none, we would then have a case where a release is comprehensive enough to cover a matter or claim unknown to both parties, and was therefore not the subject of consideration. Equity relieves from mistakes as well as frauds. The case is not one where it was sought to compromise and settle a general claim for all the injuries resulting from a particular accident, known and unknown. If one agrees that he will receive a given amount in satisfaction and settlement of his damages sustained through a particular accident, it is not essential that every possible consequence of the tort shall be mentioned, considered, or enumerated. The subsequent discovery by one giving such a release that he was worse hurt than he had supposed would not, in and of itself, be ground for setting aside the settlement or limiting the release. We put our judgment upon the facts stated in this bill, to wit, that both parties supposed complainant had received certain injuries, the extent and character of which were considered and discussed with reference to the time which the injured party would probably lose in consequence thereof. In such a case, if a release is given, specifically mentioning the particular injuries known and considered as the basis of settlement, general language following will be held not to include a particular injury then unknown to both parties, of a character so serious as to clearly indicate that, if it had been known, the release would not have been signed. This jurisdiction is well known, and has frequently been applied in cases of release affecting property rights, both in courts of law and equity."

In Houston & T. C. R. Co. v. Brown (Tex. Civ. App.) 69 S. W. 651, a release of damages for a broken arm was made by a railroad employé in reliance upon the statement of a physician acting for the railroad company, made for the purpose of inducing the execution of the same, that the bones of the arm had knitted together, and that the arm would be as good as ever. It was held that the release was not binding upon the employé, even though the statement of the physician was made in good faith. The court said:

"We cannot agree with the contention of appellant that it may escape liability on the ground that the representations and statements made by Stewart was a mere expression of opinion. It was more than an opinion. It was the statement of a fact. It is true, this statement may have been pred

icated upon his opinion as a medical expert, but the opinion is based upon facts of which he possessed knowledge. The fact that the statement made by Stewart was not intentionally false does not affect the right of the appellee to have the release set aside, if he was misled by the statement, and executed the release, believing the statement was true. In such a case, innocent misrepresentations may as well be the basis of relief as where such statements are intentionally false."

The appellant relies on Chicago & N. W. Ry. Co. v. Wilcox, 116 Fed. 913, 54 C. C. A. 147. The plaintiff in that case had suffered a fracture of the femur. Her physician was also the physician of the railway company. She was told that it was a bad break, and was advised by the physician of the railway company that she would be incapacitated for at least a year; that the injury would be slow to repair, if it did repair, and that there was no certainty of her ever entirely recovering; and that such an injury resulted generally in permanent disability. When she talked of making a settlement, he advised her that the better plan would be to wait until she saw the extent of her injury. Disregarding this advice, she made a settlement with the railway company; and subsequently, finding that her injury was greater than she had supposed, she brought suit to set aside the settlement. The court, in the course of its opinion, said:

"But compromises and releases are not voidable on this account, for the reason that the parties to them know the uncertainty of these future events.

and, by the very fact of settlement before they develop, agree to take the chances of their effects. Their mistakes relative to the future duration of the disabilities and the future effects of the personal injuries that form the subject of their contracts are mistakes of belief, not of fact, and form no basis for the avoidance of their contracts. Such was the mistake under which the complainant labored. It was a mistake in the opinion of the doctor and in the belief of his patient with reference to unknowable future events. It was not a mistake of a past or of a present fact, and it presents no ground for a rescission of this release."

The difference between that case and the present case is apparent and is vital. In the Wilcox Case there was no mistake as to the nature of the injury. Mrs. Wilcox was not assured by the railway company's physician that she would be well within a year, or that she would ever recover. On the contrary, she was advised to await future developments before making a settlement. Her belief that she would recover, and the opinion of her physician that she might recover within a year, were matters of mere conjecture and opinion. In the present case there was a clear mistake of fact as to the nature of the injury. The appellant's physician believed, and so informed the appellee, that the injury to his head was a scalp wound, whereas it was a far more serious injury—an injury to the skull, causing necrosis of the bone, necessitating a surgical operation, and producing traumatic neurosis, effects that could not have resulted from a mere wound of the scalp.

All the decisions cited by the appellant are believed to be in harmony with the views we have above expressed. It is unnecessary to consider them all in detail. In Currier v. Bilger (Pa.) 24 Atl. 168, the court said:

"There was no mutual mistake of the parties as to any material fact. The only fact in the case was that the plaintiff's horse had been gored by the defendant's bull. As to this there was no mistake. Each party was fully informed."

'In Kowalke v. Milwaukee Electric Railway & Lighting Co. (Wis.) 79 N. W. 762, 74 Am. St. Rep. 877, the plaintiff was injured by jumping from a car. She had her own physician, and was also examined by the railway company's physician. There was no mistake as to the injuries she received. The mistake was as to her pregnancy at the time. She informed the physicians that she was not pregnant, and refused to submit to an examination. The court said:

"Where a party enters into a contract, ignorant of a fact, but meaning to waive all inquiry into it, or waives an investigation after his attention has been called to it, he is not in mistake, in the legal sense."

