Upon principle and authority, we think it clear that the bill filed May 24, 1882, seeking to subject the real estate of Patrick White which had descended to his heirs to the payment of debts, was essentially a new proceeding, in which it was competent for the heirs to plead the statute of limitations. Calling the bill a supplemental one would not deprive them of that right.

The record shows that, in the answer put in on behalf of the minors who were defendants by the guardian ad litem, it was alleged that "the said defendants, being infants of tender years, submit their rights to the protection of the court."

It is immaterial whether the effort to reach the real estate in the hands of the heirs by a so-called supplemental bill was or was not for the purpose of escaping from the operation of the statute of limitations. Even if the second bill were regarded as an amendment of the first, it would not deprive the defendants of their right to plead the statute of limitations, at least in equity. Bank v. Stevenson, 7 Allen,*489. By the statute in force in the District of Columbia (Acts Md. 1715, c. 23, § 2), the action was barred in three years, or on the 1st day of June, 1873. The second bill was filed on May 24, 1882,-nearly nine years after the suit was barred.

It is sufficient to say that it was the duty of the court to give the minor defendants the benefit of the statute. The act under which the proceedings were had provided that, before real estate which had descended to minor heirs could be sold to pay debts of the ancestor, "it shall appear to the chancellor to be just and proper that such debts should be paid by a sale of such real estate."

The answer of the minors, filed by the guardian ad litem, craved the protection of the court:

"The answer of an infant being expressed to be made by his guardian, the general reservation at the beginning, the denial of combination, together with the general traverse at the conclusion, common to all other answers, are omitted. The reason of this is that an infant is entitled to every benefit which can be taken by exception to a bill, although he does not make such reservation, or expressly make the exception. He is considered as incapable of entering into the unlawful combination, and his answer cannot be excepted to for insufficiency, nor can any admission made by him be binding." Story, Eq. Pl. § 871.

In Wright v. Miller, 1 Sandf. Ch. 109, it was held that the answer of an infant defendant by his guardian ad litem is not binding upon him, and no decree can be made on its admission of facts. Where relief is sought against infants, the facts upon which it is founded must be proved. They cannot be taken by admission. And Wrottesley v. Bendish, 3 P. Wms. 236, was cited to that effect. "Where there are infant defendants, and it is necessary, in order to entitle the complainant to the relief he prays, that certain facts

should be before the court, such facts, although they might be the subject of admission on the part of the adults, must be proved against the infants." 1 Daniell, Ch. Prac. 238; Mills v. Dennis, 3 Johns. Ch. 367.

This record discloses that no proof whatever was adduced to sustain the allegations of the second bill. The admissions of the answers were solely relied on.

It is, however, contended on behalf of the appellees that where a decree is signed by the court, with the consent of the party or of his solicitor, there can be no bill of review except for fraud or collusion; that, even in the case of infants, a decree entered with the consent of their solicitor cannot be set aside except on allegation and proof of fraud. And Walsh v. Walsh, 16 Mass. 377, and Thompson v. Maxwell, 95 U. S. 398, are cited to that effect.

To bring themselves within the scope of those cases the appellees assert that the minor defendants, by a solicitor of record, consented to the decree of September 12, 1882. This is denied by the appellants.

The issue upon this question is found in certain allegations of the bill of review, and in the answers thereto. The bill alleges that the order of May 24, 1882, giving leave to the complainant to file the supplemental bill, and which purports to have been passed by consent, was in the handwriting of the solicitor for the complainant; that the order of July 5, 1882, appointing Mary White, mother of the infant defendants, their guardian ad litem to answer said supplemental bill, does not show on whose motion the order was passed, and the order was in the handwriting of the solicitor for the complainant; that the answer filed on July 12, 1882, by Mary White, as guardian ad litem, was so filed by the guardian ad litem without an attorney or solicitor, and was entirely in the handwriting of the solicitor for the complainant; that the decree of September 12, 1882, appears by the record to have been passed when the minor defendants were not represented by any attorney or solicitor.

To these allegations the defendants in tue bill of review answer, acknowledging that said orders were in the handwriting of the solicitor for the complainant, and, as respects the answer of the guardian ad litem, they say: "We admit the said answer of the guardian ad litem is in the handwriting of the solicitor for the complainant, as alleged; and, in further answer, we are advised by said solicitor* that he, from the best of his knowledge, remembrance, and belief, prepared said answer at the request of said Mary White, guardian ad litem of said infant defendants, and that before she swore to and filed the same she submitted the same to Mr. Morris, solicitor of record in said cause for said defendants." And they further allege that "we are advised and believe, and, so believing, say, that said cause was heard by the court, on the statement of facts contained in the papers and proceed

ings in said cause given to the court by solicitor of complainant and the said defendants, and the decree was prepared by the solicitor of complainant, and was submitted to Mr. Morris, solicitor of defendants in said cause, who, on behalf of the said defendants, consented to the same, and was then signed by the court; and in further answer we say that we are informed and believe that Mr. Morris represented, as solicitor, on the hearing of said cause, not only the infant defendants and their guardian al litem, but also represented, as solicitor in said cause, the said Mary White and Francis P. White."

