has at times been brought before it in cases arising in the county of this state where the court has been held, but it must not be understood that this case and others that have preceded it, where the petitioner has been brought into court, must be followed as precedents. No objection has been raised to such action, and this court has not considered it. The practice is not one to be commended, and it is doubtful if this court is required to have the prisoner before it at a hearing upon habeas corpus. The demurrer to the answer of the sheriff of Laramie county is overruled, and the peti tioner is remanded to the custody of that officer. CONAWAY and POTTER, JJ., concur. (5 Wyo. 343) O'KEEFE v. FOSTER et al. (Supreme Court of Wyoming. May 29, 1895.) MODIFICATION OF JUDGMENT-FORECLOSURE OF MORTGAGE OF DECEDENT. 1. A judgment against an administrator may be vacated or modified, at the instance of a general creditor of the estate, on the ground of illegality in proceedings prior to the judgment, or in the judgment itself. 2. A motion to modify a judgment, with due notice thereof, filed during the term at which the judgment is rendered, may be heard at the ensuing term. 3. Where an administrator appears in a suit against him for foreclosure of a mortgage, the petition in which does not aver presentation of the claim in suit, nor waive recourse against the estate, judgment by default against him. for a deficiency and for attorney's fees is erroneous, under Sess. Laws 1890-91, c. 70, subc. 14, § 9, requiring presentation of a claim against a decedent to the personal representative before action brought, except where the action is to enforce a mortgage, and the petition expressly waives all recourse against the property of the estate, and providing that no counsel fees shall be recovered unless the claim has been so presented. Error to district court, Laramie county; Richard H. Scott, Judge. Action by Julia O'Keefe against Joel Ware Foster, receiver, and Colin Hunter, administrator, for reformation of note and mortgage executed by decedent in his lifetime, for foreclosure of mortgage, and for judgment for attorney's fees and deficiency. No defense was interposed by administrator, although the petition did not aver presentation of claim, or waive recourse against estate of decedent. Judgment as prayed in petition, but modified at a subsequent term, upon motion of Foster, representing creditors of decedent, supported by affidavit showing nonpresentation to administrator, filed during term at which judgment was rendered upon notice to plaintiff. Affirmed. Walter R. Stoll, for plaintiff in error. Baird & Churchill and B. F. Fowler, for defendant in error Foster. R. W. Breckons, for defendant in error the administrator. GROESBECK, C. J. The original action was instituted in the district court for Laramie county by the plaintiff in error against Hunter, as administrator of the estate, and certain other defendants as heirs at law, of George L. Beard, deceased, for the reformation of a certain promissory note, and the mortgage of certain realty, securing it, executed by said Beard in his lifetime, for a foreclosure of the mortgage when reformed, and for judgment for attorney's fees and for any deficiency arising upon the sale of the mortgaged property. Judgment and decree in default was for the plaintiff in error, and the mortgaged property was ordered sold to satisfy the debt. Upon the incoming of the report of the sale, and the confirmation thereof, it appeared that the proceeds of the mortgaged property were insufficient to meet the amount of the note; and judgment was rendered for the deficiency against the administrator, the amount thereof to be paid in due course of administration. At the same term of court at which these proceedings were had, the defendant in error Foster, as receiver of the Cheyenne National Bank,-a creditor, to a large amount, of the estate of the decedent,-filed a motion, supported by affidavits, upon due notice to the plaintiff and judgment creditor, to modify the judgment and decree by striking out the judgment of $100 for attorney's fees, and for the deficiency, on the ground that the claim had never been presented to the administrator of the estate for allowance or rejection. At a subsequent term of the court this motion was sustained, and the judgment modified by striking out the judgment for attorney's fees and for the deficiency, as prayed for in the motion; and proceedings in error were instituted in this court against Foster, as receiver of the bank, the moving party in the court below, to reverse the modification of the judgment ordered and entered by the district court. was intimated in open court, after the submission of the cause, that the administrator of the estate was a necessary party, as he must be in court in order to be bound by any judgment that should be rendered by this court; and subsequently the administrator appeared by his attorney, and asked to be made a party defendant in the proceedings in error in this cause. This motion was granted, and there is no necessity for reviewing the question as to whether or not there is such a defect in parties here as would preclude us from deciding the cause on its merits, as the appearance of the administrator is tantamount to his being brought into court by service of a summons in error. Hammond v. Hammond, 21 Ohio St. 620. It The petition does not aver the presentation of the claim to the administrator, nor is recourse against the estate of the decedent waived therein. No objection was taken to this omission by the administrator, and judgment was rendered by default against him, after the sale of the mortgaged premises for vacation or modification of a judgment which fraudulently abridges their own rights and