In Seeley v. Citizens' Traction Co. (Pa.) 36 Atl. 229, the plaintiff, on her own motion, made the settlement; being ignorant of the character and extent of her injuries, but not relying on any statement of the defendant or examination by the defendant's physician. In Homuth v. Metropolitan St. Ry. Co. (Mo. Sup.) 31 S. W. 903, the plaintiff's wife was injured on the defendant's railroad track. The defendant's physician called on her, and, in answer to her question, said he thought her foot would be well in 14 days. Her own doctor, who was present, expressed a similar opinion, and settlement was effected on that understanding. Here it is clear that there was no mistake of fact, but a mistake of opinion, and that presumably the plaintiff relied on the opin

ion of her own physician. The case most nearly approaching in its facts the case at bar is Houston & T. C. R. Co. v. McCarty (Tex. Sup.) 60 S. W. 429, 53 L. R. A. 507, 86 Am. St. Rep. 854. In that case the appellee was hurt in a wreck upon a railroad. It was supposed that his only injury was a dislocation of the ankle. He made a settlement of his claim against the railway company in full of all injuries. No other injuries were considered by the parties to the settlement, and the appellee relied upon no examination or opinion of the appellant's physician. The court said:

"Neither the appellant's agents nor appellee knew or suspected injury to another part of appellee's person, and appellee exercised reasonable care to ascertain if he was otherwise injured."

It transpired that he had suffered severe internal injuries. The court sustained the release, and distinguished the case from Lumley v. Wabash R. Co., supra. The facts that the appellee in the McCarty Case exercised reasonable care to ascertain if he was otherwise injured, and that he relied upon no statement or examination of the appellant's physician, are sufficient to distinguish it from the present case. The decree of the Circuit Court is affirmed.

TYEE CONSOLIDATED MIN. CO. v. LANGSTEDT. (Circuit Court of Appeals, Ninth Circuit.

No. 1,098.

1. ALASKA CODES-LIMITATIONS-APPLICATION.

March 6, 1905.)

Carter's Alaska Codes, approved June 6, 1900, § 1042, provides that adverse possession under color of title for seven years shall be conclusively presumed to give title, except as against the United States; and page 146, § 4, limits actions to recover real property to a period of ten years before commencement of the action, but declares that in all cases where a cause of action has already accrued, and the period prescribed within which an action may be brought has expired or will expire within one year from the approval of the act, an action may be brought within one year from the date of the approval of the act. Held, that where an action to recover possession of a mining claim in Alaska was brought on December 24, 1900, section 1042 was not applicable thereto.

2. SAME-UNITED STATES LAND LAWS-RIGHTS OF GRANTEE-LIMITATIONS. Limitations begin to run against a grantee under the general land laws of the United States only from the date when he acquires title. 3. SAME-ADVERSE POSSESSION-DISSEISIN.

Since there could be no adverse possession of public land on which a mining claim was located while the title was in the United States, there was no disseisin sufficient to start the statute of limitations in operation, as against the locator of such claim, prior to the issuance of a government patent to him therefor.

4. SAME.

Where a locator of a mining claim on public land had complied with all the conditions necessary to entitle him to a patent, his estate in the land was not perceptibly different from that acquired by entrymen of agricultural land.

In Error to the United States District Court for the First Division of the District of Alaska.

See 121 Fed. 709.

The plaintiff in error, the Tyee Consolidated Mining Company, brought an action in ejectment against Ernest Langstedt, the defendant in error, to recover the possession of a tract of land which was alleged to be a portion of the Bonanza King lode claim, located by a grantor of the plaintiff in error, and of which the plaintiff in error became the owner by mesne conveyances. The defendant in error answered, denying the allegations of the complaint, and alleging that the defendant in error and his grantors and predecessors in interest have been in the actual, open, notorious, visible, continuous, exclusive, and adverse possession of the property in controversy for a period of more than 10 years prior to the commencement of the action, and that during that entire period the defendant in error and his grantors have claimed to be the owners of said tract of land under color and claim of title, and that the plaintiff in error and its grantors and predecessors have not been seised or possessed of the premises for more than 10 years prior to the commencement of the action. Upon the issues so made, and the evidence and stipulation of the parties as to the facts of the case, a jury having been waived, the court below made the following findings of fact: That the Bonanza King lode claim was duly located as a mining claim on January 29, 1884, by one Walter Pierce; that on May 13, 1884, he conveyed the same to M. W. Murray; that a receiver's receipt issued to Murray on May 20, 1890, and that United States patent issued to him on December 26, 1890; that thereafter the said lode claim was conveyed to the plaintiff in error; that the defendant in error and his grantors and predecessors in interest have been in the actual, open, notorious, visible, continuous, exclusive, and adverse possession of the premises in controversy, under color and claim of title, for a period of more than 10 years prior to the commencement of the action, and that during that period and ever since they have claimed to be the owners of said land, and their possession has been adverse and hostile to the plaintiff in error; that the plaintiff in error, its predecessors in interest, and grantors, have not been seised or possessed of the premises within 10 years before the commencement of the action. Upon those findings the trial court caused judgment to be entered dismissing the action, and adjudging that the defendant in error recover his costs and disbursements.