No evidence was taken by either party on this question. The answers can scarcely be regarded as responsive to the allegations of the bill, beyond the admissions therein contained that the orders and the answers of the guardian ad litem were in the handwriting of the solicitor for the complainant. The remaining statements were in the nature of avoidance, and, at any rate, only profess to be based on hearsay.

When we resort to the record of the case in which the supplemental bill was filed, and which forms part of the record before us, we fail to find any evidence that the infant defendants were represented by any solicitor. The answer put in on their behalf, and in which their rights are submitted to the protection of the court, purports to be filed by the guardian ad litem, and is not authenticated by the signature of any counsel. It is true that at the foot of the decree of September 12, 1882, and which, it may be observed, is not a final one, but merely an order of sale, there is the following entry: "I agree to the foregoing decree. M. F. Morris, Solicitor for Defendants."

But it is by no means a necessary inference from this writing that Mr. Morris either was, or represented himself to be, solicitor for the infants. The record shows that when the previous order of May 24, 1882, was made, grantIng leave to file the supplemental bill, Messrs. Merrick & Morris appeared as solicitors for the adult defendants, and consented to the filing of such bill. But it cannot be claimed that they thereby represented themselves to be entitled to represent the infants, because the bill itself shows that the infants were unrepresented, and prayed that a guardian ad litem should be appointed. The appointment of the guardian was subsequently made on July 5, 1882, when the first the infants were in court. If the infant defendants are to be estopped by the consent of a solicitor, as against their submission of their rights to the protection of the court, the fact that they were actually represented by a solicitor should be made to appear, either by a formal entry appearing of record, or by evidence showing such fact. It is contended in the brief of the appellees that such formal entry was made, by the filing of a praecipe, signed by R. T. Merrick, requesting the clerk to enter his appearance for the defendants, and it is said that it is well known

that Mr. Morris was Mr. Merrick's partner. It is enough to say that this appearance by Mr. Merrick for the defendants was entered on January 3, 1882, several months before the supplemental bill was filed. It would be strange reasoning that would find in such an appearance any right to appear for infant defendants in a bill not yet filed.

Nor can it be safely implied, from the fact that Mr. Morris styled himself as solicitor for the defendants, and appeared before the auditors as such, that he had been employed to act as solicitor for the infants. Such conduct was entirely consistent with the admitted fact that he was authorized to appear for the adult defendants.

Without pursuing the subject further, we reach the conclusion that the court below erred in dismissing the bill of review, so far as the minors were concerned, and that the decree should be modified so as to protect their interests in the estate which they inherited from the father, Patrick White.

*A different conclusion is necessary as respects Mary White, the mother, and Francis P. White, the adult son. The record discloses that on July 12, 1882, they filed a joint answer to the bill filed May 24, 1882, in which they admitted the allegations thereof; and on September 12, 1882, their solicitor, Mr. Morris, consented to the decree of that date. We per

ceive no proof of fraud or collusion affecting them; and in their petition of November 30, 1888, in which they prayed for leave to withdraw their answer, they do not aver that they were induced to answer as they did by reason of any misrepresentation or fraud practiced upon them. The long delay of six years from

the filing of their answer, and of more than four years from the bringing of the bill of review, is not satisfactorily explained; and, upon well-settled principles, a court of equity must leave them in the position in which they voluntarily placed themselves.

The decree of the court below is reversed, and the cause remanded, with directions to proceed in accordance with this opinion.

(158 U. S. 85)

WHITNEY v. TAYLOR.
(April 29, 1895.)
No. 278.

PUBLIC LANDS-RAILROAD GRANTS-RESERVATIONS
-PRE-EMPTION CLAIMS.

1. Act July 1, 1862 (12 Stat. 489), granted in aid of the Central Pacific Railroad land within certain limits "to which a pre-emption or homestead claim may not have attached." Prior to such grant, a pre-emption declaratory statement on land within the limits of such subse quent grant had been filed, which statement remained intact until after the final location of the road, when it was canceled, because claimant had never lived on the land. Held, that, nevertheless, the pre-emption claim had attached to the land within the meaning of the act, and hence such land was excluded from the grant, and was open to settlement after such cancellation. 45 Fed. 616, affirmed.

