, and he was a resident of Philadelphia. The testimony of dicted. It is true the bill of sale was recorded Shinn and the scrivener is entirely uncontraat the instance of Shinn; but that was necestransfer. It is true also that the vessel was resary, whether it was a security or an absolute having sworn that Shinn was then the owner of enrolled on the 23d of October, 1865 (Morgan |