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ground is absolutely null and void as to the excess over 300 feet, and can be collaterally attacked in a court of law.

The principles announced in Smelting Co. v. Kemp, 104 U. S. 636, in so far as the same are applicable to these cases, fully support the conclusions I have reached. There, as here, the patent was regular upon its face, "unless some limitation in the law, as to the extent of a mining claim which can be patented, has been disregarded." the course of an exhaustive and able opinion by Mr. Justice Field, quoting from Patterson v. Winn, 11 Wheat. 380, it is said that—

"If a patent was issued without authority, or was prohibited by statute, * * * it could be impeached collaterally in a court of law, in an action of ejectment."

In explanation of the phrase "that, if the patent be absolutely void on its face, it may be collaterally impeached in a court of law," the learned justice, delivering the opinion of the court, said:

"It is meant that the patent is seen to be invalid, whether when read in the light of existing law, or by reason of what the court must take judicial notice of; as, for instance, * that the patent is for an unauthorized amount."

own.

The contention of the defendants in that case rested upon the correctness of their assertion that a patent could not issue for a placer mining claim which embraced over 160 acres. This contention was sought to be maintained upon the theory that the applicant for a patent could not embody in his application any mining ground that he had purchased from other locators. The court held that there was no valid reason, and nothing in the language of the acts of congress, which prevented an individual from acquiring by purchase the mining ground located by others, and adding it to his The views therein expressed are conclusive as to the right of the applicants for a patent to the Mammoth quartz lode to embrace in their application two or more separate locations owned by them on the same lode. In Mining Co. v. Kerr, 130 U. S. 261, 9 Sup. Ct. Rep. 511, the question was presented whether the patent issued for a quartz lode was void because it embraced more than 200 feet in width of surface ground. The question thus raised was substantially the same as is presented here, but the facts were different. There it was shown that the rules adopted on the 17th of May, 1870, by the miners of the district where the lode was located, provided that "the surface width of any mining location shall not exceed 100 feet in width on each side of the wall rocks of said lode;" but it also appeared that in anticipation of the act of congress of May 10, 1872, (section 2320, Rev. St.,) there was a meeting of miners held in said district on the 4th day of May, 1872, and the rules of the district were altered and amended so as to provide that "the surface width shall be governed by laws of the United States of America;" and the court very properly held that, in view of this testimony, the land department had the right to determine which of these rules were in force. What the result of the opinion would have been if there had been no amendment to the mining rules is made clear by the language of the court in its reference to the rules and regulations of the miners adopted in 1870 limiting the surface ground to 200 feet. Upon this point the court said:

"Had that regulation remained in existence, and been in operation at the time the Clara mining claim was located, its effect upon the legality and validity of that location, at least as to all the land in excess of two hundred feet, could not be doubted." 130 U. S. 261, 9 Sup. Ct. Rep. 511.

In the cases under consideration, the surface ground upon which the town of Johnsville is situated, embracing the lands claimed by defendants, was never possessed or located as a part of the Mammoth quartz lode, and there was no law of the United States at the time the application was made for a patent in 1867, or when the patent was issued in 1877, or any state law, or any local rule, regulation, or custom of the miners in the Jamison mining district, which authorized or permitted any such location to be made. The patent, in so far as it includes any of said ground, was issued without any authority of law, and is therefore null and void.

2. Does the agreed statement of facts establish such a tenancy between the respective parties as to estop the defendants from denying the title of plaintiff to the lands in controversy? The general rule that a tenant cannot dispute his landlord's title is too well settled to require any discussion or citation of authorities. This rule, however, is subject to various exceptions and qualifications, equally as important and as well established as the rule itself. Among these exceptions are (1) where the tenant was induced to take a lease by mistake, fraud, or misrepresentation on the part of the lessor; (2) where both parties acted under a mutual mistake as to the law in regard to the title of the lessor; (3) where the tenant did not take possession of the property under the lease, but was in possession at the time he took his lease. Tewksbury v. Magraff, 33 Cal. 241; Franklin v. Merida, 35 Cal. 575; Shultz v. Elliott, 11 Humph. 187; Hammons v. McClure, 85 Tenn. 65, 2 S. W. Rep. 37; Miller v. McBrier, 14 Serg. & R. 382; Swift v. Dean, 11 Vt. 323; Carter v. Marshall, 72 Ill. 609; Bigelow, Estop. §§ 399, 409, 527; 2 Tayl. Landl. & Ten. § 707; Wood, Landl. & Ten. §§ 364, 374. The principles of law relating to these exceptions are elaborately stated, and the reasons given in support thereof are so clearly enunciated, in the authorities cited, that I deem it unnecessary to discuss this branch of the case at any length.