2. Where unsurveyed lands are claimed by pre-emption, failure to file notice of such claim

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within three months after the return of the plats of surveys to the land office, as required by Act 1853, § 6 (10 Stat. 246), does not vitiate the proceedings, and cannot be taken advantage of by one who had acquired no rights prior to the filing.

3. Act 1853, § 6, requires a pre-emption claimant to make proof and payment prior to the day appointed by the president's proclamation for the commencement of a sale, including such lands. The president's proclamation, appointing February 14, 1859, as the day for commencing the sale of public lands in certain townships, expressly excepted mineral lands therefrom. The land in controversy was held by the local officers to be mineral land, and, though included in such townships, was not offered for sale. Held that, under Act March 3, 1843 (5 Stat. 620), providing that a settler on unoffered land might make proof and payment at any time before the commencement of a public sale which should embrace his land, failure to make final proof and payment within the time limited by the president's proclamation did not render the pre-emption claim an "expired filing."

In Error to the Circuit Court of the United States for the Northern District of California.

Ejectment by Joel Parker Whitney against Frank C. Taylor. There was a judgment for defendant, and plaintiff brings error.

The controversy in this case is in respect to the title to the S. E. 4 of section 33, township 12 N., range 7 E., Mount Diablo meridian, in the state of California. The land is within the granted limits of the Central Pacific Railroad Company (12 Stat. 489), and the plaintiff claims under and by virtue of mesne conveyances from that company. The company filed its map of definite location on March 26, 1864, and fully constructed its road by the 10th of July, 1868. It demanded, but never received, a patent.

The title of the defendant rests on the following facts: On May 28, 1857, one Henry H. Jones, having paid the fees required by law in such cases, filed his pre-emption declaratory statement in the land office having jurisdiction over the premises, which declaratory statement was in the words and figures following:

"I, Henry H. Jones, of Placer county, being an American citizen, over the age of twentyone years, and a single man, have, on the 16th day of January, 1854, settled and improved the southeast quarter of section No. thirtythree (33) of township No. twelve north (12 N.), of range No. seven east (7 E.), Mt. Diablo meridian, in the district of lands subject to sale at the land office at Marysville, California, containing one hundred and sixty acres, which land has not yet been offered at public sale, and thus rendered subject to private entry; and I do hereby declare my intention to claim the said tract of land as a pre-emption right under the provisions of an act of congress of 3rd day of March, 1853.

"Witness my hand, this 22nd day of May, A. D. 1857. Henry H. Jones.

"In presence of V. E. Remington."

The filing of this statement was duly noted in the proper volume of tract books in the land office, and was the only record claim to

the premises prior to the time when the line of the Central Pacific Railroad was definitely fixed. The government survey was made intermediate the settlement by Jones, in 1854, and the filing of this statement. On April 18, 1856, a return of the official plat of such survey was made by the surveyor general for the state of California to the general land office at Washington, and during the same year a duplicate copy thereof was filed in the local land office. By such survey and return all the land in the township, including the premises in question, was ascertained and returned as agricultural and not mineral or swamp land, and not embraced in any government reservation. On June 30, 1858, the president issued his proclamation for the sale of lands in that land district, this tract included, naming February 14, 1859, as the time for the opening of the sale, and notifying all pre-emption claimants that their rights would be forfeited unless prior to such date they should establish their claims and pay for the lands they had given notice of their intention to pre-empt. The proclamation further declared that "no mineral lands or tracts containing mineral deposits are to be offered at the public sales, such mineral lands being hereby expressly excepted from sale or other disposal pursuant to the requirements of the act of congress approved March 3, 1853." The land officers under this authority withheld from offer and sale all of section 33, stating in their report, dated March 13, 1859, that the land was reserved as mineral land.

Some time after the filing of the map of definite location, the railroad company commenced proceedings against Jones to have his declaratory statement canceled. The decision of the local land officers, adverse to Jones, was transmitted to the commissioner of the general office, who, on December 23, 1886, affirming their decision, held that, "at the date when the route of the C. P. R. R. Co. was definitely fixed, a pre-emption claim had attached thereto (that of Jones), and, as the grant to said company expressly provided that lands to which a pre-emption claim had not attached were granted, it follows that lands to which such a claim had then attached were not granted.

