date of the act, but which it had voluntarily abandoned eleven months before, and the occupancy of which it never resumed, either for missionary or any other purposes. Not even a liberal construction would support such a claim."

From this it appears that there must be occupancy, and the extent of the occupancy is one limit of the grant. This occupancy must be independent and separate, and not inferior and subordinate. It must be an occupancy in one's own right, and not under and dependent upon another.

This act of congress is not exceptional in its character, but in line with the general course of legislation in respect to the settlement and development of our western territories. The pioneer has always been regarded as entitled to favorable consideration, and while his occupancy has not been deemed, of itself, sufficient to establish title to the soil, yet it has been held to give him certain possessory rights, which are the subject of contract, and create a superior equity in respect to the acquisition of title. Lamb v. Davenport, 18 Wall. 307, illustrates this. In early days one Lownsdale settled upon a tract of land in Oregon, on which is now the city of Portland. Certain transactions were had between him and others in respect to that land prior to the acquisition of title, and the validity of those transactions was the subject-matter of this litigation, and in respect thereto the court said, on page 314:

"Of course, no legal title vested in any one by these proceedings, for that remained in the United States, all of which was well known and undisputed. But it was equally well known that these possessory rights, and Improvements placed on the soil, were, by the policy of the government, generally protected, so far, at least, as to give priority of the right to purchase whenever the land was offered for sale, and where no special reason existed to the contrary. And though these rights or claims rested on no statute, or any positive promise, the general recognition of them in the end by the government, and its disposition to protect the meritorious actual settlers who were the pioneers of emigration in the new territories, gave a decided and well-understood value to these claims. They were the subjects of bargain and sale, and, as among the parties to such contracts, they were valid. The right of the United States to dispose of their own property is undisputed, and to make rules by which the lands of the government may be sold or given away is acknowledged; but, subject to these well-known principles, parties in possession of the soil might make valid contracts, even concerning the title, predicated upon the hypothesis that they might thereafter lawfully acquire the title, except in cases where congress had imposed restrictions on such contracts."

Rector v. Gibbon, 111 U. S. 276, 4 Sup. Ct. 605, is even more closely in point. In that v.15s.c.-50

case, three parties, Rector, Hale, and Gaines, had for a series of years claimed lands adjacent to the Hot Springs, in the state of Arkansas. Finally, in a suit which came to this court (Hot Springs Cases, 92 U. S. 698), it was adjudged that neither of these claimants had any title to the land, but that it still remained the property of the United States. Subsequently an act was passed (19 Stat. 377) for a survey of the tract, and the platting of the same into lots and blocks, and providing that the commissioners appointed to make the survey and plat should "finally determine the right of each claimant or occupant to purchase the same, or any portion thereof, at the appraised value, which shall be fixed by the commissioners." One Ballantine was in occupation of certain premises under a lease from Rector, one of the claimants. The commissioners awarded the right of purchase to Ballantine, but this court held such award erroneous, and that the right of purchase was in Rector, the landlord; the court saying on page 283, 111 U. S., and page 605, 4 Sup. Ct.:

"The government did not treat him and the other claimants as wanton intruders on the public domain, for then it might have ejected them by force. Instead of that, it authorized proceedings for a judicial ascertainment of the merits of their respective claims. The act of 1877 embraces, therefore, under the designation of 'claimants and occupants,' those who had made improvements, or claimed possession under an assertion of title or a right of pre-emption by reason of their location or settlement. It was for their benefit that the act was passed, in order that they should not entirely forfeit their claims from location or settlement and their improvements, but should have, except as to the portions reserved, the right of purchase. Parties succeeding, by operation of law or by conveyance, to the possession of such claimants and occupants, would succeed also to their rights. But lessees under a claimant or occupant holding the property for him, and bound by their stipulation to surrender it on the termination of their lease, stand in no position to claim an adverse and paramount right of purchase. Their possession is, in law, his possession. The contract of lease implies, not only a recognition of his title, but a promise to surrender the possession to him on the termination of the lease. They, therefore, whilst retaining possession, are estopped to deny his rights. Blight's Lessee v. Rochester, 7 Wheat. 535. *This rule extends to every person who enters under lessees with knowledge of the terms of the lease, whether by operation of law, or by purchase and assignment. The lessees, in this case, and those deriving their interest under them, could therefore claim nothing against the plaintiff by virtue either of their possession, for it was, in law, his possession, or of their improvements, for they were, in law, his improvements, and en

titled him to all the benefits they conferred, whether by pre-emption or otherwise."