remedies. An invalid judgment by confes judgment creditor, upon notice to the plaintiff. Bernard v. Douglas, 10 Iowa, 370. A judgment against an administrator may be vacated at the instance of the heirs, where the conduct of the former is so negligent as to leave the latter no other remedy, and there is a good defense not presented by the defendant. Smith v. Schwed, 9 Fed. 483. See 1 Black, Judgm. § 317. So it would seem that any lienor or judgment creditor, or any general creditor, of an estate of a decedent, has sufficient interest in a judgment rendered against an administrator, to be paid in due course of administration, to inquire into the legality of the proceedings leading up to the judgment, and the judgment itself, as such a general creditor is directly interested in the distribution of the assets of the estate. the deficiency, including the amount of $100 for an attorney's fee, to be paid in due course of administration. The statute provides that: "No holder of any claim against an estate.sion was set aside at the instance of a junior shall maintain any action thereon unless the claim is first presented to the executor or administrator, except in the following case: An action may be brought by any holder of a mortgage or lien to enforce the same against the property of the estate subject thereto, where all recourse against the property of the estate [is] expressly waived in the complaint [petition], but no counsel fees shall be recovered in such action unless such claim be so presented." Sess. Laws 1890-91, pp. 271, 272, c. 70, subc. 14, § 9. The statute further provides for the publication of a notice to the creditors of the decedent by the administrator or executor of a decedent's estate within 30 days after letters granted, stating that letters testamentary or of administration have been granted, the date, and requiring all persons having claims against the estate to exhibit them for allowance within a specified time. All claims against the estate arising upon contracts, whether due, not due, or contingent, must be presented within the time limited in the notice,-six months and one year, or they are barred forever; the only exception being that of a claimant who had no notice, by reason of being absent from the state, in which case the claim may be presented before a decree of distribution is entered. Id. §§ 2, 3. If the executor or administrator refuse or neglect to indorse on a claim his allowance or rejection, with the day and date thereof, such neglect or refusal is deemed to be a rejection on the tenth day after the claim is presented to him. Id. § 5. These provisions of the Probate Code are the ones applicable to the case at bar, and are the usual statutory provisions for the presentation of claims, and the penalty for nonpresentation within the required time. Three points arise in the case, and they will be considered separately: 1. Had Foster the right to question the judgment, he being a stranger to the original action, and in no wise interested, save as a representative of a creditor of the estate of the decedent? We think his interest as a creditor is sufficient, and that he, with the other creditors, had the right to inquire into the legality of the judgment, inasmuch as the judgment for the deficiency arising upon the sale must, of necessity, swell the liabilities of the estate, and leave a smaller amount to be distributed. While it is true, as a general rule, that a judgment will not be set aside or vacated at the motion of a third person, not a party to the action, as such parties would probably have the right to impeach a judgment collaterally whenever it comes in conflict with their rights, if it was founded on fraud or collusion, there are cases where adequate protection would not be afforded by these means, and creditors have the right to proceed directly for the 2. Under the facts of this case, could the judgment of the court be modified at a subsequent term to that at which it was rendered? It is the rule of the common law, adhered to generally in most of the states, that after the expiration of the term the court loses control of its judgments rendered during that term, and when the term expires they become final, and the court has no longer any power to vacate or modify them. But this rule is subject to a number of exceptions, as in the case of void judgments, for the misprision of the clerk, or irregularity in obtaining the judgment or order. The latter grounds-of clerical misprision and irregularity in obtaining the judgment-may be by motion, under our statute, while for fraud or erroneous proceedings a new action must be brought. Rev. St. §§ 2701-2705. A judg ment may be carried over the term by a motion to vacate or modify it, filed upon notice at the term at which it was rendered. Such is the case here, as the motion to modify, with due notice thereof, was filed during the term, although not granted until a subsequent term, and this is sufficient to warrant the court to grant the relief at the ensuing term. Black, Judgm. § 310; Goddard v. Ordway, 101 U. S. 745; Smith v. Best, 42 Mo. 185. As the motion to modify the judgment in the case at bar, with the supporting affidavits, was filed upon due notice to the plaintiff below, at the term at which the judgment assailed was rendered, the motion by adjournment was carried over the term, and the action of the district court at its following term, in passing upon the motion, must be sustained. 