were no children. And although it appears from the agreed case that such is not the fact, yet this cannot affect the patent, which may not be avoided at law for matter dehors the record. Sharp v. Stephens, C. C. D. Or. Aug. 25, 1879, and cases there cited. In this case it was held that a patent could not be contradicted at law by showing that the wrong person was named therein, as the wife of the settler and grantee of one-half of the donation. Who are the heirs of Charles Cutting is a matter to be determined solely by the local law-the law of Oregon. As was said by this court in Lamb v. Starr, supra, “the donation act does not prescribe who shall be considered the heirs of a deceased settler any more than it prescribes who shall be considered the wife of a settler. Both these are left to the local law-the law of Oregon. Who would be entitled to claim as heir of the deceased would in all cases depend upon the law of Oregon at the time of the death; but persons claiming as children, are by the donation act preferred to those claiming simply as heirs by the local law." By the law of this state, at and before the death of Charles Cutting, his children, including "the issue of any deceased child, by right of representation" were his heirs. Or. Laws, 547. The patent being to the heirs for the north half of the donation, gives the plaintiff and his sister, as the issue of A. J. Cutting, an equal interest therein with the surviving children of the deceased settler. And the patent having given the premises to the heirs without including the surviv ing widow, the interest of each heir would be an undivided one-fourth. But, as has been said, this omission of the widow from the grant in this respect is shown upon the face of the patent to be erroneous, and may, therefore be disregarded here. The plaintiff is entitled, upon the patent and the agreed case, to recover an undivided one-fifth of the whole premises. And upon this view of the matter it may have been unnec essary to pass upon the question whether grandchildren are included in the word "children" or not. But the argument of the case turned mainly upon this point, and counsel for the defendant was urgent that it should be decided, so as to avoid the expense and delay of further litigation. As it is, the court having determined that the grant to the children of the deceased settler, Cutting, included the children of his deceased son A. J., the word "heirs" in the patent is practically the exact synonym of the word "children" as used in the statute; and although the patent should have been issued to the children instead of the heirs, still the effect and operation given by it to the grant coincides with the true intent and meaning of the act. PENCE, Assignee, etc., v. COCHRAN and others. (District Court, S. D. Ohio. March, 1881.) 1. JUDGMENT LIENS-LEX FORI-RULE OF DECISION IN FEDERAL COURTS. The lien of judgments depends upon the laws of the state in which they are asserted; and the federal courts, in determining their nature and priority, will be governed by the construction put upon those laws by the highest courts of the state. 2 SAME-OHIO-PRIORITY-LEVY WITHIN A YEAR. Under the laws of Ohio regulating the liens of judgments, a judgment levied within a year from its rendition, upon a part of the lands of the judgment debtor, is not a lien upon the lands not levied upon, as against a subsequent judgment rendered more than a year after the first, and levied upon such lands within a year from its rendition. 3. SAME-BANKRUPT LAW. Under the bankrupt laws of the United States, the liens of judgments and their priority is to be determined as they existed at the time of the adjudication in bankruptcy. 4. SAME-SAME-OHIO-PRIORITY-LEVY WITHin a Year. Where D. had recovered a judgment against the bankrupt, and at a subsequent term of the court M. recovered a judgment against him, neither of which was levied, and before the expiration of a year from the rendition of the judgment first rendered the judgment debtor was adjudicated a bankrupt, held, that both these judgments were liens upon the lands of the judgment debtor not levied upon by a judgment rendered more than one year before the rendition of the first judgment, and must be paid in the order of their rendition. *Reported by Messrs. Florien Giauque and J. C. Harper, of the Cincinnati bar. In Bankruptcy. Exceptions to the Register's Report. D. W. C. London, for Brown county. D. W. Thomas, for Moore and Dunn. SWING, D. J. From the report of the register it appears that on the twenty-fourth day of November, 1874, the commissioners of Brown county, Ohio, recovered, in the court of common pleas of Brown county, a judgment against Reece Jennings, the bankrupt, and 18 others, for $22,620.12. It further appears that, at the time of the rendition of said judg ment, Reece Jennings was the owner of two separate tracts of land situate in said county of Brown; that afterwards, towit, on the twenty-third day of November, 1875, the commissioners caused execution to be issued upon said judgment, which was levied upon one tract of said land only; that on the thirteenth day of June, 1877, James H. Dunn recovered in the common pleas court of Brown county, Ohio, a judg ment against the said Reece Jennings for the sum of $1,185.05; that Reece Jennings, on the twenty-fourth day of August, 1877, in pursuance of a contract entered into on the seventeenth day of