United States has made settlement and improvements thereon, and has filed his affidavits in the proper land office, showing his settlement, residence, improvements, and nonalienation thereof, and also his affidavit of his right to commute the same to a cash entry under section 2301, Rev. Stat. U. S., and afterwards executes a mortgage on the land to procure money to pay the commutation price, such a mortgage is held to be valid. McFall v. Murray, 4 Kan. App. 554 (45 Pac. Rep. 1100). In Nevada it is held that U. S. Rev. Stat., § 2296, which provides "that no lands acquired under the provision of this chapter shall in any event become liable to the satisfaction of any debts contracted prior to the issuing of a patent therefor," does not prohibit a voluntary incumbrance of a homestead by mortgage, before final proof, the statute (Gen. Stat., § 3284) of that state providing that a mortgage is not an alienation, but a mere security for a debt. Orr v. Ulyatt, 23 Nev. 134 (43 Pac. Rep. 916), citing numerous cases. But in Kansas such a mortgage is held to be void. Biddle v. Adams, 5 Kan. App. 734 (46 Pac. Rep. 986). Under U. S. Rev. Stat., § 2296, land acquired as a homestead is not liable for a debt contracted by the applicant after final proofs are made and before the issuance of a patent. Wallowa Nat. Bank v. Riley, 29 Ore. 289 (45 Pac. Rep. 766), following Barnard v. Boller, 105 Cal. 214 (38 Pac. Rep. 728), and disapproving Struby-Estabrook Mercantile Co. v. Davis, 18 Colo. 93 (31 Pac. Rep. 495). Where a homestead patentee has conveyed the lands to another who subsequently reconveys to him, the land loses its homestead character and becomes liable for the debts of the patentee contracted prior to the issuance of the patent. De Laney v. Knapp, 111 Cal. 165 (43 Pac. Rep. 598; 52 Am. St. Rep. 160). The exemption from debts extends to timber culture claims. Nash v. Farmers & Merchants Bank, 3 Kan. App. 694 (44 Pac. Rep. 907).

Sec. 666. Timber culture claims. Land acquired from the United States under the timber culture act cannot be seized, against the will of the owner, and sold on execution, for the satisfaction of a debt contracted prior to the issuing of the final certificate therefor. Nash v. Farmers & Merchants Bank, 3 Kan. App. 694 (44 Pac. Rep. 907). Where one

who has entered a timber culture claim dies before he has performed all the conditions precedent to his obtaining title, his rights in the claim are not devisable but pass to his heirs who must be determined by the law of the state in which the land is situated and they take equally. Cooper v. Wilder, 111 Cal. 191 (43 Pac. Rep. 591; 52 Am. St. Rep. 163).

Sec. 667. Patents-Presumptions-Priorities-Cancellation. A patent for public lands is prima facie valid, and implies the existence of every fact essential to its validity. Richards v. Griffith, 57 Kan. 234 (45 Pac. Rep. 600); Tennessee Coal I. & R. Co. v. Tutwiler, 108 Ala. 483 (18 So. Rep. 668). Where a patent has been issued under U. S. Rev. Stat., § 2269, to the heirs of a deceased preemptor dying without having consummated his claim, their title is superior to that of a grantee of the preemptor holding under a conveyance executed after final proof. Tennessee Coal I. & R. Co. v. Tutwiler, 108 Ala. 483 (18 So. Rep. 668). It appearing from the evidence dehors two or more conflicting patents, which were issued by the register of the state land office for the same land, to different parties, at different dates, that those last issued were predicated upon prior locations made under internal improvement certificates in due form of law, and those first issued were not founded upon sufficient proofs, the last in date of issuance will reflect the paramount title. Broussard v. Pharr, 48 La. 230 (19 So. Rep. 272). The fact that the mortgagee of the holder of a patent certificate may not have had notice of the proceedings to cancel such certificate, or any opportunity to be heard therein, does not render void the action of the land department in canceling such certificate, but merely entitles him to a hearing on the question of the legality of the original entry in a proper action in court. In such action the burden of proof is upon him to make out a prima facie case, the certificate after cancellation being no longer any evidence to support his claim. Guaranty Sav. Bank v. Bladow, 6 N. Dak. 108 (69 N. W. Rep. 41). A patent issued by mistake which is recalled and cancelled before any acceptance does not pass any title from the United States, Wood v. Pittman, 113 Ala. 207 (20 So. Rep. 972).

Sayles' Tex. Civ. Stat., art. 3961, construed and appliedissuance of patent in the name of person deceased-community property-rights of heirs. Cole v. Grigsby, 89 Tex. 223 (35 S. W. Rep. 792).

Sec. 668,

Construction of local statutes. Construing Cal. Const., Art. 17, § 3, providing that lands" suitable for cultivation" can be granted only to actual settlers, it is held that whether land is "suitable for cultivation" or not is a question of fact; and land is not necessarily unsuitable for cultivation because it does not produce ordinary agricultural products in average quantities." Albert v. Hobler, 111 Cal. 398 (43 Pac. Rep. 1104). Particular fact case in which the resolution of the board of county commissioners did not authorize the execution of a particular deed. Weston v. Moody, 37 Fla. 473 (19 So. Rep. 880). For construction of particular Spanish land grants, see Richardson v. Sullivan's Ex'rs, 38 Fla. 90 (20 So. Rep. 815); Sheldon v. Milmo, 90 Tex. 1 (36 S. W. Rep. 413). 1 N. Y. Rev. Stat., p. 198, § 6; Laws, 1855, ch. 427, §§ 83-85, construed and applied-failure of title to lands granted by the state-refunding purchase money— mandamus. People v. Com'rs of Land Office, 149 N. Y. 26 (43 N. E. Rep. 418). Ohio Act, Feb. 4, 1825 (2 Chase Stat., p. 1472); Act Feb. 7, 1826 (24 Ohio Laws, p. 58), construed and applied-title of state to lands acquired for canal. State v. Snook, 53 O. St. 521 (42 N. E. Rep. 544). Tenn. Acts, 1821, ch. 9, construed and applied-grant from state-signature of governor-conclusiveness of recitals-abandonment of title-adverse possession. Calloway v. Sanford, Tenn.