The third ground above stated is the only one upon which there is any dissent. It would probably require in certain cases some qualification, and depend to a great extent, in all, upon the particular facts of each case; but upon the agreed statement of facts the exceptions mentioned are directly applicable to this case, and, in my judgment, conclusive in favor of the right of defendants to show that the plaintiff did not acquire any title to the lands in controversy by virtue of the patent for the Mammoth quartz lode.

It is certainly clear that the parties have acted under a mistake as to the law in regard to the title of plaintiff. Estoppels are said to be odious in law, as they have a tendency to prevent a full, complete, and thorough investigation of the truth; and, in order to be operative in any case, ought to be certain to every intent, precise, clear, and unequivocal, and not depend upon inference. The facts agreed to fall far short of establishing the complete relation of landlord and tenant, express or implied, so as to have the effect in law to estop defendants

from asserting the truth. At the time of the commencement of these suits, the defendants were in possession of the lands occupied by them under the possessory title originally acquired by Banks, and, although they have no title from the government of the United States, they are in a position to show that they have a better right to the lands than plaintiff. If the defendants were simply in possession as mere naked trespassers, without any question of tenancy being raised, they could, in defense of such possession, attack the validity of plaintiff's title; for it has been held by the supreme court of the United States that in cases of this character, as in all other cases of ejectment, the plaintiff must recover upon the strength of his own title, and not upon the weakness of defendants. Reynolds v. Mining Co., 116 U. S. 688, 6 Sup. Ct. Rep. 601; Doolan v. Carr, 125 U. S. 629, 8 Sup. Ct. Rep. 1228. The facts agreed upon with reference to the payment of taxes are irrelevant and immaterial, as they do not establish any title in either party. In pursuance of the stipulation and agreement of counsel, it follows from the conclusions reached, as to the law of the case, that in the case of Lakin v. Dolly the judgment heretofore entered in favor of the plaintiff must be set aside, upon the payment by defendant of the costs of plaintiff included in said judgment, and judgment be entered in favor of defendant for his costs; and in Lakin v. Roberts et al. judgment must be entered in favor of defendants for their costs. It is so ordered.

WIGHT et al. v. ROYAL INS. CO.

(Circuit Court, E. D. Pennsylvania. November 29, 1892.)

No. 49.

FIRE INSURANCE-NOTICE OF CANCELLATION.

A fire insurance policy provided that the company could terminate the insurance by giving "notice to the insured or his representative," and refunding a ratable proportion of the premium. Held, that the brokers who obtained the insurance were not the insured's representatives to receive notice of cancellation. Grace v. Insurance Co., 3 Sup. Ct. Rep. 207, 109 U. S. 278, followed.

At Law. Action by Wight & Lackey against the Royal Insurance Company to recover loss on a policy of fire insurance. On motion for judgment for want of a sufficient affidavit of defense. Rule absolute.

W. Wilkins Carr, for plaintiffs.
Morton P. Henry, for defendant.

DALLAS, Circuit Judge. This is an action to enforce payment of loss under a policy of fire insurance. The defense alleged by the affidavit is that the insurance had been duly terminated before the loss occurred. The policy contains a canceling clause as follows:

"When, from any cause, the company or its agents shall desire to terminate this insurance effected, it shall be lawful for the company or its agents so to do by notice to the insured or his representative, and to require this policy to be given up for the purpose of being canceled: provided, that in any such

case the company shall refund to the insured a ratable proportion, for the unexpired time thereof, of the premium received for the insurers."

It is not necessary to examine the affidavit of defense at length. This motion may be disposed of by accepting the statement upon de fendant's brief, that

"The facts in this case present but two points: (1) Were the brokers who obtained this insurance for plaintiff the proper parties to whom notice of cancellation of the risk should be given? (2) Was an actual tender of the return premium necessary?”

I abstain from expression of any opinion upon the second of these points, because the conclusion which I have reached upon the first one is decisive of the case. In Grace v. Insurance Co., 109 U. S. 278, 3 Sup. Ct. Rep. 207, the clause of the policy, with respect to termination of the insurance by the company, "on giving notice to that effect, and refunding a ratable proportion of the premium," was substantially the same as in this case. Notice had been given to the person who had personally procured the insurance, and who, it was expressly stipulated, should be deemed to be the agent of the assured "in any transaction relating to this insurance." The supreme court viewed the question as one of interpretation of the contract, and held (reversing the court below) that notice to such person was not properly given. With respect to the construction of the similar clause contained in the policy upon which this action is based, counsel have not pointed out, nor do I perceive, any difference in language which would justify a difference of interpretation, unless in the presence of the words, "or his representative," in the clause now under consideration, thus: "Notice to the insured or his representative."