3. Was the action of the court below in granting the motion to modify erroneous? The petition did not aver the presentation of the claim, and did not expressly waive recourse against the estate. If the attention of the court below had been called to the matter by the administrator, by demurrer or oth er proper pleading, the petition would have been held insufficient. The terms of the statute are imperative, that "no holder of any claim against an estate shall maintain any action thereon, unless the claim is first presented to the executor or administrator"; and the only exception is in the case of the foreclosure of a mortgage or lien to enforce the same against the property of the estate subject thereto, where all recourse against the other property of the estate is expressly waived in the petition, but no counsel fees can be recovered in such an action without presentation of the claim. The validity of the judgment foreclosing the mortgage is not attacked, and no objection is taken as to that, but merely to the judgment for the deficiency and for attorney fees. The administrator made no objection to the pleading, and it may be claimed that as he waived the nonpresentation of the claim the question cannot be raised now. It is true, as a general rule, that the administrator may waive a general statute of limitations, and thus satisfy the conscience of the testator or de cedent, but that in the matter of the presentation of the claim he cannot waive the statute requiring its presentation, and in such a case a judgment would be considered as against him personally, and the estate would not be bound. Wood, Lim. Act. §§ 188-199; 7 Am. & Eng. Enc. Law, 282, and cases cited. Contra: Pepper v. Sidwell, 36 Ohio St. 454. There are cases to the contrary, but they do not contain a citation of authorities, and are evidently ill considered. Our statute, however, would seem to operate to prevent the administrator from waiving the general statute of limitations, for "no claim shall be allowed by the executor or administrator which is debarred by the statute of limitations." Sess. Laws 1890-91, c. 70, subc. 14, § 8. The statutory rule requiring the presentation of claims is a wise one, founded on enlightened experience. It shuts out doubtful or stale claims, secures a definite knowledge of the liabilities of an estate, for the benefit of heirs and creditors, and subjects all of the claims to the scrutiny of one officer or trustee, charged with the duty of administration, and who gains a comprehensive knowledge of the entire affairs of the dece dent, a valuable aid in detecting spurious claims. Without such a provision to ascertain speedily and accurately the resources and liabilities of an estate of a decedent, the distribution of property would be attended by tedious delays, and the interest of creditors and distributees postponed to suit the caprice of claimants. Even judgments against the decedent for the recovery of money must be presented to the executor or administrator, like any other claim, under our statutes. A presentation of the claim, and its disallowance, or a delay in allowing it equivalent to its rejection, is then a necessary allegation in a suit against an executor or administrator, under the Probate Code, as the right to sue such a trustee or fiduciary depends solely upon the disallowance of the claim. Where a judgment is rendered, it can only be paid in due course of administration, and it only establishes the claim in the same manner as if allowed by the administrator. In order to maintain an action against an administrator, except to enforce a lien against specific property subject to it, there must be an allegation to the effect that the claim has been presented and rejected, or that it is considered rejected upon failure to allow it within the statutory period. In an action to enforce a lien or mortgage, recourse alone must be had to the property covered by the lien, unless the claim is first presented. As the presentation of the claim was neither pleaded nor proved, and as the administrator had no right to waive the statute requiring the claim to be presented, the judgment was erroneous for counsel fee and deficiency arising upon the sale of the mortgaged realty; and the court having, upon a motion timely interposed, corrected the error by modifying the judgment to conform to the law and the facts, there is no reason for disturbing its action. The judgment of the district court modifying the judgment and decree is affirmed. 1. In proceedings under Rev. St. U. S. § 2326, to determine an adverse claim to a mineral location, defendant denied plaintiff's possession or right to it, or his compliance with the federal statutes, local laws, and rules of miners, as alleged in the petition, and, in a so-called "cross petition," alleged title in itself by compliance with such laws and regulations, and asked that its title be quieted. Held that, since under Rev. St. § 2988, the allegations of the "cross petition" could have been pleaded as a defense under the general denial, no new matter was set up, and a reply was not necessary. 2. Where judgment was rendered for defendant on the pleadings for want of a replication, a motion to set aside the judgment is the proper remedy, and no motion for new trial is necessary. Error to district court, Laramie county; Richard H. Scott, Judge. Action by Cy Iba against the Central Association of Wyoming to determine adverse claims to a mineral location. From a judgment for defendant on the pleadings, plaintiff brings error. Reversed. E. W. Mann, for plaintiff in error. Baird & Churchill, for defendant in error. GROESBECK, C. J. This action was brought in the district court for Natrona county, and was removed upon change of 1 Rehearing pending. venue to the district court for Laramie county. The amended petition of the plaintiff below, who is plaintiff in error here, alleges the citizenship of plaintiff; that defendant is a domestic corporation; that the plaintiff, except against the paramount title of the United States, is the legal owner of the S. W. 4 of section 13 of