also receive his premium note; and that the Company kept his policy from the time of its surrender in April until after October, and after the Company had become insolvent and had been put under injunction, without giving him any notice that he would not receive what he supposed himself entitled to. The cause came on to be heard before the Circuit Judge and District Judge, holding the Circuit Court of the United States for the Middle District of Tennessee, and the Judges differing in opinion upon the questions arising in the case, in accordance with the opinion of the Circuit Judge, the bill of complaint was dismissed; and the following questions were certified for the opinion of this court, to wit: "1. Whether, during the lifetime of complainant, James W. Lovell, any suit is maintainable upon the policy of life insurance set forth in the record in this case. 2. Whether the insolvency of the St. Louis Mutual Life Insurance Company and its contract of re-insurance of December, 1873, with the Mound City Life Insurance Company, accompanied by the transfer of the assets of the former to the latter Company, as set forth in the record of this case, operated to confer upon complainants or either of them, any right of action or suit against the St. Louis Mutual Life Insurance Company, or against the St. Louis Life Insurance Company. 3. Whether, if so, complainants can maintain this suit upon this record apart from the other policy holders of said St. Louis Mutual Life Insurance Company, whose policies were in force at the time of said re-insurance transaction, and who, equally with complainants, dissented therefrom." The first and main question is, whether, under all the circumstances, including the insolvency of the Company and the transfer of its business to another Company, the complainants are entitled to any relief. What they ask is a return of the money actually paid on the policy, with interest, and a surrender of the premium note; but, if not entitled to this relief, are they entitied, under the general prayer, to relief in any form? We are satisfied that when Lovell surrendered his policy in April, 1873, for the purpose of having it exchanged for a paid up policy, he exercised a right which the condition of the policy gave him. It is true the precise terms of the condition are, that the policy shall be commuted in case default is made in the payment of any premium; but as the making of a default is entirely optional with the insured, it follows that the conversion of the policy from an annual premium policy to a paid up policy, is at the option of the insured, at any time after the payment of the first three annual premiums. Though in no default, he may elect to pay no more premiums and may give notice to the Company to that effect; for it is the exercise of his option against his own interest; since it would be his interest to hold the policy for its whole amount until the maturity of the next premium, and then to make default. But the greater always includes the less. The right to have the policy commuted and reduced to a paid up policy, by making a default in the payment of a premium, in legal effect includes the right to have it so commuted and reduced by electing at any time to make such default and giving due notice to the Company of such election. At all events, neither the agent of the Company, nor the Company itself, made any objection to the surrender of the policy at the time when it was actually surrendered for the purpose of exchange. But it is clear that both Lovell and the agent of the Company labored under a mutual mistake as to the amount of the paid up policy to which Lovell was entitled. They supposed that he was entitled to a paid up policy for such amount as the sum of the premiums paid, less the premium note, would purchase, if paid as a single premium; whereas, the actual stipulation or condition was, that the sum insured should be commuted or reduced to the amount of the premiums themselves, not the amount of insurance that they would purchase. Now, whilst it is true that the mutual mistake of Lovell and the Company's agent could not change the written stipulation nor bind the Company to give Lovell a paid up policy for a greater amount than the sum of the premiums paid, yet, as the mistake was in fact made, and as Lovell surrendered his policy under the influence of that mistake and, as he testifies, with the distinct understanding that he was to receive a new policy corresponding to such mistaken view, and also to receive his premium note for cancellation, it was the duty of the Company, either to have returned him his policy unchanged, or at least to have given him notice of the mistake, so that he might have had an opportunity of determining whether he would still have his policy commuted or not. Good faith required this much from the Company; for it must be presumed that the agent, in transmitting the policy to the home office for the purpose of being commuted