Opinion of the Court-Deady, J. [November, analogy and the doctrine of forfeiture at common law, to assist the mind in coming to a conclusion," as to when and against whom the forfeiture was intended to take effect. As has been shown, at common law, goods and chattels forfeited for the personal offense of the owner, did not become the property of the king until after the conviction or fugam fecit found, so that a sale to a bona fide purchaser between the commission of the offense and the verdict of guilty or flight was a valid transfer of the property. But when the forfeiture is made, as in this case, to attach to the thing by means of which the offense is committed, the proceeding to declare the forfeiture may be and usually is commenced by a seizure of the offending property. In such case, the forfeiture, when found, related back to the seizure so as to cut off intermediate sales. The reason of this distinction is apparent. By the act of seizure the owner is divested of the possession, and thereafter no one deals with the owner upon the faith of it. The property being taken. into the custody of the law upon a charge of having been instrumental in the commission of a wrong, whoever purchases it does so at his peril and subject to the claim of the government upon which such seizure took place. And such, I think, is the effect of the statute. It does not work a present forfeiture of the vessel, but only makes it liable to forfeiture by due process of law. But until a seizure is made for the purpose of enforcing this liability, the title to the vessel is in the owner, and a purchaser from him in good faith acquires the same, and may hold the property against the government, which by neglecting to assert its right has lost it. In this case, the transfer of the vessel to the claimant was made on April 7, 1879, while the seizure did not take place until the twenty-ninth of the following August, at which time Hamilton had no interest in the vessel, and therefore it was no longer liable to forfeiture as his property, and for acts done before the sale to the claimant. The plea is good, and the exception thereto is disallowed. 1879.] Opinion of the Court-Deady, J. JAMES B. STEVENS v. CRAGIE SHARP, CIRCUIT COURT, DISTRICT OF OREGON. 1. LIMITATION.-Cases of constructive trust being purely of equitable cognizance, lapse of time is no absolute bar to a suit for relief thereon; and when the trust arises out of the fraud of the defendant, or those under whom he claims, there is no fixed rule upon the subject, but each case is decided according to its own facts and circumstances. 2. LOCAL STATUTE OF LIMITATIONS.-A state statute of limitation is not applicable in the national courts in a suit in equity, but under ordinary circumstances, the limitations prescribed therein will be regarded as reasonable. 3. PATENT-MISTAKE.-A married settler, under the donation act, fraudu lently procured a certificate and patent to the wife's share of the donation to be issued to a woman not his wife: Held, that a court of equity had jurisdiction to correct the error by requiring the patentee or her assigns to convey the premises to the wife or her assigns. Before DEADY, District Judge. Joseph N. Dolph, for the plaintiff. W. Scott Bebee, for the defendant. DEADY, J. This suit is brought to injoin the defendant from enforcing a judgment obtained by him in this court against the plaintiff for the recovery of the possession of the north half of the donation of Edward S. Sexton and wife, situate in Washington county, the same being the south half of the south-east quarter of section twenty, and all of section twenty-nine except the north half of the north-west quarter thereof, in township one south, of range one west, of the Wallamet meridian, containing three hundred and twenty acres, and to have the defendant convey the legal title of the same to the plaintiff. Upon reading and filing the bill, September 1, 1879, an order was made that the defendant show cause why a provisional injunction should not issue. The defendant showed cause by demurring to the bill, which was argued by counsel on October 8, 1879. The material facts stated in the bill are as follows: That in January, 1843, in Fulton county, Illinois, one Opinion of the Court-Deady, J. [November, Edward S. Sexton was married to Angeline Bilshee, which marriage remained in full force and effect until the death of said Sexton; that prior to March 20, 1850, said Sexton left said Angeline and three children in Illinois, aud came to Oregon, where he, pretending to be unmarried, in March, 1850, intermarried with India Stephens, the daughter of the plaintiff; that on September 1, 1853, said Sexton settled upon the premises as a married man, under the donation act, and resided upon and cultivated the same for four consecutive years, and otherwise complied with said act; that on January 31, 1868, a certificate was issued by the register and receiver of the proper land office to said Sexton and his wife for said donation, in which the north half thereof was designated as the part inuring to the latter, and the south half to the husband; that in procuring said certificate to be issued, said Sexton falsely and fraudulently pretended and represented to said register and receiver that said India was his lawful wife, and thereby procured and caused said certificate to be wrongfully issued to said India as the wife of said Sexton; that on May 5, 1873, a patent was issued for said donation, upon and in