township 40 N., of range 79 W., in Natrona county, in the state of Wyoming, and under and by virtue of a compliance on his part with the laws of the United States and of the state of Wyoming, and the rules and regulations of the Casper Mountain mining district, within the limits of which the premises are located, in relation to mineral lands of the United States, the plaintiff is entitled to the possession thereof, and that he was such owner on the 1st day of February, 1892, and had been for a long time prior thereto and has ever since been entitled to the free and full possession thereof; that, on or about the date last aforesaid, the defendant, by its agents and employés, entered upon and took possession of said premises, wrongfully and with out the consent of plaintiff, and wrongfully and unlawfully interferes with the possession of the plaintiff, and prevents his free and full possession thereof, and wrongfully withheld and still withholds the possession thereof from the plaintiff, to his damage in the sum of $1,000; that on or about the 1st day of February, 1892, the defendant herein filed his application for a patent for said above-described premises, calling the same the "Jackass Oil Placer Mining Claim,” in the United States land office at Douglas, Wyo.; that afterwards, within the period of publication as required by law, the plaintiff filed in said land office his protest and adverse claim against the issuing of a patent to said premises to the defendant, and brings the action to support said adverse claim; that plaintiff has necessarily disbsed in support of his adverse claim certain specific sums for the expense of preparing it. He therefore prays judgment against the defendant for the recovery of the full and free possession of said premises, for the sum of $1,000 damages, and for the sum of $87, expended in support of said adverse claim, and for costs of suit. The answer of the defendant admits its corporate existence, denies the allegation of citizenship for lack of sufficient knowledge to form a belief as to the truth or falsity of such allegation, and specifically denies each of the remaining allegations of the petition; admitting, howerer, the filing of the application for a patent for the oil placer mining claim, and the filing of the protest in the land office against the issuance of a patent to defendant, and denying for lack of sufficient knowledge thereof the alleged disbursements of plaintiff in the matter of making his protest and adverse claim. For a second defense and cross petition, defendant alleges its title, except as to the paramount right of the gov ernment to the premises, by virtue of its compliance with the acts of congress and state and local regulations, and its ownership and possession of the land, and prays judgment against the plaintiff, that its title to said realty be freed and cleared of any and all claims of the plaintiff, and for costs, As required by our statute, both of these pleadings are verified. No reply or answer to the defense or cross petition was filed by the plaintiff. The cause was continued, and leave was given to plaintiff to take depositions in term time. Plaintiff asked for permission to file a reply to the answer after the time had expired therefor, which was denied by the court, and, upon motion of the defendant, judgment was rendered upon the pleadings in favor of the defendant, and certain findings of fact based upon the answer or cross petition of defendant were made by the court, over the objections of plaintiff. A motion was made to set aside the order for judgment upon the pleadings upon a number of grounds, most of which are waived as not insisted upon in the petition in error, and the sole contention is upon the action of the court in rendering judgment upon the pleadings. The proceedings were instituted under the provisions of section 2326 of the Revised Statutes of the United States, requiring the party filing the adverse claim in the land of fice to commence proceedings in a court of competent jurisdiction within 30 days after filing his adverse claim, and to prosecute the same with reasonable diligence. It has been held that ejectment is the proper form of proceeding in such actions (Becker v. Pugh, 9 Colo. 589, 13 Pac. 906), and that the suit is one at law and not in equity (Burke v. McDonald [Idaho] 13 Pac. 351), and that the parties have the right of trial by jury (Manning v. Strehlow, 11 Colo. 451, 18 Pac. 625). It is provided that if in any action brought pursuant to section 2326, Rev. St. U. S., title to the ground in controversy shall not be established, the jury shall so find, and judgment shall be entered according to the verdict; and in such case costs shall not be allowed to either party, and the claimant shall not proceed in the land office or be entitled to a patent for the ground in controversy until he shall have perfected his title. 21 Stat. 505. Under this act the rulings are that each party is practically a plaintiff, and must show his title; that there can be no nonsuit, but that, if neither shows title, the verdict must be special, and the title, of course, remains in the United States, so far, at least, as the litigating parties are concerned. Jackson v. Roby, 109 U. S. 440, 3 Sup. Ct. 301; Rosenthal v. Ives (Idaho) 12 Pac. 904. Under the section cited, upon the filing of the adverse claim all proceedings in the land office are suspended until the determination of a court of competent jurisdiction is reached, or until it is shown that the adverse claimant has not brought suit upon his adverse claim within the time fixed by law. It has been held that where a defense is interposed setting up the claim of ownership or title in the defendant, a replication must be filed, or the defendant will