So, in the act before us, congress, recognizing certain possessory rights, flowing from occupancy, made a donation to the occupant of the premises so occupied to the extent of not exceeding 640 acres. That this was a donation, instead of a grant of the right to purchase, is immaterial. The donation feature was inserted because of the benefits supposed to flow from the religious work of the mission, and proceeded upon the same principle that exempts from taxation the property of religious organizations. But the occupancy which was contemplated was an independent occupancy,-one exercised by the mission in its own right. No such occupation appears here. The real occupant was the Hudson Bay Company. It had the possessory right. It had been in occupation long before the coming of the two missionaries, and, whatever occupation the mission station had, it was under and by permission of the Hudson Bay Company. It was no more than a tenant at will, or by sufferance. The United States, by treaty prior to this act, guarantied to protect the possessory rights of the Hudson Bay Company; and it cannot be supposed that it intended by this act to ignore those rights, and grant away the land to those who occupied under it, and simply by its sufferance. If it be said that, by giving permission to the purchaser to build a church and occupy it, the Hudson Bay Company vacated and surrendered its own possession, it only did so to the extent of the ground actually occupied by such church and buildings. So, if the award by the secretary of the interior is a decision that there was in fact a Catholic mission at Vancouver, it is also a decision of the further fact that its occupation was limited to the tract awarded. There is nothing in the record to impeach his action; and if the question were an open one, and to be tried de novo, there is in the record no sufficient testimony to justify any other conclusion. The situation is not dissimilar to that which would arise if some religious organization should come into the city of Washington, and acquire title to a certain lot, and erect thereon a building. No one would think of saying that thereby it became the occupant of the city. Its occupation would be limited to the lot it bought and placed its building upon.

These considerations are decisive of this case. The decree of the circuit court is affirmed.

while the omission of the bond does not necessarily avoid an appeal, and the appellate court may, in proper cases, permit the bond to be sup plied, yet this permission could not properly be accorded after a lapse of nearly four years from the date of the decree; and, under such circumstances, where such permission is not even applied for, the appeal may properly be dismissed.

2. An appeal by one of several parties against whom a joint decree has been rendered, without joining the other parties therein, must be dismissed, when there is nothing in the record to show that his codefendants were applied to and refused to appeal, or that any order was entered by the court, on notice, granting a separate appeal.

Appeal from the Circuit Court of the United States for the Eastern District of Arkansas. Paul F. Beardsley filed his bill in the circuit court of the United States for the Eastern district of Arkansas against John D. Beardsley and the Arkansas & Louisiana Railway Company to enforce certain rights in the railway under certain alleged trusts, which resulted in a final decree, February 24, 1887.

The decree adjudged that complainant, Paul F Beardsley, pay to defendant J. D. Beardsley the sum of $7,756.29 within 30 days, with interest from December 24, 1886; and that, upon such payment, defendant J. D. Beardsley convey and deliver to complainant or his successors of record, or into the registry of the court, one-third of the full-paid stock of the Arkansas & Louisiana Railway Company (less one-third of eight shares issued to the directors), which had been issued or ought to have been issued to defendant J. D. Beardsley, and which one-third amounted to 1,704 shares, of the face value of $100 each; and that at the same time defendant John D. Beardsley deliver and convey to complainant or his solicitors, or into the registry, one-third of 144 first mortgage bonds, earned under a construction contract between said defendant and the railway company, but not certified nor held as collateral security; and that as soon as said defendant received from the St. Louis,* Iron Mountain & Southern Railway Company 240 first mortgage bonds of the Arkansas Company, held as collateral security, or as soon as the debt due the St. Louis Company had been paid, that he deliver to complainant one-third of these bonds. And it was further adjudged and decreed that the defendant John D. Beardsley had a lien on the one-third interest sold by him to complainant in the stock and bonds of the Arkansas Company for the payment of the sum of money herein adjudged to be due him from complainant; and that, if complainant should fail to pay that sum within the time fixed, that a sale of complainant's interest in said stock and bonds be made as directed, particulars relating thereto being set forth. It was also decreed that defendant John D. Beardsley pay all the costs of the proceedings, except the costs of such sale and the orders of court in pursuance thereof, which were to be paid by complainant.

From this decree an appeal to this court was allowed J. D. Beardsley, April 6, 1887, as of March 30, 1887, and the record was filed herein September 27, 1887. The decree was af

firmed February 2, 1891. Beardsley v. Beardsley, 138 U. S. 262, 11 Sup. Ct. 318.

