granted, not to exceed one hundred and twenty sections for each of said roads, having twenty continuous miles completed as aforesaid, and included within a continuous length of twenty miles of each of such roads, may be sold, and so from time to time, until said roads are completed, and if any of said road is not completed within ten years, no further sale shall be made, and the lands unsold shall revert to the United States."

This section of the granting act, and other acts of congress using the same words, have been frequently before the courts, and the supreme court has held in many cases that these words are grants in præsenti, and that the concluding clause of the section is a condition subsequent, which, if not enforced, the power to sell continues as before its breach, "limited only by the object of the grant, and in the manner prescribed in the act." Schulenberg v. Harriman, 21 Wall. 44; Railroad Land Co. v. Courtright, Id. 310.

It is contended, however, that because the lands were sold and transferred after the first 10 years had expired, from the date of the grant, June 3, 1856, and because the conveyance of the lands to Hugh Carlisle was made long after the 10-year period had expired, and the construction of the railroad was not completed, then the sales of the lands made after that time were void, under the terms of the law. This view of the law is not borne out by the cases cited, but the contrary.

In Schulenberg v. Harriman, cited supra, it is said, at page 62 of the opinion:

"The provision in the act of congress of 1856 that all lands remaining unsold after ten years shall revert to the United States if the road be not completed is no more than a provision that the grant shall be void if a condition subsequent be not performed [citing authorities]."

The opinion goes on (page 63):

"If the condition be not enforced, the power to sell continues as before its breach, limited only by the object of the grant, and the manner of the sale prescribed in the act. And it is settled law that no one can take advantage of the nonperformance of the condition subsequent annexed to an estate in fee but the grantor or his heirs, or the successors of the grantor, if the grant proceed from an artificial person; and, if they do not see fit to assert their right to enforce a forfeiture upon that ground, the title remains unimpaired in the grantee. And the same doctrine obtains when the grants upon condition proceed from the government. No individual can assail the title it has conveyed, on the ground that grantee has failed to perform the condition annexed."

If the government of the United States, through its legislative body, takes no action to enforce the condition in the granting act to these lands, then by what right or authority can this suit be maintained? If it be correct that the lands in question are not within the terms of the forfeiture act, then how is it shown that it ever was the purpose of congress to insist on any forfeiture contained in any provision of the act? On the contrary, does it not show that no such purpose was ever entertained, because never put into execution by any legislative act? It may be, and indeed the language used in the forfeiture act cited supra indicates, that the lands in question may have been purposely excluded from the terms of that act, and who shall say that the congress did not find ample reason why the construction of the railroad had been so long delayed, and

why the forfeiture should not apply to it? Congress may have been influenced by the condition of the country for a portion of the time between the passage of the granting act and the final completion of the road. The intervention of the recent war may have had an influence upon this legislation; but, whatever it may have been,and the motive which influenced congress is not open to question here, it is sufficient to say that, in the absence of congressional action as to the grant of these lands, there are no proper grounds upon which this bill can be maintained. It is clear implication from the action of congress in the forfeiture act, September 29, 1890, that the congress did not intend to insist on any condition subsequent which existed in the granting act.

It is to be noted in this connection that, at the date of the passage of the forfeiture act, the said railroad, as contemplated in the granting act from Guntersville, on the Tennessee river, to Gadsden, on the Coosa, was in process of construction, nearing completion, and was in fact completed and in actual operation before this bill was filed.

As to the charges of fraud in the bill, they are not sustained by the proof; at least by such measure of proof as is required in a case like this. And it is questionable how far the account and settleinents between Carlisle and the railroad company are open for consideration here. The company obtained its title from the state of Alabama, acting under a statute of the state, accepting the grant of land and the trust created by the act; and in the case of U. S. v. Des Moines Nav. & Ry. Co., 142 U. S. 510, 12 Sup. Ct. 308, it is held that the knowledge and good faith of a legislature are not open to question. But the presumption is conclusive that it acted with full knowledge and in good faith.

