against the United States and also a distinct offense against the State, do not apply here, where the two tribunals that tried the accused exert all their powers under and by authority of the same government-that of the United States.

But

It may be difficult at times to determine whether the offense for which an officer or soldier is being tried is, in every substantial respect, the same offense for which he had been previously tried. We will not therefore attempt to formulate any rule by which every conceivable case must be solved. passing by all other questions discussed by counsel or which might arise on the record, and restricting our decision to the above question of double jeopardy, we adjudge that, consistently with the above act of 1902 and for the reasons stated, the plaintiff in error, a soldier in the Army, having been acquitted of the crime of homicide, alleged to have been committed by him in the Philippines, by a military court of competent jurisdiction, proceeding under the authority of the United States, could not be subsequently tried for the same offense in a civil court exercising authority in that Territory. This is sufficient to dispose of the present case.

The judgment must be reversed, and the case remanded with directions to the Supreme Court of the Philippines to order the complaint or information in the Court of First Instance to be dismissed and the plaintiff discharged from custody.

It is so ordered.

ERROR TO THE SUPREME COURT OF THE STATE OF MONTANA.

No. 236. Submitted March 8, 1907.-Decided May 27, 1907.

Petition for rehearing in Love v. Flahive, 205 U. S. 195, denied.

A sale made by a party who is in possession of a tract of public land with an intent thereafter to enter it as a homestead is equivalent to a relinquishment of the right to enter, and the Department may properly treat the party making the sale as having no further claims upon the land. He may not sell and still have the rights of one who has not sold; nor does he by merely continuing in possession create a new right of entry against the party in whose favor he relinquished his right.

THE facts are stated in the opinion.

Mr. Thomas C. Bach, for petitioner.

Mr. S. M. Stockslager and Mr. George C. Heard, opposing.

MR. JUSTICE BREWER delivered the opinion of the court.

A petition for rehearing calls our attention to a misstatement in the opinion. We said that "it appears from the complaint and exhibits that during the time that these proceedings were pending in the Land Department, Love made a sale to James Rundell," etc. The facts are that in May, 1882, Love settled upon and occupied the tract in controversy with the purpose of entering it as a homestead; that the land was then unsurveyed public land; that it was not surveyed until 1888, and that on January 2, 1889, plaintiff for the first time filed in the Land Office an application for an entry. It further appears that the sale to Rundell was made in September, 1883, after the original settlement by the plaintiff, while the land was unsurveyed and before the application to enter. Hence it is not strictly true that while "proceedings were pending in the Land Department,

Love made a sale," for there was nothing of record or on file in that Department until after the entry.

Now the plaintiff contends that conceding that there was a sale and that thereby the plaintiff relinquished the right of entry which he had acquired by his settlement, yet thereafter without having abandoned the possession he filed his application in the land office; that that application must be considered as an entirely new proceeding initiated by one in actual possession, desiring to take the land as a homestead, and that it is error, and error of law, to adjudge it vitiated or affected by the prior sale.

Conceding that the effect of a sale prior to the application projects into the case a question of law, we are still of opinion that the decision of the Secretary was right, and that the award of the patent to Mrs. Flahive must be sustained. A sale made by a party who is in possession of a tract of public land with an intent thereafter to enter it as a homestead is equivalent to a relinquishment of his right to enter, and the Department may properly treat him as having no further claims upon the land. He may not sell and still have the rights of one who has not sold. He does not by merely continuing in possession create a new right of entry as against the party in whose favor he has relinquished his right.

We are of opinion, therefore, that the sale in 1883 was rightfully held by the Department to estop the plaintiff from subsequent entry of the land, at least as against one who was a purchaser from his vendee.

The petition for rehearing is

Denied

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF PORTO RICO.

No. 269. Argued April 19, 1907.-Decided May 27, 1907.

All the local law of Porto Rico is within the legislative control of Congress, and under § 8 of the Foraker Act, 31 Stat. 79, the local law remains in force until altered, amended or repealed by Congress or in the manner provided in the act, and cannot be disregarded by the courts. The local statutory law of real property in Porto Rico, requiring the giving and recording of a cautionary notice of a pending suit in order to affect third parties dealing with the recorded owner, not having been altered, amended or repealed, applies to a suit brought on the equity side of the District Court of the United States for Porto Rico, and notwithstanding the provisions of, § 34 of the Foraker Act, constructive notice of the pendency of such an action is not, in the absence of the cautionary notice required by the local law, operative against innocent purchasers. The District Court of the United States is not a constitutional court of the United States; its authority emanates wholly from Congress under the sanction of its power to govern territory occupying the relation that Porto Rico does to the United States.

THE facts are stated in the opinion.

Mr. Frederick L. Cornwell, for appellant, submitted: Under the laws of Porto Rico a conveyance of real property can neither be attacked nor rescinded where such property is legally in the hands of a third party who has not acted in bad faith. Civil Code, Rev. Stat., 1902, § 1262.

A bona fide possessor is deemed to be a person who is not aware that there exists in his title or the manner of acquiring it, any flaw invalidating the same." Civil Code, Rev. Stat., ed. 1902, sec. 436.

As appellant purchased the land in question after making due and diligent inquiry in the proper office as to the conditions of the title thereto, acquiring the title and possession thereof in good faith and in a legal manner, fraud, cheat or deceit

being absent from the transaction, he having no knowledge of any flaw in his title, and recorded the same according to law, his title and possession are unassailable. Mortgage Law, § 36.

Good faith is always presumed, and any person averring bad faith on the part of the possessor is bound to prove the same. Civil Code, Rev. Stat., ed. 1902, § 437.

The possessor who believes himself owner has in his favor the legal presumption that he possesses under a just title, and he cannot be compelled to show the same. Civil Code, Rev. Stat., ed. 1902, § 450.

Under these provisions the title of the appellant is unassailable, there being no inscription of the lis pendens and he being a purchaser in good faith.

In Porto Rico the registry of the property is the only office for the information of prospective purchasers of land as to conditions of title thereto, and one who purchases land in litigation from one of the parties to the suit acquires a good title if upon due search being made in said registry nothing is found that will affect the title to be acquired. Mortgage Law, article 42. Execution of the Mortgage Law, article 91; 1 Galindo & Escosura, Commentaries on the Mortgage Legislation of Spain, 102.

The equitable doctrine of lis pendens being inapplicable to the case at bar, the United States District Court should have decided as the insular court would do in the premises.

Federal courts are bound to decide precisely as the state courts ought to do, where their decision will affect titles to real property. Hinde v. Vattier, 5 Pet. 398; 8 id. 170; Union Pacific Ry. Co. v. Reed, 80 Fed. Rep. 234, 239; Hoge v. Magnes, 85 Fed. Rep. 355-357.

The United States courts also follow the decisions of the highest court of a State where they settle rules of law relating to real property. Myers v. Reed, 17 Fed. Rep. 404; O'Connell v. Reed, 5 C. C. A. 586; Belding v. Hebard, 43 C. C. A. 296–308.

Mr. N. B. K. Pettingill, for appellee, submitted:

If a litigation pending in any court of the United States