The present record discloses that on October 22, 1887, while the appeal first mentioned was pending, Paul F. Beardsley, without leave, filed a supplemental bill, making the St. Louis, Iron Mountain & Southern Railway Company a party with the original defendants, J. D. Beardsley and the Arkansas & Louisiana Railway Company. A motion to strike this bill from the files was made, and a demurrer and motion to dismiss filed, but the supplemental bill was retained, an amendment allowed to it making Jay Gould a party, the demurrer overruled, the bill taken as confessed by the Arkansas & Louisiana Railway Company, issues made up on the answers of J. D. Beardsley, the St. Louis Company, and Gould, evidence taken, and the case went to final decree before Caldwell, J., May 9, 1891.

It was thereby decreed that defendant J. D. Beardsley held in trust for the use and benefit of the Arkansas & Louisiana Railway Company certain described lands, and he was directed within 30 days to execute and deliver to the railway*company a proper deed of conveyance thereof. Certain exceptions to a master's report were sustained, and the court ordered that in all other respects the report be confirmed, and adjudged and decreed that the Arkansas & Louisiana Railway Company have and recover of J. D. Beardsley the sum of $21,072.16, with interest from August 5, 1889; and, further, that it appearing to the court that since the rendition of the decree on the original bill the Arkansas & Louisiana Railway Company had issued and delivered to defendant J. D. Beardsley certificates for all the full-paid and nonassessable stock of the company ordered to be issued by the decree, thus making, with the full-paid and nonassessable stock issued prior to the decree, the aggregate amount of 5,120 shares, of the face value of $100 each, and that the defendant John D., since the rendition of the original decree, had sold and delivered to defendant Jay Gould 51 per cent. of the whole number of shares of stock, and had delivered the remaining 49 per cent. to A. L. Hopkins, as trustee, in pledge for the use and benefit of Gould, which delivery and pledge were in violation of the rights of complainant as adjudged in the original decree, upon the payment by complainant of the amount adjudged on the original bill to be due J. D. Beardsley, either to said J. D. Beardsley or his solicitor, the said J. D. Beardsley and Gould deliver and cause their trustee to deliver to complainant or to his solicitor of record, or into the registry of the court, certificates for 1,700 shares of the stock of the Arkansas & Louisiana Railway Company, of the face value of $100 each, of the stock so held by said trustee. It was further ordered and decreed that upon the payment by the Arkansas & Louisiana Railway Company of its debt to the defendant St. Louis, Iron Mountain & Southern Railway Company, for which certain of the bonds of the Arkansas

Company were held in pledge, and upon payment by complainant of his indebtedness to defendant J. D. Beardsley, the defendants, J. D. Beardsley, the St. Louis, Iron Mountain & Southern Railway Company, the Arkansas & Louisiana Railway Company, and Gould, and their trustee or trustees, deliver to complainant or his solicitor 80 of the 240 first mortgage bonds now held by the St. Louis, Iron Mountain & Southern Railway Company or its trustee as collateral security, and that the Arkansas & Louisiana Railway Company, after such payment, cause to be duly and properly certified 48 of the 144 earned, but uncertified, bonds of said Arkansas & Louisiana Railway Company, and deliver them to complainant or his solicitor. It was further ordered and decreed that each and all of the defendants be enjoined and restrained from carrying out any of the terms or conditions of certain specified agreements between J. D. Beardsley and Jay Gould which in any manner conflicted with the interests or rights of complainant, "as adjudged and declared in this decree, or with the decree heretofore rendered on original bill." And it was decreed that defendant J. D. Beardsley pay all the costs, including a part of the fees theretofore paid to the master, and that the costs of the receiver be paid by the Arkansas & Louisiana Railway Company.

The record contains the following entry June 16, 1891: "And now, on this day, comes the defendant John D. Beardsley, by J. M. Moore, Esq., his solicitor, and files his assignment of errors, and prays an appeal to the supreme court of the United States from the first decree rendered in this cause on the ninth day of May, 1891, which prayer for appeal is allowed." And on the same day J. D. Beardsley gave a supersedeas bond in the sum of $30,000, running to the Arkansas & Louisiana Railway Company alone, and reciting that "whereas, the above-named John D. Beardsley hath prosecuted an appeal to the supreme court of the United States to reverse the judgment rendered against him and in favor of the said Arkansas and Louisiana Railway Company in the above-entitled action by the circuit court of the United States for the Eastern district of Arkansas, in chancery," which bond was that day approved by Williams, J.

No citation was issued and served as far as appears, and the record was filed in this court June 22, 1891, the cause being docketed under the title of "John D. Beardsley, Appellant, vs. The Arkansas and Louisiana Railway Company."