This difference does not, however, remove the present case from the authority of Grace v. Insurance Co. In my opinion, if-as that case seems to me to decide-the brokers who obtained this insurance were not the plaintiff's agents to receive notice of cancellation, they were not his "representatives" for that purpose. I know of no ground upon which the brokers could be held to represent the plaintiff, unless as his agents. Rule absolute.

In re DUNN et al.

AMOSKEAG NAT. BANK et al. v. FAIRBANKS et al.

(District Court, D. New Hampshire. October 10, 1892.)

1. BANKRUPTCY-COMPOSITION-VACATION FOR FRAUD-SETTING ASIDE DECREE -NOTICE TO CREDITORS.

Where a creditor of a bankrupt, without notice to, or a hearing of, creditors who had consented to a compromise, petitioned for and obtained an order vacating for fraud orders of acceptance and confirmation, and for the recordation of the resolution of compromise, the bankrupt court, on petition of the creditors, will set aside such order as based in error resulting from lack of notice to interested parties, where the fact of such error does not fully appear of record.

2. SAME-NOTICE TO CORPORATION-LACHES.

Where a bank, as one of the creditors consenting to the compromise, petitions to set aside the order for lack of notice, the fact that the depositions of two officers of the bank were taken in the bankruptcy proceedings seven

months after the granting of the order does not render the bank chargeable with notice at that time, and so guilty of laches in not earlier seeking to vacate the order.

3. SAME-ANOTHER ACTION PENDING.

The fact that a proceeding based upon an order of the district court is pending in the circuit court in behalf of the assignee, in which such order may or may not be the subject of collateral attack, does not deprive the district court of its power, or relieve it of its duty, to correct its records, in a direct proceeding to that end.

In Bankruptcy. Petition by the Amoskeag National Bank and David B. Varney, creditors of Cyrus Dunn, a bankrupt, against Alfred G. Fairbanks, assignee, David C. Whittemore, a creditor, and Adoniram J. Lane, as administrator of Cyrus Dunn, deceased, to vacate an order granted on the application of David C. Whittemore, which rescinded and nullified an order permitting a resolution of compromise to be recorded, and orders of acceptance and confirmation. Granted.

T. L. Livermore and Drury & Peaslee, for Bank and Varney.
Wm. L. Foster, for Fairbanks.

ALDRICH, District Judge. July 13, 1875, Dunn, Harris & Co. were adjudged bankrupts, and the plaintiff bank was a creditor in an amount exceeding $5,000. August 3d of the same year, the defendant Fairbanks was appointed assignee. Subsequently certain agreements were made between the bankrupt David B. Varney and the Amoskeag bank in the direction of a compromise, and after proceedings to that end on the part of the creditors and others the district court, December 31, 1875, ordered the resolution of compromise to be recorded; and on the same day the bankrupt Dunn entered into an agreement with Varney whereby he (Varney) was to furnish money to pay creditors, and take a conveyance of the estate of the bankrupts in the hands of the assignee. In pursuance of this arrangement, Varney advanced money to pay creditors. April 28, 1876, the assignee conveyed the property to Varney, and the account was accepted and the assignee discharged. In these transactions Varney was acting for the bank, and between December, 1875, and July 31, 1876, the bank, relying upon the agreements and orders in the proceedings, paid to the creditors something like $5,000.

March 4, 1878, David C. Whittemore, a creditor, filed a petition in this court setting forth, in substance, that the composition was effected through fraud, and asking that it be set aside. No notice of the Whittemore proceeding was given to the Amoskeag bank or to Varney, or to any creditor; Dunn, the bankrupt, only being notified. April 6, 1880, upon such proceeding and without hearing these plaintiffs, the order of December 31, 1875, permitting the resolution of compromise to be recorded, and the orders of acceptance and confirmation, were rescinded and declared null and void.

The

The proceeding at bar is a direct proceeding to vacate such order of April 6, 1880, and I think the relief sought should be granted. bank as creditor, and the bank and Varney by reason of the transactions based upon the agreements and previous orders, were interested parties, and entitled to notice. An issue of fraud was determined against them without notice and without a hearing. It was

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