and exchanged, communicated what had passed between him and Lovell on the subject; and, at all events, the communications made by Lovell to the agent were notice to the Company. But nothing of the kind was done. The Company neither returned the policy nor gave Lovell any notice that it would not be commuted for the amount which he supposed and expected it would be; and, of course, he was led to suppose that everything was right and that he would receive his paid up policy and note in due time. On the contrary, the Company kept the original policy for more than six months, from April until October, until after they had gone or were forced into a process of liquidation and then, some person designating himself as assignee, made the indorsement on the policy which has been referred to, declaring that, in default of payment of renewal premium due 24th October, 1873, the policy was commuted and reduced to $822, on condition that the interest on outstanding premium notes should be paid annually in advance; and because the interest was not paid on the premium note in April, 1874, the parties having possession of the note, and who had assumed the obligations of the Company, declared the policy altogether forfeited and the complainant entitled to nothing whatever. It seems to us that the mere statement of the case is enough to show the want of equity in the transaction on the part of the Companies; and | the right of the complainants to some relief at the hands of the court. The sum of the matter is this: the complainant surrendered his policy, as he had a right to do, for the purpose of having it commuted to a paid up policy; but he did so with the understanding between him and the agent of the Company that the paid up policy was to be for such amount as the premiums paid would purchase, and that his premium note should be returned to him. So far as the amount of the paid up policy was concerned, the complainant and the agent acted under a mutual mistake; but the Company kept the policy for six months without giving the complainant any notice of the mistake and then, by indorsement on the policy, attempted to reduce it to a different amount, subject to the payment of interest on the premium note, and kept the note instead of delivering it up for cancellation. In the meantime, the Company conveyed all its assets to another company, and transferred to such other company all its business and all interest in its outstanding policies and completely and utterly put it out of its own power to fulfill any of its obligations and virtually went out of existence. Under these circumstances we hold: first, that the complainant, Lovell, was in no default and that he did not forfeit his rights under his policy; second, that he was under no obligation to continue his insurance, either under his original policy, or under a paid up policy, with the new company to which the St. Louis Mutual Life Insurance Company transferred its business; third, that since the latter Company totally abandoned the performance of the contract made with the complainant, and transferred all its assets and business to another company, and since the contract is executory and continuous in its nature, the complainant had a right to consider the contract as at an end, and to demand what was justly due to him by reason of its abandonment by the Company. Our second conclusion, that the complainant was under no obligation to continue his insurance in the new company, we think is equally clear. He had nothing to do with that company; it was a stranger to him. It is true that it received all the old Company's assets and assumed all its obligations on policies and otherwise; and the complainant was relegated to the new company for the obtainment of his rights, whatever they were. But that was a transaction between the Companies themselves, with which he had nothing to do; and under such a total change of relations and parties, it would be most unreasonable that he should be compelled, against his will or with the alternative of abandoning all his rights, to continue all his life to fulfill an executory contract by the payment of premiums to a company to which he was a total stranger, and in which, perhaps, he reposed no confidence whatever, or to take a paid up policy in such company. Still the complainant might be without other remedy than that of accepting insurance in the new company, or of prosecuting the old and virtually defunct Company, if it were not for the fund deposited with the Treasurer of Tennessee as indemnity to the citizens of that State holding policies in the Company. The assignment of all its assets, by the old Company to the new one, upon the consideration of its obligations being assumed by the new company, is somewhat analogous to an assignment of property by a debtor for the benefit of his creditors, in which only those creditors who are preferred or those who choose to come in and participate in the fund assigned, receive