pursuance of said certificate, in which said India was erroneously described as the wife of said Sexton, and the premises in controversy confirmed to her as such; that the plaintiff, on July 7, 1876, purchased the south half of said donation from said Sexton; that in 1870–71, said Angeline and descendants set up a claim to said donation, and the plaintiff offered to assist said India to defend against the same, when said India informed him that she had known for years of the existence of said Angeline, and that she had no doubt that she was the lawful wife of said Sexton, whereupon he purchased the interest of said Angeline and descendants in said donation for the sum of two thousand five hundred dollars, and is now the owner and in possession of the same; that in October, 1873, said Sexton being dead, said India intermarried with one Samuel Rolfe, and in July, 1878, and during her last illness, said Rolfe procured said India to join with him in a conveyance to the defendant of all their interest in the donation; that in May, 1879, said 1879.] Opinion of the Court-Deady, J. defendant commenced an action in this court against the plaintiff to recover possession of the north half of said donation, in which he obtained judgment for such possession and one hundred and eighty dollars damages and costs; that said judgment was obtained solely upon the ground of the patent to India, and that until the same was given, the plaintiff supposed he had the legal title to the premises. The grounds of the demurrer are: 1. That the court is without jurisdiction; 2. That the suit is barred by the lapse of time; and, 3. That there is no equity in the bill. The first ground is certainly untenable, and was not insisted upon in the argument. The objection that the suit is barred by lapse of time rests upon the assumption that section 378 of the Or. Civ. Code, which provides in substance that no suit of equity shall be maintained to affect a patent, unless the same is brought within five years from the date thereof, applies to a suit in this court. But, as was held by this court in Hall v. Russell, 3 Saw. 514, and Manning v. Hayden, 5 Id. 360, this statute is not applicable to suits in this court. In the latter case the rule applicable to this case is laid down as follows: * * * "In the consideration of purely equitable rights and titles, courts of equity act in analogy to the statute of limitations, but are not bound by it. * * * In cases of implied or constructive trusts, when it is sought for the purpose of maintaining the remedy, to force upon the defendant the character of a trustee, courts of equity will apply the same limitation as provided for actions at law. But when the trust is constructive and also arises out of the fraud of the defendant, there does not appear to be any fixed rule upon the subject. The matter is left to the equitable discretion of the court, to be decided in each case according to its nature and circumstances, subject to the qualification, that diligence must be used to establish a trust by implication, and that equity will not aid a party to enforce such a trust when the demand is stale or where there has been long acquiescence in the wrong." Although a few days over six years had elapsed when the Opinion of the Court-Deady, J. [November, action was brought by the defendant, which has resulted in this suit, still, practically speaking, there has never been any actual acquiescence by the plaintiff in the alleged wrong, because he has been in the undisturbed possession and enjoyment of the premises since before the date of the patent, with the knowledge and apparent acquiescence of the pseudo wife, and those claiming under her, until the commencement of this litigation. Under the circumstances, he can only be charged with an omission to bring a suit to quiet his title against a claim which was not asserted, and which, as he might well think, under the circumstances, never would be. The patentee, or those claiming under her, had by the law of the state twenty years after the plaintiff took possession, within which to bring an action to assert her right under the patent; and in my judgment it is time enough for the party in possession to resist or countervail such right when it is asserted or set up. Indeed, in a case of fraud, a delay of thirty years has been held not a bar to relief. (Mechoud v. Girod, 4 How. 561.) But I admit that this court, sitting as a court of equity, when called upon to determine what delay will make a claim stale or show a want of diligence in its prosecution, so as to bar a suit thereon, should have regard to the periods prescribed by the law of the state in similar cases, as evidence of what is deemed a reasonable rule in this locality upon that subject. This being so, it must be borne in mind, that on October 17, 1876, and before the commencement of this litigation, the legislature amended section 378 so as to make the limitation therein ten years instead of five, and also declared that a party in possession, and equitably entitled to the land as against the patentee, might enforce his equity against such patentee, either as defendant in an action at law brought by the patentee to recover such possession, or by a suit in equity within the time such action for the possession might be brought. (Ses. Laws, 25.) This is the latest legislative expression of what is deemed a convenient and just rule on this subject, and this court may safely hold in analogy to it, that in the general a |