Opinion of the Court.

have left the pine lands to the plaintiffs and the other defendants in such suit after fully paying their debt. There is no averment, however, of the means used to prevent competition, and the whole allegation is vague and unsatisfactory. There is also an averment that the complainants were not aware of and had no knowledge of the fraud practised upon them by Watson until recently, and long after such sale had been ratified and confirmed. But it appears that such sale occurred in 1886, was a matter of public record, and yet was allowed to rest until 1890 without action or challenge, when this bill was filed.

It further appears that one of the stipulations, under which the consent decree was entered, was that defendants were to have six months in which to pay and satisfy the decree, and that it was their intention to organize a land company in the city of London, and to sell the lands referred to, and pay off the indebtedness; but that this scheme was also thwarted by the interference of Watson and his agents, who, by circulating false reports affecting the title of the lands, prevented the company from being floated. But the bill does not allege what these false reports were, or to whom they were made, or any facts from which the court can determine whether they were likely to affect the organization of the company or not. It does not appear when Watson's son visited London, or what means were used to induce plaintiffs to execute quitclaim deeds of their interests, or when such deeds were executed, or to whom they were executed. There is no reason given why plaintiffs did not, in view of all these alleged frauds, apply to the court which ordered the sale for an order vacating the same. If the transactions took place as stated by them, they could hardly have been ignorant of the fraud practised upon them. As the sale and the prices paid were matters of record, plaintiffs were bound to inform themselves of the facts, and to take steps to protect their interests. Foster v. Mansfield, Coldwater &c. Railroad, 146 U. S. 88. It does not even appear whether the transaction in London occurred before or after the sale, though the inference is that it was some time after, when the plaintiffs must have been

Opinion of the Court.

aware of the suspicious circumstances attending the sale, or at least should have made inquiries. In short, the bill is much more remarkable for what it omits, than for what it alleges.

It does appear, however, that Watson had a claim against these parties, which was settled by the consent decree at $145,000; that 162,000 acres of these lands were purchased by Burroughs, who is not made a party to this suit, although he is alleged to have fraudulently conspired with Watson; and a large portion of these lands have been sold, presumptively, to bona fide purchasers, and that, in the lapse of time that has intervened, it would be impossible to restore the parties to their original positions.

It is apparent that the whole case depends upon the validity of the sale made by the special commissioner. If this sale were valid, plaintiffs lost all their interests in the lands, they had nothing left to convey by their subsequent quitclaim deeds, and the cancellation of such deeds would not revest them with any interest. If the sale were voidable, either by reason of a fraudulent combination to deter the plaintiffs from being present, or to prevent competition, or by reason of the false reports circulated in London, to prevent the plaintiffs from carrying out their agreement to satisfy the decree within six months, it was the duty of the plaintiffs, instead of executing quitclaim deeds, and thus putting themselves again into the hands of parties whom they allege to have twice played them false, to promptly disaffirm their acts, and seek to repossess themselves of the property. Their delay of four years, during which much of the property has been sold, presumptively to parties who have purchased without notice, is fatal to their claim.

The decree of the court below sustaining the demurrer and dismissing the bill was correct, and it is, therefore,

Affirmed.

Statement of the Case.

ARD v. BRANDON.

ARD v. PRATT.

ERROR TO THE SUPREME COURT OF THE STATE OF KANSAS.

Nos. 141, 142. Argued January 10, 1895. Decided March 4, 1895.

A., being qualified to make a homestead entry, entered in good faith upon public land within the indemnity limits of a railroad grant, but not within the place limits. He demanded at the local land office the right to enter 160 acres as a homestead. This was refused on the ground that the tract was within the limits of the grant, although at that time the land had not been withdrawn from entry and settlement. This was subsequently done, and the land conveyed to the railway company. A. remained upon the land, cultivating it. In an action to recover possession from him, brought here from a state court by writ of error, Held, that the application was wrongfully rejected, and that his rights under it were not affected by the fact that he took no appeal.

