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the matter while it was pending and undetermined in the land department. The trial court sustained this last contention of the plaintiff, and on that ground, and no other, granted a new trial.

The mere fact that the defendant took possession of the land believing that the title thereto was in the United States, and intending by his possession to secure it by virtue of a homestead entry, would not prevent his possession from being adverse as against the plaintiff within the legal meaning of the term: Northern Pac. Ry. Co. v. Townsend, 84 Minn. 152, 87 Am. St. Rep. 342, 86 N. W. 1007. And we assume, for the purposes of this appeal only, that the plaintiff, by virtue of the congressional land grant, the completion of its railway, and the filing of the certificate of that fact, acquired such a title to the land in question that it could at all times thereafter have maintained an action to recover the possession thereof, unless the litigation and proceedings in the land department operated to suspend its right to maintain such an action; and we come directly to the consideration of the question of the effect of such proceedings on the respective rights of the parties hereto.

Whenever a person is prevented from exercising his legal remedy by some paramount authority, the time during which he is thus prevented is not to be counted against him in determining whether the statute of limitation has barred his right, even though the statute makes no specific exception in his favor in such cases: Braun v. Sauerwein, 10 Wall. 218; 19 Am. & Eng Ency. of Law, 2d ed., 216. It is also well settled that the courts have no right to invade the functions confided by law to other departments of the government, and interfere with the discharge of their duties in matters exclusively intrusted to their determination, so long as such matters are pending and undetermined.

121 The law, in the absence of some specific provision to the contrary in particular grants, commits in the first instance, within the meaning of this rule, all matters affecting the disposition of public lands of the United States, and the adjustment of all private claims thereto and grants thereof under the legislation of Congress, to the general land office, under the supervision of the Secretary of the Interior: Winona & St. Peter Land Co. v. Ebilcisor, 52 Minn. 312, 54 N. W. 91; McHenry v. Nygaard, 72 Minn. 2, 74 N. W. 1106; Johnson v. Towsley, 13 Wall. 72; Marquez v. Frisbie, 101 U. S. 473,

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Barden v. Northern Pac. Ry. Co., 154 U. S. 288, 14 Sup. Ct. Rep. 1030; Catholic Bishop v. Gibbon, 158 U. S. 155, 15 Sup. Ct. Rep. 779.

Now, it appears from the admitted facts in this case that the questions arising upon the defendant's application to enter the land as a homestead, and upon a claim of the Northern Pacific Railroad Company that it was entitled to the land by virtue of its grant, were pending and undetermined in the land department from 1887 to 1898, and, if it had jurisdiction to hear and determine them, it necessarily follows that during that time the courts were without right to hear and determine the questions, and that such time is not to be counted against the plaintiff in determining whether the statute of limitations has barred its right to its land. The defendant, however, claims that the land department had no jurisdiction to hear and determine any questions as to the title of the land, because when the defendant initiated his contest therein upon his claim that the land was public land, and subject to his proposed homestead entry, the title had in fact already passed from the United States to the plaintiff by virtue of the land grant in question; that such grant was one in praesenti; that the filing of the map of definite location was the source as well as the evidence of plaintiff's title, and that it then became complete, and the issuing of a patent for the land thereafter would be in the nature of a conveyance for further assurance, but in no sense essential to the legal title already vested; that, if the department had patented the land to the defendant on his contest and homestead claim, the courts would have held the patent void.

122 It is true that, if the department had made a mistake of law, whereby the patent for the land was issued to the defendant when, as a matter of law, the plaintiff was entitled to it, a court of equity would declare the defendant a trustee of the legal title for the benefit of the plaintiff: Roy v. Duluth etc. Ry. Co., 69 Minn. 547, 72 N. W. 794, 173 U. S. 587, 19 Sup. Ct. Rep. 549. But it will not do to reason backward, and conclude that the land department had no jurisdiction to determine the questions because it correctly decided them, from which it now appears that the plaintiff was entitled to the land before the defendant initiated the contest. The land grant and the filing of the map of definite location did not necessarily vest in the plaintiff a right to all the odd-numbered sections within the place limits, for there was expressly excepted

from the grant all land which had been sold, reserved, or other wise appropriated, or to which the right of pre-emption had attached at the time the line of road was definitely located. Whether the land here in controversy fell within the grant or the exception thereto was a mixed question of law and fact, which it was the duty of the land department to hear and determine when proceedings were instituted by the defendant to establish his right to enter it as a homestead; also when the Northern Pacific Company claimed it by virtue of its grant. Clearly, the department had jurisdiction in the premises, although the facts, when ascertained, demonstrated that the land was within the plaintiff's grant.