The result of these views is that the lands embraced in the first 120 sections of the granting act the railroad company was authorized to sell in advance of the construction of the road, and that the parties to whom such sale was made took good title, and there can be no recovery or restitution of any of these lands to the public domain in this case; (2) that the lands described in Exhibit D to original bill are lands which lie opposite to that part of the road which was completed and in operation on the 29th day of September, 1890, and are not within the lands covered by act of September 29, 1890.

WESTERN MORTG. & INV. CO. v. BURFORD et al.1 (Circuit Court of Appeals, Fifth Circuit.

1 ELECTION OF HOMESTEAD.

No. 401.

December 17, 1895.)

Defendant and wife owned a tract of farming and pasture land, composed of parts of the E. and the I. surveys. A dwelling on the I. survey was occupied as a homestead by them from 1879 until 1884, with temporary absences in Ft. Worth, and it was never formally abandoned, though after 1884 the family occupied another dwelling, which was on the E. survey. Held, that defendant had a right to designate, according

Rehearing denied February 17, 1896.

to the forms prescribed by the state law, the land in the I. survey, on which was the house formerly occupied by him, as the family homestead, and to mortgage the land in the E. survey to secure a loan. 2. SAME ESTOPPEL-COVENANTS IN MORTGAGE.

Defendant having, according to the legal forms, designated as his homestead the land in the I. survey,.upon which there was a dwelling house formerly occupied by him, and having on the faith thereof, procured a loan, secured by a deed of trust on the other survey, he was estopped by lawful covenant from claiming, as against the beneficiary in the deed, the land covered by the deed as a homestead.

3. SAME.

One reciting in a trust deed made to secure a loan that the property is not his homestead, but that other property is occupied and claimed by him as such, and making an affidavit to the same effect at the request of the proposed lender, is equitably estopped from claiming that the land covered by the deed is his homestead, if, at the time of making the deed, he had the right to deal with such land as free of all homestead rights. Appeal from the Circuit Court of the United States for the Northern District of Texas.

The appellant, as complainant below, instituted this suit against John W. Burford and wife, Matilda F. Burford, on their joint note, payable to the order of complainant, for $14,000, loaned to them by complainant, and interest thereon at 10 per cent. per annum from December 10, 1889, and 10 per cent. attorney's fees. The bill prayed for a judgment for the amount of the note, principal, interest, and attorney's fees, and for a foreclosure of a deed of trust lien executed by respondents Burford and wife, to secure the said loan on 405 acres of land in Tarrant county, Tex. The complainant specially pleaded and relied upon a subrogation clause in said trust deed, which recited the payment by complainant, at the express instance and request of said respondents, of a prior mortgage debt on said 405 acres of land, in favor of the Texas Loan Agency, of $6,300. By way of anticipation of an alleged false and fraudulent plea of homestead by respondents, the complainant averred that, prior to the making of the loans in question, the respondent John W. Burford did, on May 2, 1888, designate in writing, and set apart in due form of law, his homestead, as comprising 304 acres of land out of the S. C. Inman survey, no part of which 304 acres was embraced in the 405 acres described in complainant's trust deed and bill; that said designation was duly recorded as provided by law; and that, at the time respondents owned and occupied about 700 acres of land, of separate surveys, but all contiguous; and that said designation of his homestead was never changed by respondent. The complainant further alleged that the respondent Burford represented in his written application for the loan, and in the trust deed, that no part of the 405 acres tendered as security was any part of his homestead; that the loan was made on the faith of his representations and acts; that, without same, complainant would not have made the said loan, or any part thereof; and that its security will be irredeemably impaired unless its lien be enforced against all of the 405 acres covered by its trust deed. Burford and wife, respondents below, filed a joint answer, admitting the right of the complainant to a personal judgment against John W. Burford, as prayed for, and the validity of the complainant's lien as to 205 acres of the 405 acres described in the trust deed and in the complainant's bill, and that complainant was subrogated to all the rights of the Texas Loan Agency. The respondents denied the liability of Matilda F. Burford or of her separate estate for the debt in question, under allegations that she was a feme covert, and that the money was loaned to her husband. They further denied the validity of the trust deed as affecting 200 acres of the 405 in question, alleging that at the time of the original loan by the Texas Loan Agency, on May 2, 1888, down to the present time, they have continuously occupied, used, and claimed as a homestead 200 acres (specifically described in same) of the 405 acres covered by complainant's trust deed, and that their trust deed was as to the said 200