THESE two cases may be considered together, for the initial fact in defendant now plaintiff-in-error's claim of right is the same in each case. The actions were commenced by the respective defendants in error as plaintiffs in the District Court of Allen County, Kansas, the first, to recover the possession of the north half of the northeast quarter of section 11, township 26, range 20, and the other to recover possession of the west half of the southeast quarter of section 2, township 26, range 20. These two tracts, each of 80 acres, adjoin, and are so situated as to be the subject of one homestead entry. Rev. Stat. §§ 2289 and 2298.

The first of these tracts was on April 10, 1873, certified by the United States to the State of Kansas, and by it on May 19, 1873, conveyed to the Missouri, Kansas and Texas Railway Company. The second was patented November 3, 1873, by the United States directly to the Missouri, Kansas and Texas Railway Company. The respective plaintiffs hold under conveyances from the railway company.

A jury having been waived, the cases were submitted to

Statement of the Case.

the court upon certain admissions, and the single testimony of the defendant. No special findings of facts appear in the record, but by both the trial and the Supreme Court of the State the facts testified to as well as those admitted were treated as facts in the case. Among the matters admitted were these: "At the time defendant made settlement he was competent to make a legal homestead or preëmption entry, and has ever since been duly competent and qualified to make a valid homestead entry, and that he still resides on said land, with a wife and six children, and that he has all the required improvements to perfect a homestead or preëmption. It is admitted that the W. of S. E. 1, sec. 2, 26, 20 E., was selected by the Missouri, Kansas and Texas Railway Company, April 14, 1873, and it was patented to said company the 3d day of November, 1873, under the act of Congress of July 26, 1866. The N. of the N. E. of sec. 11, 26, 20 E., was selected by both companies jointly Missouri, Kansas and Texas Railway Company and L., L. & G. R. R., August the 8th, 1872. This tract was approved to the State for the M., K. & T. Co., April 10, 1873, under the act of Congress of March 3, 1863. Both tracts were selected as indemnity lands, and both tracts are over 12 miles from both roads and lie within the indemnity limits of both the L., L. & G. and M., K. & T. R. R. Said defendant also testified that when said defendant settled on said land he did it in good faith and for the sole purpose of making it his homestead."

So much of defendant's testimony as bears upon his original occupation of the 160 acres, and his first transaction at the government land office, is as follows:

"The first work said defendant did on said land was about the last of June, 1866; that he broke about two acres of prairie and three hedge rows on said land, making about five acres in all. Then I went to the U. S. land office at Humboldt, Kansas, which was on the 14th day of July, 1866, and there I made out a homestead application for said land, as described, and tendered the application and the land office fees to the register of the U. S. land office, of which Watson Stewart was register of said land office, and at that time I was a single

Statement of the Case.

man and over 21 years of age, a citizen of the United States, and had never had the benefit of the homestead or preëmption laws of the United States, but said register, Watson Stewart, rejected said application and fees, as he claimed, on the ground that said land was situate within the granted limits of the L., L. & G. R. R. and was double minimum lands, and that he could not let me homestead only 80 acres, as the land was double in price. Said register advised me if I wanted said 160 acres that I could first make a preëmption filing on 80 acres of land and put a house on said land within 12 months and prove up and pay for it at $2.50 per acre, and then I could homestead 80 acres more, and by that plan I could get 160 acres; but said register told me that I could change a preëmption filing at any time if I wanted to into a homestead, so I told said register as he would not allow my homestead I would make a preëmption filing on part of the land, as he would not let me only on 80 acres, so he made out the filing and I paid him a fee of $2.00, which he said was the fee.

"A copy is hereto attached and admitted as in evidence:

"No. 2115.

"REGISTER'S OFFICE,

HUMBOLDT, KANSAS, July 14th, 1866. "I certify that Newton L. Ard has this day filed in this office his notice to claim by right of preemption the west half of the southeast quarter of section No. 2, in township No. 26. S., in range No. 20 east, of the sixth principal meridian, in the State of Kansas. $2.50 per acre, within R. R. limits. "WATSON STEWART,

"Said words and figures $2.50 per acre, within R. R. limits,' being written in red ink transversely across the face of the certificate."

It also appears from his testimony that subsequently and in the fall of 1866 and the spring of 1867 he did further work on the land, and built a house thereon; that about July 1, 1867, he again went to the land office, but was told by Colonel N. S.