be entitled to judgment on the pleadings. Newman v. Newton, 14 Fed. 634. In this case it was sought to vacate a judgment for the defendants for want of a replication, in an action of ejectment to recover a certain mining claim, which was refused, and the reason for the decision appears in the opinion of Judge Hallett to be based upon the peculiar provisions of the Colorado Code of Civil Procedure; and, in ejectment for a mining claim, where defendant sets up title in himself, the plaintiff must reply. These provisions quoted from in the opinion are that the defendant may deny the allegations of the complaint or disclaim any interest in the premises, and that "the answer may also state generally, as in the complaint, the character of the estate in the premises, or any part thereof, which the defendant claims, or any right or possession or occupancy he claims." Our Code is entirely different in this respect. It provides that, in actions to recover realty, "it shall be sufficient, if the defendant in his answer deny generally the title alleged in the petition, or that he withholds possession; but if he deny the title of the plaintiff, possession by the defendant shall be taken as admitted." Rev. St. § 2988. In Ohio, where provisions of the Civil Code of Procedure identical with those of our Code are quoted, it was held that in an action under the Code for the recovery of real estate, whereof the legal title is in the plaintiff, a defense grounded on an equitable title and right of possession under it in the defendant can be set up and must be pleaded, and that a general denial of the plaintiff's title merely would not let in testimony of such equitable estate. Powers v. Armstrong, 36 Ohio St. 357. But where the answer in such actions denies the title alleged in the petition, other defenses in the answer setting up title in the defendant are not material, as the questions thus sought to be presented properly arise on the trial under the general denial of the title of the plaintiff. Rhodes v. Gunn, 35 Ohio St. 387; Kyser v. Cannon, 29 Ohio St. 359; Mehurin v. Stone, 37 Ohio St. 49; Wintermute v. Montgomery, 11 Ohio St. 442. It has been held otherwise (Davis v. Clark, 2 Mont. 310; Newman v. Newton, supra), but these adverse decisions are probably based on peculiar statutory provisions. In Kansas, where the Code provision is similar to that of Ohio and ours, under a general denial, defendant may prove a paramount title in himself, where such title carries with it a right of possession, whether it is legal or equitable. Clayton v. School Dist., 20 Kan. 256. If the legal effect of the allegations in an answer is a mere denial of the averments in the petition, or where they could have been shown under a general denial, a reply is not necessary. Inv.40P.no.9-34 surance Co. v. Kelly, 24 Ohio St. 345; Corry v. Campbell, 25 Ohio St. 134; Ferguson v. Tutt, 8 Kan. 370; Bliss, Code Pl. 396, and cases cited. It is apparent that like a general denial in replevin, under the Code, a general denial in an action for the recovery of realty thereunder is sufficient to let in any legal defense, such as paramount title in the defendant or in a third person. It has been a matter of some contention that an action in the nature of one in ejectment would permit a plaintiff to enforce an equitable right or cstate. It is sufficient for him, under our Code, to state in his petition that he has a legal estate in the premises, and is entitled to the possession thereof, and it may be asserted that in a suit like the one at bar, the paramount title being in the United States, and so admitted in the pleadings, the prevailing litigant has nothing more than an equitable estate, or the right to the legal title, upon his compliance with the local rules of miners and the national and state statutes relating to the location of working and obtaining title from the government to the mining claim. The "legal estate" which the plaintiff may allege that he has may comprehend any estate known to the law, and it seems that the early cases have decided that a plaintiff may recover upon his possessory title alone where no better is set up by the defendant. Ludlow v. Barr, 3 Ohio St. 407; Abram v. Will, 6 Ohio St. 164; Devacht v. Newsam, 3 Ohio St. 57. But the act of congress must govern the final disposition of the case in order that the land officials may proceed as directed by that statute. The judgment of the court must be filed in the land office, and until that is done, or a showing is made that the adverse claimant has not brought his suit within the time limited by statute or has not prosecuted the same with diligence, all proceedings are stayed in the land office. The act of congress of 1881 directs a finding by the jury in case title to the ground shall not be established by either party, and the claimant for the patent, the defendant in the action, cannot proceed in the land office or be entitled to a patent for the ground in controversy until he shall have perfected his title. So, then, the ultimate result of a suit is a finding that the plaintiff has the exclusive right and title, save only as to the legal title of the government, or that the defendant has the same title, or that neither of them has it. When the relief is afforded by the courts of a state, the rules of pleadings and the methods of procedure of the state must be followed, yet the matters settled ought to be under the provisions of the federal statute, or the relief will be wholly inadequate, and nothing might be determined that would be of advantage to either litigant or the government. The ordinary rule in such actions that the plaintiff must recover upon the strength of his own title, and that otherwise the defendant is entitled to judgment, does not govern in |