acres void under the constitution and laws of Texas. They admitted the execution by J. W. Burford of a homestead designation, and attach as an exhibit to their answer a certified copy of same, and they say they can neither affirm nor deny that the same is in form according to law.

The complainant filed a general replication, and, by amendment to its bill, alleged that, at the time the respondent Burford applied to the Texas Loan Agency for the $6,300 loan, he was temporarily living upon the 405 acres described in the trust deed of complainant; that he was there temporarily only for the convenience of his tenants; that the representative of the Texas Loan Agency informed said Burford, and he in turn informed his wife, that the loan could not be secured unless they would actually vacate the land in question, and designate and occupy the adjacent farm belonging to them; whereupon Burford and wife, with knowledge of the terms exacted by the Texas Loan Agency, requiring them to actually vacate said premises, did move from same, with the intention and with the effect of securing said loan on the faith of their acts as aforesaid; whereupon complainant averred that respondents are estopped from asserting a claim of homestead, and are estopped from claiming that they did not remove from same in good faith. The respondents amended their answer by averments that the Texas Loan Agency had knowledge of the actual occupancy by respondents of the 200 acres described in the original answer as the homestead, and that said Texas Loan Agency were not misled or deceived by any acts of respondents. There were other parties to the cause as respondents besides Burford and wife, but their interests were disposed of as subordinate to complainant's, and no issue or complaint is made as to the decree affecting them. The decree awarded complainant a judgment against John W. Burford for $23,430, with a foreclosure of its deed of trust liens to all of the 405 acres, except 120 acres thereof, particularly described in the decree. 67 Fed. 860. The decree is complained of only in so far as it denied unto complainant a foreclosure of lien as to the 120 acres, specially excepted in the decree.

The evidence shows that John W. Burford and wife were married in 1874, and shortly afterwards occupied as their home 304 acres of land of the S. C. Inman 640-acre survey, in Tarrant county, Tex., which land was inherited by the wife from her father, and constituted her separate estate; that they lived there until 1879, when they removed to Ft. Worth, temporarily, returning to Mrs. Burford's farm in 1882, where they lived until August, 1884, about 200 acres of the 304 being in cultivation. Meantime Burford and wife acquired other tracts of land adjacent to their homestead, being 120 acres of H. H. Edwards survey, and 111 acres of A. Voght survey, and 134 acres of the S. C. Inman survey, and moved on the 120 acres of the Edwards survey in 1884; but, at the time of the removal, the Voght and Edwards tracts and the 134 acres S. C. Inman tract were subject to a trust deed lien, to secure a $2,500 note and interest, which was not discharged until May 2, 1888. After moving onto the Edwards tract, in August, 1884, Burford and wife bought 40 acres more out of the H. H. Edwards survey, in 1885, and moved to Ft. Worth for the winter of 1885 and 1886, returning to the house on H. H. Edwards tract in 1886. On the 13th day of April, 1888, J. W. Burford made application to the Texas Loan Agency for a loan of $6,300, tendering as security the H. H. Edwards 160 acres, the A. Voght 111 acres, and the 134 acres S. C. Inman survey, in which application he disclaimed any homestead interest in either of said tracts, but expressly stated that his homestead consisted of the 304 acres S. C. Inman survey, adjoining the said tracts. At the date of this application, Willis Swearingen, a tenant of Burford's, was occupying the house, and cultivating the land, on the 304-acre tract, and Burford was living in the house on the H. H. Edwards 120-acre tract.

As to the foregoing facts there is no controversy.