any benefit, whilst those who refuse to come in take no benefit, preferring to retain their claim against the debtor. So here, if the complainant does not choose to continue his insurance with the new company, he would have no remedy except against the old Company, which is totally unable to respond, were it not for the fund which has been attached in the hands of the state Treasurer of Tennessee. To this fund the complainant, being a citizen of Tennessee, had a right to resort. The object of the laws of Tennessee in requiring the fund to be placed on deposit with the Treasurer was to protect and indemnify its own citizens in their dealings with the Company. The assignment to the new company in Missouri could not deprive them of the right to this indemnity. Our first conclusion, that the complainant was not in default and, therefore, that he forfeited no rights under his policy, is based on the fact that when he elected to have his original policy commuted to a paid up policy, and surrendered it to the Company for that purpose without objection on its part, he had no further duty to perform and no further premium or interest to pay and, therefore, he could not make any default. He became entitled to a paid up Our third conclusion is, that as the old Compolicy of some amount or other. If a differ- pany totally abandoned the performance of its ence arose between him and the Company as to contract with the complainant by transferring what the amount was, he would have been en- all its assets and obligations to the new comtitled to change his mind and take back his orig-pany, and as the contract is executory in its natinal policy. The Company being presumably ure, the complainant had a right to consider it informed, through its agent, of the amount as determined by the act of the Company and which the complainant considered himself enti- to demand what was justly due to him in that tled to, should have given him notice, if they exigency. Of this we think there can be no did not agree to that amount. They gave him doubt. Where one party to an executory conno notice, but assumed to reduce his policy to tract prevents the performance of it, or puts it an amount different from that which he deemed out of his own power to perform it, the other his due and retained his note, which he expect-party may regard it as terminated and demand ed to be delivered up to be canceled; and no notice of this procedure was communicated to the complainant until after the Company had been declared insolvent, and had placed all of its assets and business out of its hands. We think it clear that the complainant was in no default whatever. whatever damage he has sustained thereby. We had occasion to examine this subject in the recent case of U.S. v. Behan [ante,168], to which we refer. It is unnecessary to discuss it further here. The question remains as to what is justly due to the complainant in this case, by reason of the contract being terminated by the act of the Com- The question has been raised whether the complainant can maintain this suit alone, without bringing in all the other policy holders. We see no reason why not. It does not appear that there are any other policy holders who have not accepted the terms of the arrangement between the two Companies, and continued their policies in the new company. Nor does it appear but that the fund now in court is abundantly sufficient to meet all demands upon it in favor of those for whose indemnity it was deposited in the Treasurer's office, without any abatement, or the necessity of a pro rata distribution. Of course, the St. Louis Life Insurance Company is a proper party to this suit, by reason of its claiming the fund, attached therein, as part of the assets of the St. Louis Mutual Life Insurance Company assigned to it. E. Q. GIBBON ET AL. (See S. C., Reporter's ed., 276–293.) Lessee cannot deny landlord's title-relief by the property for him and bound by their stipulation 3. The provision of the Act of March 3, 1877, in relation to the Hot Springs, that the commissioners shall finally determine the right of each claimant or occupant to purchase the land or a portion of it, does not necessarily withdraw that determination from the consideration of the court. It is final, so far as the land department is concerned. 4. The action of the commissioners, if erroneous, is subject to be reviewed and corrected by the juties arising from contracts or fiduciary relations bedicial tribunals; at least the equities of third partween them and the person to whom the commissioners may adjudge the right to purchase, are not concluded by their action. 