(35 S. W. Rep. 776). Tex. Act Apr. 14, 1883, as amended by the 24th legislature, construed and applied-. illegal issue of patents by state-refunding purchase money-mandamus. Depoyster v. Baker, 89 Tex. 155 (34 S. W. Rep. 106). Tex. Const., art. 14, § 2, construed and applied―void patent of state lands-decree of annulment. Faulk v. Sanderson, 89 Tex. 692 (36 S. W. Rep. 403). Tex. Const., art. 14, § 6; Sayles' Civ. Stat. tit. 79, ch. 9, construed and appliedacquisition of donation homestead. Roberts v. Trout, Tex. Civ. App. (35 S. W. Rep. 323). Transfer of military land warrant-title acquired by. Culmell v. Borroum,

Tex. Civ. App.

(35 S. W. Rep. 942); Borroum v.

Culmell, 90 Tex. 93 (37 S. W. Rep. 313).

Sec. 669. Miscellaneous notes. The congress of the United States is vested with absolute power to dispose of the public lands belonging to the United States, and to prescribe the conditions upon which the title thereto shall be conveyed. Nash v. Farmers' & Merchants' Bank, 3 Kan. App. 694 (44 Pac. Rep. 907). For an extended discussion of the power of the land department to cancel an entry after issuance of a final certificate and before issuance of patent, see Caldwell v. Bush, Wyo. (45 Pac. Rep. 488); Guaranty Sav. Bank v. Bladow, 6 N. Dak. 108 (69 N. W. Rep. 41). A prior claimant who has permitted another to occupy a portion of the land for five years making improvements thereon, cannot maintain a mandatory injunction to dispossess such occupant pending the determination of their rights in the land, by the land department. Proctor v. Stuart, 4 Okla. 679(46 Pac. Rep. 501). Particular possession held insufficient to entitle one to enjoin another from making a homestead entry on lands. Caldwell v. Bush, Wyo. (45 Pac. Rep. 488; 46 Pac. Rep. 1092). One who accepts a grant of school lands from the state which is made expressly subject to "any vested and accrued water rights" cannot recover damages for land previously appropriated to the construction of an irrigating ditch over said lands. Farmers' High Line Canal & Res. Co. v. Moon, 22 Colo. 560 (45 Pac. Rep. 437). A trespasser on public lands is for some purposes deemed the owner but when one asserts riparian rights as against an upper appropriator of water he must show some right inchoate or otherwise, to the land. Silver Creck & P. L. & W. Co. v. Hayes, 113 Cal. 142 (45 Pac. Rep. 191). Act Cong., July 23, 1866, § 7 (14 Stat. 220), construed and appliedrights of bona fide purchasers of lands held under Mexican grants. Warmouth v. Gardner, 112 Cal. 506 (44 Pac. Rep. 806). Act Cong., Feb. 12, 1889; Mont. Act, Mar. 5, 1885, construed and applied-grant of right of way through the Crow Indian reservation in Montana. State ex rel. Board of Com'rs v. State Board of Equalization, 18 Mont. 389 (45 Pac. Rep. 553). Act Cong., Feb. 28, 1891, construed and

applied-lease of lands held by the Indians on Uintah Reservation. Strawberry Val. Cattle Co. v. Chipman, 13 Utah 454 (45 Pac. Rep. 348). Shawnee Indian lands-title in severalty conveyance powers of secretary of interior. Ingraham v. Ward, 56 Kan. 550 (44 Pac. Rep. 14). Land certificate as evidence--presumptions. Huff v. Crawford, 89 Tex. 214 (34 S. W. Rep. 606.) As to burden of proof in a criminal prosecution for cutting timber on public lands, see United States v. Routledge, 8 N. M. 385 (45 Pac. Rep. 883.)

QUIETING TITLE.

EPITOME OF CASES.

Sec. 670. As to when the action will lie. An action to quiet title by cancellation of title papers as a cloud upon the claimant's title cannot be maintained by one who has neither a perfect paper nor prescriptive title. Flannery v. Hightower, 97 Ga. 592 (25 S. E. Rep. 371). One in the quiet and peaceable possession of land, under color of title, may maintain an action to quiet his title as against an adverse claimant who can not show a superior title. Prizer v. Taylor, 3 Kan. App. 690 (44 Pac. Rep. 902). It has been held that a grantor who has conveyed real property by warranty deed, with full covenants, and has delivered possession to the grantee, under an agreement with him that a part of the purchase money shall be deposited in the hands of a third person, not to be paid over until a cloud upon the title is removed, has sufficient interest in the subject-matter and in the land to maintain a bill in equity to remove the cloud, and to quiet the title. Styer v. Sprague, 63 Minn. 414 (65 N.W. Rep. 659). Construing and applying New Mexico Comp. Laws, § 2214, providing that "an action to determine and quiet the title of real property may be brought by any one having or claiming an interest therein, whether in or out of possession of the same, against any person claiming title thereto," it is held that the statute does not authorize a judg