J. W. Burford testified, after making application for the loan (the $6,300 loan), viz.: "Lassiter, representative of Texas Loan Agency, came to my house. Lassiter was pleased with the land, but said he did not see how he could let me have the money and me living on the land. I then told him I was anxious to borrow the money, and would get off the land in order to shape a loan. I proposed to him that I would exchange homes with Willis

Swearingen until loan was consummated. He then said it was satisfactory, if I would also designate the 304 acres S. C. Inman survey as my homestead." Mrs. Matilda. F. Burford testified, viz.: "Yes, in May, 1888, Mr. Burford borrowed some money from said company, and I signed the papers. Mr. Lassiter was the party representing the said company. Mr. Burford informed me, at the time he made the application, that Mr. Lassiter did not like to let him have the money on the homestead and place, unless Mr. Burford would move off of the said homestead. We, Mr. Burford and myself, went over to Mr. Swearingen's house, and stayed all night, and Mr. Swearingen and his wife and family, except one daughter, went over to our house, and stayed all night. My daughter stayed over at our house with Mr. Swearingen and his family to attend to the household affairs. That was the move that was made to borrow the money." To cross question, "Is it not a fact that you and your family were not living on May 2, 1888, on the H. H. Edwards survey or any of the land embraced in the trust deed executed by you to complainant, and did you not, on said day, occupy a place by exchange with Willis Swearingen?" Mrs. Burford answered: "It is not a fact. We were living on the place on the 2d of May, 1888. We did occupy a place by exchange with Willis Swearingen on the night of May 1, 1888, before the papers were executed. My daughter remained. on the place with the family of Swearingen, and their daughter stayed at their house with us." Swearingen testified that he was the tenant of Burford, and that Burford asked him to exchange places with him; that he wanted to borrow money on his pasture farm; and "that they would not let him have the money unless they vacated the place.”

Lassiter testified that he went to Burford's place, and refused the application for loan unless Burford would move from the land tendered as secu. rity, and designated his homestead, whereupon Burford stated that he would do so, as he had vacated the 304-acre farm of Mrs. Burford only temporarily anyway, for the convenience of his tenants; and that Burford was to make the move in good faith; and that the loan would not have been made but for the belief on the part of Lassiter that Burford had vacated the place in good faith. Of this, Lassiter required the affidavit of Burford. This affidavit is as follows:

"The State of Texas, County of Tarrant. On this day personally appeared before me, the undersigned authority, J. W. Burford, of Tarrant county, Texas, and known to me to be the person he represents himself to be, who, after being sworn, says upon his oath that he is now living upon and occupying the 304 acres of the S. C. Inman 640-acre survey, located south of Clear Fork of Trinity river, about 4 miles southwest of Ft. Worth, Texas, and claims, occupies, and uses said land as his homestead; that it has been his homestead for 10 or 12 years past; and that he does not use, occupy, or enjoy any of the 405 acres of land this day mortgaged to Texas Loan Agency of Corsicana, Texas, as a homestead, and never at any time claimed any part thereof as his homestead. This affidavit is made in securing a loan of $6,300.00, of this date, from said Texas Loan Agency. This, April 18, 1888. "J. W. Burford.

"Sworn to and subscribed before me, at Fort Worth, Texas, this 2nd day of May, 1888. Newton H. Lassiter, "[L. S.] Notary Public Tarrant County, Texas."

The designation of homestead is as follows: "Be it remembered that I, J. W. Burford, of the county of Tarrant, state of Texas, in pursuance of the rights vouchsafed me by the laws of the state of Texas, do by these presents dedicate, nominate, set apart, and designate as my homestead the following described property, in Tarrant county, Texas, to wit: All of the S. C. Inman 640-acre survey, located on south side of Clear Fork of Trinity river, about 4 miles southwest of Fort Worth, Texas; there being about 304 acres of said land. This designation is intended to include the whole of said 304 acres, or 200 acres thereof, which immediately surrounds the house thereon. To have and to hold unto myself, my heirs and legal representatives, forever, free and quit from all claims whatsoever;