5. When the legal title to land has passed from the United States to one party, when in equity and in good conscience and by the laws of Congress it ought to go to another, a court of equity will convert the holder into a trustee of the true owner, and compel him to convey the legal title. [No. 261.] Submitted Mar. 19, 1884. Decided Apr. 7, 1884. In conclusion, our opinion is, that the follow-APPEAL from the Circuit Court of the United ing answers should be returned to the questions certified by the Judges of the Circuit Court, that is to say: To the first that, during the lifetime of the complainant, James W. Lovell, a suit is maintainable upon the policy of life insurance set forth in the record, under the circumstances and for the cause stated in this opinion. To the second: that the insolvency of the St. Louis Mutual Life Insurance Company, and its contract of re-insurance with the Mound City Life Insurance Company, accompanied by the transfer of all its assets to the latter company, as set forth in the record, did operate to confer upon the complainants a right of action against the said Companies as stated in this opinion. To the third that this suit may be maintained upon the record presented therein, apart from the other policy holders of the St. Louis Mutual Life Insurance Company. sas. States for the Eastern District of Arkan The bill in this case was filed in the Circuit Court of Garland County, Arkansas, by the appellant, to enforce a resulting trust, claimed by him, in certain lots, within the Hot Springs Reservation, which had been awarded to the appellee by the Hot Springs Commissioners under the Act of March 3, 1877. The cause was removed, on petition of the defendants, into the court below. The court sustained a demurrer to the bill, on the grounds that the award of the commissioners was conclusive and that it was right, and entered a decree dismissing the bill. Whereupon, the complainant appealed to this court. The history and facts of the case more fully appear in the opinion of the court. Messrs. A. H. Garland, U. M. Rose and F. W. Compton, for appellant: In the performance of their duties, the com missioners stood in the same attitude as that of | The question for determination is whether, the register and receiver; and it has been re- under the Act of Congress of March 3, 1877, peatedly held by this court, that, although the providing for the sale of part of the reservation, decisions of the officers of the land department they are entitled to purchase the property in on controverted questions of fact, in the ab- preference to him. sence of fraud, imposition or mistake are conclusive in the courts; yet where, in the application of the facts as found by them, they, by misconstruction of law, take from one party that to which he has acquired a right under the sanction of that law and give it to another, a court of equity will convert that other into a trustee of the true owner and compel him to convey the legal title. Johnson v. Towsley, 13 Wall., 72 (80 U. S., XX., 485); Moore v. Robbins, 96 U. S., 530 (XXIV., 848); Shepley v. Cowan, 91 U. S., 330 (XXIII., 424); Minn. v. Bachelder, 1 Wall., 109 (68 U. S., XVII., 551); Silver v. Ladd, 7 Wall., 219 (74 U. S., XIX., 138. Morse v. Roberts, 2 Cal., 515; Earle v. Hale, 31 Ark., 470; Clemm v. Wilcox, 15 Ark., 102; Bettison v. Budd, 17 Ark., 546; Rawle, Covenants, 158, 159; Smith, Land. & Ten., 238, n.; 2 Smith, L. Cas., 611; Bowdish v. Dubuque, 38 Ia., 341; Fuller v. Sweet, 30 Mich., 237; Thrall v. Hotel Co., 5 Neb., 295; Lucas v. Brooks, 18 Wall., 436 (85 U. S., XXI., 779); Peralta v. Ginochio, and Holloway v. Galliac, 47 Cal., 459, 474; Stout v. Merrill, 35 Ia., 47. Messrs. Sol. F. Clark and S. W. Williams, for appellees: From the protracted litigation to which it has given rise, the Hot Springs Reservation is famous in the history of land titles of the country. Early in the present century the medicinal qualities of those springs were discovered, and from that fact the adjacent lands had an exceptional value. They were claimed by different individuals, some portions under a New Madrid certificate, and some portions under preemption settlements. The plaintiff entered upon the parcels in controversy as early as 1839, under an attempted location of a New Madrid certificate made in 1820, and he remained in their exclusive possession until April 24, 1876. They were then taken in charge by a receiver apThe parties who entered into possession un-pointed by the Court of Claims under an Act der appellant, and remained his tenants until passed in 1870, to enable persons claiming title, April 24, 1876, are now estopped to deny his either legal or equitable, to the whole or to any authority to make the leases, or to question the part of the four sections of land constituting the effect thereof, on account of any defect in his reservation, to bring suit in that court for the title. determination of their title as against the United States. Four suits were brought, one of them by the plaintiff, and they resulted in an adjudication that the title was in the United States, and that the several claims were invalid. Hot Springs Cases, 92 U. S., 698 [XXIII., 690]. The decision against him was regarded as a special hardship, both from his long possession and