May, 1877, conveyed to Louisa Kaeble, in consideration of the sum of $2,257, the tract of land which was levied upon by virtue of the execution issued on the judg ment in favor of said commissioners; that on the twentieth day of October, 1877, R. C. Moore recovered, in the court of common pleas of Brown county, Ohio, a judgment against the said Reece Jennings for the sum of $839.49. It further appears that the said Reece Jennings, on his own petition, was, on the fourteenth day of December, 1877, adjudicated a bankrupt. It further appears that no executions were issued upon the judgments in favor of James H. Dunn and R. C. Moore. It further appears that the execution issued upon the judgment in favor of the commissioners of Brown county was also levied upon the lands of 16 other defendants, but it does not appear that an appraisement of any of the lands was made, nor does it appear what was the value of the lands levied upon. By proceedings under orders of this court, the tract of land owned by the bankrupt, and not levied upon under the judgment of Brown county, was sold by the assignee, and the proceeds, after the payment of costs, is insufficient to pay the judgments of Brown county, of James H. Dunn, and that of R. C. Moore; and it was claimed before the register, by counsel for Brown county, that the proceeds of the sale should be directed to be paid upon that judgment; and by counsel for Dunn and Moore, that they should be paid to them. The register decided that the proceeds should be applied-First, to the judgment of James H. Dunn; second, to that of R. C. Moore. And to this finding the county has excepted. The determination of this question involves the construction of the statutes of Ohio, declaring and regulating the liens of judgments, section 5375 of which provides that "such lands and tenements within the county where the judgment is entered shall be bound for the satisfaction thereof from the first day of the term at which judgment is rendered; but judgments by confession, and judgments rendered at the same term at which the action is commenced, shall bind such lands only from the day on which judgments are rendered; and all other lands, as well as goods and chattels, of the debtor shall be bound from the time they are seized in execution." And section 5415 provides that "no judgment on which execution is not issued and levied before the expiration of one year next after its rendition shall operate as a lien on the estate of a debtor to the prejudiee of any other bona fide creditor." These are the two sections of the statute which bear directly upon the question in this case, and which control its decision. The supreme court of the state has been several times called upon to construe and apply them; and if we can ascertain the construction which they have given to them, and can apply that construction to the facts of this case, we must be governed by it. Bank of U. S. v. Longworth, 1 McLean, 35. The first case in which these sections were construed is that of McCormack v. Alexander, 2 Ohio, 66, in which it was held by the court that judgment creditors who had not sued out and levied executions within one year from the date of their judgments lost their lien and preference as against sub sequent judgment creditors who had sued out and levied executions within one year. In that case there was but a single piece of land levied upon by the several executions. The second case is that of Patton v. Sheriff of Pickaway Co. 2 Ohio, 396, in which it was held that when a levy is set aside parties stand in the same situation as if no levy had ever been made; and where such levy had been made within the year upon a senior judgment and set aside, it lost its lien as against a junior judgment which had been levied within the year. The next case is that of Earnfit v. Winans, 3 Ohio, 135, in which it was held that the statute which restrained a levy upon the property of the surety until that of the principal was exhausted did not operate to preserve the lien of a judg ment upon which execution had not been levied within the year, and a junior judgment upon which execution had been levied within the year was held to be the prior lien. The next case is that of Shuee v. Ferguson, 3 Ohio, 136. From the statement of facts in that case it appears that the Bank of the United States obtained a judgment against Furgeson and others on January 8, 1822, in the circuit court of the United States for the district of Ohio, and on August 20, 1823, caused an execution to be levied on a quarter section of land of the defendant Ferguson, by the sale of which, on an older judgment, a surplus was produced. The Lebanon Banking Company obtained a judgment against Ferguson and others in August, 1823, but did not cause execution to be levied upon the land upon which the first execution was levied. Hansburger and Selley, in May, 1823, obtained judgment by attachment against Ferguson as a debtor of the Lebanon Bank, and also obtained an assignment of the judgment in favor of that bank against Ferguson, and on December 23, 1826, caused execution to be levied on the land in question. Thomas Shuee obtained a judgment against the same defendants on December 24, 1825, and caused an execution to be levied upon the land in question on the twenty-third of December, 1826. I. Emlin obtained a judgment against the same defendants on December 24, 1825, and caused an exe |