Railway Co. v. Dunmeyer, 113 U. S. 629,

5 Sup. Ct. 566, and U. S. v. Union Pac. R. Co., 12 Copp. Pub. Land Laws, 161. That Jones' claim has been found to have been abandoned or invalid cannot operate to the railroad company's advantage, for the granting act did not provide that lands to which an unabandoned or valid pre-emption claim may not have attached were granted, but only that lands to which a pre-emption claim may not have attached were granted. The claim of Jones had attached when the railroad was definitely located, and, whether valid or invalid, excepted the land from the grant. The tract in question is therefore held to be subject to disposal as public land."

This decision was affirmed by the secretary of the interior on July 17, 1888. On August

28, 1888, the defendant made entry of the premises under the homestead laws of the United States. Subsequently, he commuted such homestead entry under section 2301, Rev. St., made his final proofs, paid the sum of $400, and obtained the government receipt therefor. With reference to the occupation and improvement of the premises by Jones this is the finding of the trial court:

"That Jones, from the time that he alleged settlement, in 1854, up to about 1859, cut some hay off from about four acres of the land in controversy, which he had inclosed with a brush fence. Jones cut off the brush on the ground in controversy to enable him to make the fence. At that time the country was open, and Jones pastured his cattle and sheep on the land in controversy, as well as over the surrounding country, but he never settled upon the land in controversy. He lived on section 4 adjoining. At the time of Jones' settlement the lines of survey were not generally known. Jones subsequently left the country to visit England about 1859, the exact date not being fixed, and never returned. His record filing remained intact on the records of the land office until canceled, as hereinbefore stated."

Upon the foregoing facts, the circuit court held that the land in controversy was at the time of defendant's homestead entry part of the public domain of the United States, and subject to disposal as public land, and, upon such conclusion, entered judgment in favor of the defendant. 45 Fed. 616.

B. E. Valentine, for plaintiff in error. C. W. Holcomb and Wm. J. Johnston, for defendant in error.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.

This case turns upon the question whether on March 26, 1864, at the time of the filing by the railroad company of its map of definite location, the tract in controversy was public land of the United States, and therefore passing under the grant to the company, or was excepted therefrom by reason of the previous declaratory statement of Jones. In Railway Co. v. Dunmeyer, 113 U. S. 629, 5 Sup. Ct. 566, one Miller had made a homestead entry on the land in controversy prior to the filing of the map of definite location. Thereafter he abandoned his homestead claim, and the contention was that such abandonment inured to the benefit of the company, and subjected the land to the operation of the grant; but this contention was denied, the court holding that the condition of the title at the date of the definite location determined the question as to whether the land passed to the railroad company or not, and, distinguishing Mining Co. v. Bugbey, 96 U. S. 165, said in reference to a homestead claim:

"In the case before us a claim was made and filed in the land office, and there recognized, before the line of the company's road

was located. That claim was an existing one of public record in favor of Miller when the map of plaintiff in error was filed. In the language of the act of congress, this homestead claim had attached to the land, and it therefore did not pass by the grant.

"Of all the words in the English language this word 'attached' was probably the best that could have been used. It did not mean mere settlement, residence, or cultivation of the land, but it meant a proceeding in the proper land office, by which the inchoate right to the land was initiated. It meant that by such a proceeding a right of homestead had fastened to that land, which could ripen into a perfect title by future residence and cultivation. With the performance of these conditions the company had nothing to do. The right of homestead having attached to the land, it was excepted out of the grant as much as if, in a deed, it had been excluded from the conveyance by metes and bounds."

In Railroad Co. v. Whitney, 132 U. S. 357, 10 Sup. Ct. 112, these facts appeared: At the time of the filing by the plaintiff railroad company of its map of definite location, there stood upon the records of the local land office a homestead entry of Bentley S. Turner. This entry was based upon an affidavit made by Turner, a soldier in the army of the United States, and actually with his regiment in the state of Virginia, which affidavit stated that Turner was the head of a family, a citizen of the United States, and a resident of Franklin county, New York. It did not state that Turner's family, or any member thereof, was residing on the land, or that there was any improvement made thereon, and, as a matter of fact, no member of his family was then residing, or ever did reside, on the land, and no improvement whatever of any kind had ever been made thereon by any one. The application for the entry was made through one Conwell, whom Turner had constituted his attorney for that purpose. At the time of making this entry, section 1 of the act of March 21, 1864 (13 Stat. 35; Rev. St. § 2293), was in force, which authorized one in the military or naval service of the United States, and therefore unable to do personally the preliminary acts required at the land office, whose family or some member thereof was residing on the land, and upon which a bona fide improvement and settlement had been made, to make the customary affidavit before his commanding officer, and upon that, the other provisions of the statute being complied with, to enter a tract of land as a homestead. It was held that, notwithstanding the defects in the affidavit, the tract was excepted from the scope of the grant, although the language of the granting act only excepted therefrom lands to which "the right of pre-emption or homestead settlement has attached." while the language of the granting act in the present case is, "to which a pre-emption or homestead claim may not have attached."