from the fact that his failure to obtain a title was occasioned by the neglect of the public officer, under whose direction the land was surveyed, to return the survey and a plat of the location to the Recorder of Land Titles for the Territory of Missouri. Until such return, the location under the New Madrid certificate was incomplete and the lands appropriated so as to exclude the operation of the Act of April 20,1832, by which the four sections were reserved for the future disposal of the United States. This court, in rejecting all the claims, observed that whatever hardship might thereby ensue would, no doubt be taken into consideration by the legislative department in the future disposition of the lands. Accordingly, and it is believed, upon this suggestion, Congress passed the Act of March 3, 1877. It provided for the appointment by the President of three discreet, competent and disinterested persons to constitute a board of commissioners, and imposed upon them various duties. Among other things it required them, under the direction and subject to the approval of the Secretary of the Interior, to designate a tract sufficiently large to include all the hot or warm springs on the land, embracing what is known as the Hot Springs Mountain, which tract was declared to be reserved from sale; and to lay out the residue of the land into convenient squares, blocks, lots, avenues, streets and alleys, the lines of which were to correspond with existing lines of occupants of the reservation as near as might be consistent with the interests of the United States. It also provided that they should, by a map prepared for that purpose, show the metes and bounds of the parcels or tracts claimed by reason of improvements thereon, or occupied on the reservation; should hear proofs offered by claimants and occupants in respect to the lands and improvements and When the law has confided to a special tribunal the authority to hear and determine certain matters the decision of that tribunal, within the scope of its authority, is binding upon all parties. Johnson v. Towsley, 13 Wall., 83 (80 U. S., XX., 486); Lytle v. Ark., 9 How., 314; Boatner v. Ventress, 8 Mart. (N. S.), 644; S. C., 20 Am. Dec., 266. It is well settled that when a new right or means of acquiring it is conferred by a constitution or statute, and an adequate remedy is given by the same authority which created the right, parties are confined to the redress thus given. Baxter v. Brooks, 29 Ark., 173; State v. Marlow, 15 Ohio St., 114; Smith v. Lockwood, 13 Barb., 209; Dudley v. Mayhew, 3 N. Y., 9; Sedg. Stat. & Const. L., 94; Commonw. v. Garrigues, 28 Pa. St., 9; Commonw. v. Baxter, 35 Pa St., 263; Commonw. v. Leech, 44 Pa. St., 332; Pringle v. Carter, 1 Hill (S. C.), 53; see, also, Morgan v. Curtenius, 4 McLean, 366; Landes v. Brant, 10 How., 358; Higueras v. U. S., 5 Wall., 827 (72 U. S., XVIII., 469); Lynch v. DeBernal, 9 Wall., 315 (76 U. S., XIX., 714). Mr. Justice Field delivered the opinion of the court: This is a suit in equity, brought by the plaintiff to charge the heirs at law of David Ballantine, as trustees of certain real property within the Hot Springs Reservation in the State of Arkansas, and compel them to convey it to him. tect the land from the action of the water of the Hot Springs Creek, and had erected valuable buildings. After the lease, a hotel was built on the premises, and before the end of the term the parties agreed that the lease should be continued until some time in the future, when it might be terminated by written notice as provided in the instrument. finally determine the right of each claimant or | cavations, grading and building a wall to prooccupant to purchase the same or any portion thereof, at the appraised value fixed by the commissioners. It declared that claimants and occupants should file their claims before the commissioners within six months after the first session of the board, or that their claims should be barred; and that no claim should be considered which had accrued after the 24th of April, 1876. It also made it the duty of the commissioners to file in the office of the Secretary of the Interior, the map and survey, with the boundary lines of each claim clearly marked thereon, and with each division and subdivision traced and numbered,accompanied by a schedule showing the name of the claimant of each lot or parcel of land with its appraised value; and also all the evidence taken by them respecting the claimant's possessory right of occupation to any portion of the reservation, and their findings in each case, with their appraisal of the value of each tract and of the improvements thereon; and to issue a certificate to each claimant setting forth the amount of land the holder was entitled to purchase, and its valuation, and also the character and valuation of the improvements. 