J. M. Moore and A. H. Garland, for appellant. John J. Joyce, for appellee.

*Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

This appeal was perfected as to the Arkansas & Louisiana Railway Company only by the giving of bond as required by statute (Rev. St. $ 1000, 1012); and while the omission of

127

the bond does not necessarily avoid an appeal, if otherwise properly taken, and in proper cases this court may permit the bond to be supplied, no application for such relief has been made in this case, nor could it properly be accorded after the lapse of nearly four years since the decree. The appeal might, therefore, well be dismissed, because ineffectual as to complainant, Paul F. Beardsley.

But this must be the result on another ground. To the decree, Paul F. Beardsley was party complainant, and John D. Beardsley, the St. Louis, Iron Mountain & Southern Railway Company, Jay Gould, and the Arkansas & Louisiana Railway Company were parties defendant.

It is settled, for reasons too obvious to need repetition, that in equity causes all parties against whom a joint decree is rendered must join in an appeal, if any be taken; but this appeal was taken by John D. Beardsley alone, and there is nothing in the record to show that his codefendants were applied to and refused to appeal, nor was any order entered by the court, on notice, granting a separate appeal to John D. Beardsley in respect of his own interest. The appeal cannot be sustained. Hardee v. Wilson, 146 U. S. 179, 13 Sup. Ct. 39; Davis v. Trust Co., 152 U. S. 590, 14 Sup. Ct. 693.

Appeal dismissed.

(158 U. S. 128)

WHITE et al. v. MILLER et al. (May 6, 1895.) No. 103.

PARTNERSHIP - BILL FOR ACCOUNTING BILL TO SUBJECT REAL ESTATE OF INFANT HEIRS ADMISSIONS BY GUARDIAN AD LITEM-CONSENT DECREES-LACHES.

1. A bill brought by a surviving partner to settle the affairs of the partnership must be regarded as an entirely separate proceeding from a suit subsequently brought pursuant to the Maryland statute of 1785 (chapter 72), in force in the District of Columbia. to subject real estate of the deceased partner, which had descended to his heirs, to the payment of debts; and the fact that the latter bill is styled a "supplemental bill" cannot operate to deprive the defendants therein of any right, or prevent them from pleading the statute of limitations, where the period of limitations has run to completion between the dates of filing the two bills.

2. Admissions as to matters of fact made by the guardian ad litem are not binding upon the infants, and decrees entered upon such admissions, unsupported by any proofs, do not conclude them.

3. If infant defendants are to be estopped by the consent of a solicitor to the entry of a decree, as against their submission of their rights to the protection of the court, the fact that they were actually represented by the solicitor should be made to appear, either by formal entry of record, or by evidence showing the fact; and the same cannot be inferred by the fact that such solicitor, having been employed by certain adult defendants, styled himself as solicitor "for the defendants."

4. After a bill of review had been pending over four years, complainants therein filed a petition asking leave to withdraw an answer containing admissions which had been made the basis of the decree sought to be reviewed. The entire period which elapsed between the filing of the an

swer and of the petition to withdraw it was over six years, and no fraud or collusion was shown. Held that, as against such of the petitioners as were adults at the time of filing the answer, this unexplained delay was sufficient to prevent the court from granting the prayer of the petition.

Appeal from the Supreme Court of the District of Columbia.

On November 29, 1871, Andrew J. Joyce filed his bill of complaint in the supreme court of the District of Columbia against Mary White, administratrix of Patrick White, deceased, and Francis P. White, Mary S. White, James R. White, Lewis C. White, and Charles A. White, infants, and Mary White, widow of the said Patrick White, stating that the complainant and the defendants were residents of the District of Columbia; that Patrick White died intestate in March, 1871, leaving his widow, Mary White, and the said infants, his heirs at law, and leaving also another son, Robert E. White, who had since died unmarried and without issue; and that Mary White was appointed administratrix of Patrick White. The complainant averred that on or about June 1, 1858, he and Patrick White formed a partnership in the grocery business in the city of Washington, in pursuance of a written agreement entered into between them on that day (a copy of the same being filed with the bill), which was to continue for seven years. It was agreed between the partners, the bill alleged, that Patrick White was to keep the books of the firm; that the firm name should be P. White & Co.; that the capital should be $3,000, to be paid in by the partners in equal portions; that, as the complainant was engaged in other business, he should employ a competent person to represent him in the business of the said firm; that Patrick White should have entire charge of the business, keep proper accounts, and sign all checks, drafts, and notes having relation to the partnership business, and none others; that Patrick White should give a full statement and account of the business, and make a settlement with the complainant, whenever required so to do. It was alleged that the partners further agreed, as appeared by an instrument of writing filed with the bill, that neither member of the firm should indorse any note, or sign any bond, mortgage, or other instrument, by which either might become liable for the payment of any money.