We quote from the opinion of Mr. Justice

Lamar as follows: "In Witherspoon v. Duncan, 4 Wall. 210, this court decided, in accordance with the decision in Carroll v. Safford, 3 How. 441, that 'lands originally public cease to be public after they have been entered at the land office and a certificate of entry has been obtained.' And the court further held that this applies as well to homestead and pre-emption as to cash entries. In either case, the entry being made and the certificate being executed and delivered, the particular land entered thereby bcomes segregated from the mass of public lands, and takes the character of private property. The fact that such an entry may not be confirmed by the land office on account of any alleged defect therein, or may be canceled or declared forfeited on account of noncompliance with the law, or even declared void, after a patent has issued, on account of fraud, in a direct proceeding for that purpose in the courts, is an incident inherent in all entries of the public lands." And after referring to the Dunmeyer Case, in which it was said that the entry when made was valid, "counsel for plaintiff in error contends that the case just cited has no application to the one we are now considering, the difference being that in that case the entry existing at the time of the location of the road was an entry valid in all respects, while the entry in this case was invalid on its face and in its inception; and that this entry, having been made by an agent of the applicant, and based upon an affidavit which failed to show the settlement and improvement required by law, was, on its face, not such a proceeding in the proper land office as could attach even an inchoate right to the land. * * * But these defects, whether they be of form or substance, by no means render the entry absolutely a nullity. So long as it remains a subsisting entry of record, whose legality has been passed upon by the land authorities, and their action remains unreversed, it is such an appropriation of the tract as segregates it from the public domain, and therefore precludes it from subsequent grants. In the case before us, at the time of the location of the company's road, an examination of the tract books and the plat filed in the office of the register and receiver or in the land office would have disclosed Turner's entry as an entry of record, accepted by the proper officers in the proper office, together with the application and necessary money,-an entry the imperfections and defects of which could have been cured by a supplemental affidavit, or by other proof of the requisite qualifications of the applicant. Such an entry attached to the land a right which the road cannot dispute for any supposed failure of the entryman to comply with all the provisions of the law under which he made his claim. A practice of allowing such contests would be fraught with the gravest dangers to actual settlers, and would be subversive of the principles upon which the munificent railroad grants are based. As was said in the Dunmeyer Case, supra: 'It is not

conceivable that congress intended to place these parties [homestead and pre-emption claimants, on the one hand, and the railway company, on the other] as contestants for the land, with the right in each to require proof from the other of complete performance of its obligation. Least of all is it to be supposed that it was intended to raise up, in antagonism to all the actual settlers on the soil whom it had invited to its occupation, this great corporation, with an interest to defeat their claims and to come between them and the government as to the performance of their obligations?'"

The same doctrine was applied in Bardon v. Railroad Co., 145 U. S. 535, 12 Sup. Ct. 856, to a pre-emption entry, though it is true that in that case payment had been made, and the final receipt issued prior to the filing of the map of definite location.

See, also, Newhall v. Sanger, 92 U. S. 761, in which case the mere existence of an alleged Mexican grant, valid or invalid, and the validity of which was under investigation before the proper tribunal at the time of the filing of the map of definite location of one of the Pacific roads (a beneficiary of the very act now before us), was held to exclude all lands within its boundaries from the operation of the congressional grant.

Although these cases are none of them exactly like the one before us, yet the principle to be deduced from them is that when on the records of the local land office there is an existing claim on the part of an individual under the homestead or pre-emption law, which has been recognized by the officers of the government, and has not been canceled or set aside, the tract in respect to which that claim is existing is excepted from the operation of a railroad land grant containing the ordinary excepting clauses, and this notwithstanding such claim may not be enforceable by the claimant, and is subject to cancellation by the government at its own suggestion, or upon the application of other parties. It was not the intention of con- * gress to open a controversy between the claimant and the railroad company as to the validity of the former's claim. It was enough that the claim existed, and the question of its validity was a matter to be settled between the government and the claimant, in respect to which the railroad company was not permitted to be heard. The reasoning of these cases is applicable here. Jones had filed a claim in respect to this land, declaring that he had settled and improved it, and intended to purchase it under the provisions of the pre-emption law. Whether he had in fact settled or improved it was a question in which the government was, at least up to the time of the filing of the map of definite location, the only party adversely interested; and, if it was content to let that claim rest as one thereafter to be prosecuted to consummation, that was the end of the matter, and the railroad company was not