If there was any fair doubt as to the correctness of this conclusion, the doubt ought to be resolved against the defendant, for the claim he here makes is inequitable. He asserted by his homestead application that the land was public land, and within the jurisdiction of the land department, which he invoked; and by successive appeals he thereby compelled the plaintiff to litigate in the land department, with him, his claim, for eleven years. We therefore hold that the time during which the question of the title to the land was pending 1 and undetermined in the land department cannot be counted against the plaintiff in determining whether the statute of limitation has barred its right to recover its land, 123 and that the defendant did not establish title thereto by adverse possession.

Order affirmed,

BROWN, J., dissenting. It seems to me the majority give entirely too much effect to the proceedings in the government land department on defendant's application to make homestead entry of the land in question. Such proceedings were not brought to determine plaintiff's title its title had already vested-but to determine the asserted homestead right of defendant. Under what statute or principle of law does a proceeding suspend the running of the statute of limitations as to plaintiff's right to bring ejectment for the land, to which the majority must concede it had title? Suppose the maker of a promissory note should bring an action to cancel the same for fraud, or to recover possession thereof on the ground that it was never delivered, would the pendency of such an action suspend the holder's right of action on the note? Clearly not. Notwithstanding such an action were brought, the statute of limitations would continue to run against the owner of the

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note, and his right of action would be barred after the lapse of the statutory period of six years. Yet this decision establishes a rule to the contrary. I am unable to concur in that view of the law.

Adverse Possession of public and quasi public property is considered in the monographic notes to Schneider v. Hutchinson, 76_Am. St. Rep. 479-495; Northern Pac. Ry. Co. v. Ely, 87 Am. St. Rep. 775782.

MAGOFFIN v. MUTUAL RESERVE FUND LIFE ASSOCIATION.

[87 Minn. 260, 91 N. W. 1115.]

INSURANCE-Foreign Corporation-Service of Process.-A stipulation required to be made and filed by a foreign insurance company with the insurance commissioner before doing business within the state, authorizing the service of process in any action against it on such officer, and making such stipulation irrevocable so long as any liability of the company remains outstanding within the state, is binding on the company while such liability continues, although its right to do business within the state has been revoked. (p. 702.)

Cobb & Wheelwright, for the appellant.

J. E. Trask, for the respondent.

260 START, C. J. The defendant, appearing specially for that purpose, moved the 261 district court to set aside the service of the summons herein, and appealed from an order denying its motion.

The record certified to this court, including the complaint, tends to show the following facts: The defendant is a foreign. corporation, and engaged in the business of life insurance upon the assessment plan, having its home office and principal place of business in the city of New York. It was engaged in such business in this state from a time prior to December 2, 1885, until June 3, 1901, when its license or authority to transact such business in this state was revoked by the insurance commissioner of the state. It has, however, since such revocation, been collecting premiums due on its policies from residents of this state. On December 2, 1885, it issued and delivered in the due course of its business in this state a policy to the

plaintiff, who then was, and ever since has been, a citizen of this state, insuring his life for the sum of five thousand dollars. He accepted the policy, and paid the assessments to the defendant, in accordance with the terms thereof, for more than fifteen years, when, as he alleges in his complaint, the defendant unlawfully, and in violation of the terms of his policy, canceled it. Thereupon he commenced this action to recover from the defendant damages for its failure to perform on its part the terms of the policy.

Prior to the issuing of such policy the defendant made and filed with the insurance commissioner of the state the stipulation required by the statute (Gen. Stats. 1894, secs. 31833189), as a condition precedent to its right to do business in this state. The stipulation was renewed the last time on July 25, 1899, in consideration of its having applied and been admitted to transact business in this state. After the revocation of its authority to do business in this state, and before the commencement of this action, the defendant executed an instrument purporting to revoke such stipulation, which was duly filed in the office of the insurance commissioner. The provisions of the statute as to the terms of the stipulation at the time the policy was issued were, in effect, that no foreign insurance company shall do any business in this state until it has filed with the insurance commissioner a written stipulation agreeing that any legal process affecting such company served on 262 the insurance commissioner shall have the same effect as if personally served on the company; and that "so long as any liability of such stipulating company to any resident of this state shall continue, such stipulation shall not be revoked or modified except that another shall be filed according to law."

The statutory provisions as to the stipulation at the time the last one was executed and filed were these: "No foreign insurance company shall be so admitted and authorized to do business [in this state] until . . . . it shall, by a duly executed instrument filed in his office, constitute and appoint the insurance commissioner or his successor its true and lawful attorney upon whom all lawful processes in any action or legal proceeding against it may be served, and therein shall agree that any lawful process against it which may be served upon its said attorney shall be of the same force and validity as if served upon the company, and that the authority thereof shall continue

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