R. F. Lewis, E. S. Pillsbury, and Pillsbury, Madison & Sutro, for plaintiff in error.

W. E. Crews and J. A. Hellenthal (Lorenzo S. B. Sawyer, of counsel), for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT, Circuit Judge, after stating the case as above, delivered the opinion of the court.

The writ of error presents the question whether, in the territory of Alaska, adverse possession of a mining claim, as against the locator thereof, or his successors in interest, can be initiated at any time before the issuance of a patent from the United States therefor.

Section 1042 of Carter's Codes of Alaska (page 354) provides as follows:

“The uninterrupted adverse notorious possession of real property under color and claim of title for seven years or more shall be conclusively presumed to give title thereto except as against the United States."

Section 4 of the same Codes, at page 146, provides that actions shall be commenced within 10 years—

"For the recovery of real property, or for the recovery of the possession thereof; and no action shall be maintained for such recovery unless it shall appear that the plaintiff, his ancestor, predecessor, or grantor was seized or possessed of the premises in question within ten years before the commence-

ment of the action: provided, in all cases where a cause of action has already accrued, and the period prescribed in this section within which an action may be brought has expired or will expire within one year from the approval of this act, an action may be brought on such cause of action within one year from the date of the approval of the act."

The Codes in which these provisions are found were approved on June 6, 1900. The present action was begun on December 24, 1900. It is plain that the provision first above quoted has no application to the present case. This is made clear by the proviso of section 4, above quoted, which extends the right of action for a period of one year from the approval of the act, and by that portion of section 368, p. 432, of the Codes, which declares that "no person shall be deprived of any existing legal right or remedy by reason of the passage of this act." Prior to the adoption of the Codes, adverse possession, in order to give title, was required to be continuous for a period of 10 years. Parker v. Metzger, 12 Or. 407, 7 Pac. 518.

It is well settled that the statute of limitations begins to run against a grantee under the general land laws of the United States only from the date when he acquires the title, and that an occupancy by another prior to that time will not be deemed adverse to the title of such grantee. But there is diversity of opinion as to the precise time when the title passes from the government to an entryman upon the public lands. In the majority of cases it is held that no title passes until the patent issues. Redfield v. Parks, 132 U. S. 239, 10 Sup. Ct. 83, 33 L. Ed. 327; Simmons v. Ogle, 105 U. S. 271, 26 L. Ed. 1087; Gibson v. Chouteau, 13 Wall. 92, 20 L. Ed. 534; Godkin v. Cohn, 80 Fed. 458, 25 C. C. A. 557; Mathews v. Ferrea, 45 Cal. 51; Smith v. McCorkle, 105 Mo. 135, 16 S. W. 602; Steele v. Boley, 6 Utah, 308, 22 Pac. 311; Treadway v. Wilder, 12 Nev. 108; Stephens v. Moore, 116 Ala. 397, 22 South. 542; Schuttler v. Piatt, 12 Ill. 417; Clark v. Southard, 16 Ohio St. 408; Churchill v. Sowards, 78 Iowa, 472, 43 N. W. 271.

In some courts, however, it has been held that the title passes to such an entryman as soon as he has complied with all the conditions requisite to entitle him to a patent, and that at that point of time an adverse possession may have its inception. Carroll v. Patrick, 23 Neb. 847, 37 N. W. 671; Dolen v. Black, 48 Neb. 688, 67 N. W. 760; Cady v. Eighmey, 54 Iowa, 615, 7 N. W. 102; Mills v. Traver, 35 Neb. 292, 53 N. W. 67; Cawley v. Johnson (C. C.) 21 Fed. 492; Nichols v. Council, 51 Ark. 26, 9 S. W. 305, 14 Am. St. Rep. 20; Gay v. Ellis, 33 La. Ann. 249; Doe v. Hearick, 14 Ind. 242; Goodlet v. Smithson (Ala.) 30 Am. Dec. 561; Udell v. Peak (Tex. Sup.) 7 S. W. 786.

It is contended that a controlling consideration on which the decisions of the United States courts above cited are based is the fact that in those courts no action of ejectment can be instituted upon the equitable title evidenced by a certificate of purchase or final receiver's receipt, and that that rule is not applicable to the present case, for the reason that in the courts of Alaska ejectment may be maintained by one who has acquired such equitable title. By the act of Congress of May 17, 1884 (23 Stat. 24), the Code of Civil Procedure of the state of Oregon was declared to be the law of Alaska so far as the same was