19 Stat. at L., 377. The Act made it the duty of the Secretary of the Interior, within thirty days after the commissioners had filed their report and map, to instruct the land officers of Little Rock land district to allow the lands to be entered, and to cause a patent to be issued therefor, Within the required time, the plaintiff filed his claim Before the commissioners and presented proof showing his long continued occupation of the land in controversy, and the improvements he had made thereon. Whilst it was in his occupation, on the 21st of February, 1873, he through his son, who held the property as trustee to pay certain debts, leased it to the defendants Gibbin and Kirkpatrick, for the purpose of a hotel, bath-house and out-houses, at an annual rent of $500, and $1,500 additional for water privileges, for the term of three years and three months, beginning on that day and ending on the 21st of May, 1876. The lease provided that the hotel and other improvements should now cost more than $12,000; that at the end of the term the lessor should have the right to take the improvements by paying two thirds of their first cost, and should take the furniture in the hotel and bath-house by paying its actual value, so that the same should not exceed $8,000; that, if he should not pay these amounts at the end of the term, the lease should be extended on the same conditions until he should make the payments, giving ninety days' notice of his intention to terminate the lease; that, upon its termination as specified, the lessees should deliver to him or to his successors in office or grantees, or to whomsoever at that time in law might have the right to control the trust property, all the lands leased to them, promptly, without failure and free from let or hindrance of any kind whatever, together with all buildings, out-houses and improvements that might be erected on the premises. Soon after the lease was executed the trust was discharged by the payment of the debts, and the property and possession reverted to the plaintiff. Before the lease, he had made improvements of the value of at least $1,000 in ex In the year 1877 the lessees sold and transferred all their interest in the premises to one David Ballantine, he knowing at the time the terms and conditions of the lease. While the lessees were in possession and before their transfer, the plaintiff gave them notice of his desire to terminate the lease, and requested them to furnish him with a list of the furniture coming within its provisions, which they promised to do but never did. He never could get from them the information required for settlement, and therefore none was ever made, though he was ready and willing and frequently offered to pay all the sums that might be due to them under the terms of the lease, which offer they, under various pretenses, always declined. After entering npon the premises under the transfer, Ballantine died, being a resident, at the time, of Illinois, leaving surviving him certain of the defendants who are named in the bill of complaint as his heirs at law. By the survey of the commissioners a part of the premises was laid off and designated as lots five, six, seven, eight, nine, ten and eleven in block eighty-nine in the Town of Hot Springs, and the residue thereof was laid off into a street, on which the hotel and some of the out-buildings were erected. They were appraised at the value of $10,000, and condemned, and were then torn down and destroyed. A certificate of their condemnation and value was given to the heirs of Ballantine. As already mentioned, the plaintiff filed his claim to purchase the lots before the commissioners. The heirs of Ballantine also filed a like claim, and to them was awarded the right to purchase, although it was shown that their ancestor had acquired his possession under the lease made to Gibbon and Kirkpatrick. For these reasons, that the heirs never had any other right or title to the lands or to their possession except under the lease, containing covenants to restore the property and possession to the lessor on its termination, the plaintiff prays that they be adjudged to hold the lands as trustees for his use and benefit, and be decreed to convey them to him, on his paying the money advanced in the purchase, and that he be allowed reasonable rent for the occupancy of the lands. The bill of complaint sets forth the material facts which we have stated, and a demurrer to it was sustained, the court holding that the decision of the commissioners awarding to the heirs of Ballantine the right to purchase was a final adjudication and conclusive upon the parties; and even if not conclusive was correct. The ruling in both particulars, the plaintiff insists, was erroneous. It is very clear that the heirs of Ballantine are not parties for whose benefit the Act of 1877 was passed. He only acquired his claim to the property during that year by transfer from the original lessees of their leasehold interest; and the Act in terms declares that no claim to pur chase any portion of the reservation accruing |