The bill alleged that the partnership commenced on June 1, 1858, and that the complainant, with the consent of Patrick White, employed John J. Joyce to represent him in the business, and fully complied with all the said agreements; that after the expiration of the said seven years the partnership was continued for a further term of five years, by an agreement in writing which was filed with the bill; that the partnership terminated on June 1, 1870, except as to a settlement of the partnership affairs; that

during the time the business was carried on no settlement thereof was ever made, or account thereof stated; that Patrick White undertook within that time to state such an account, but died before it was completed; that during the lifetime of Patrick White, and with his consent, the complainant employed two competent bookkeepers to make a statement of the effects and transactions of the firm for the use of the partners, but that, owing to the death of Patrick White, they were compelled to cease their work. The complainant stated that he had in his possession at the time of the filing of his bill of complaint a number of the books and papers of the partnership, which had been delivered to him by Mary White since the death of her husband; and he prayed that she might be required to produce, with her answer in the cause, all other books and papers of the firm which might be in her possession. He further stated that he was informed and believed that the partnership was indebted to various persons, but did not know who any of them were, except one firm, in Philadelphia.

The complainant then showed that Patrick White had purchased a certain parcel of land in the city of Washington to secure a debt due the firm, and that afterwards he and his wife, Mary White, executed a deed of one undivided moiety of the said land to the complainant, his heirs and assigns, and that in January, 1869, a debtor of the firm, on account of his indebtedness, conveyed to the complainant and Patrick White (trading as P. White & Co.), as tenants in common, a certain other parcel of land in the said city. He stated that the said real estate was part of the assets of the partnership, and should be sold to pay the firm's debts. He averred that since the death of Patrick White he had collected the sum of $1,000 due to the partnership, for which he was ready to account, and stated that he would endeavor to collect all other debts due to the same. He prayed that the defendant Mary White might discover if she had collected any debts due to the firm, and, if so, from whom collected, and the amounts thereof. Finally, the complainant alleged that the said real estate, of one undivided moiety of which Patrick White died seised, was not susceptible of partition among the heirs at law of Patrick White, and that it would be to the interest and advantage of the complainant and the defendants that the same be sold, and the proceeds thereof first applied to the payment of the partnership debts, and the balance, if any, distributed among the parties to the

cause.

The complainant prayed that the cause might be referred to the auditor of the court to state an account of all the effects and transactions of the firm; that the complainant might have the right to surcharge and falsify, if need be, the books, accounts, and vouchers of the business; that the complain

ant might have paid to him any money found to be due to him; that an account might be taken from the commencement to the end of the partnership; that the auditor might have power to advertise for all creditors of the firm to appear before him and prove their claims, and that the complainant might have the right to deny and plead to the same; that the said real estate might be sold, and the proceeds thereof applied to the payment of the partnership debts, and that after the payment thereof any of the proceeds remaining might be distributed among the parties to the cause according to their respective rights; and that on a final settlement of the partnership account the complainant might have whatever should be found to be due to him charged against the estate of Patrick White.

On December 23, 1871, the court appointed James White guardian ad litem of the infant defendants, and he filed an answer on January 5, 1872, signed by himself in person, submitting the rights of the infants to the protection of the court, and stating that he could not admit or deny the allegations of the bill.

On January 3, 1872, R. T. Merrick, Esq., entered his appearance for the defendants in the cause.

Mary White filed her answer as administratrix on January 30, 1872, admitting that Patrick White died intestate, and that she was duly appointed administratrix of his personal estate, and had entered upon the duties of her office. She averred that she knew nothing of the matters set out in the bill relating to the said partnership, and that she had no books or papers of the firm in her possession, except two papers which she filed with her answer, and which she believed to be of no value. She admitted the allegations of the bill with regard to the said real estate, and that it constituted assets of the partnership, and stated that she was willing that the property should be sold, but that she did not admit that a sale of the same was necessary for the payment of the said debts. She averred that she had not collected any debt or claim due to the firm of P. White & Co. on account of the partnership business. She stated that she did not know whether the said real estate was or was not susceptible of partition, or whether it would or would not be to the advantage of all the parties that the same be sold. As to all the matters set out in the bill, of which the defendant stated herself to be in ignorance, she called upon the complainant to make proof. Finally, she prayed to have the benefit of the statute of limitations with regard to the partnership affairs which were carried on under the first agreement alleged to have been entered into by the complainant and Patrick White, by the terms of which the partnership existing thereunder terminated on June 1, 1865.

Issue was joined on February 20, 1872, and