amount required, the list of which was filed in the general land office of the state, and was certified to the secretary of the interior, who, under date of January 24, 1855, duly approved the same to the state of Michigan under the act of congress of August 26, 1852. The list of selected lands under this grant, and so approved by the department of the interior, included the demanded premises, and on May 25, 1855, the governor of the state, in pursuance of the foregoing legislation and contract on the subject, issued a patent to the St. Mary's Falls Ship-Canal Company for a large portion of these selected lands, including therein, by particular description, the premises in controversy, which by mesne conveyances passed to the defendant in error, which entered into possession of the same, and was in actual possession thereof at the commencement of the present suit. This conveyance was duly recorded, and after the expiration of five years from the date of the patent, during which they were exempt from taxation, the lands so patented to the canal company have been continually subject to taxes by the state.

It is shown from the foregoing statement of facts, and it is conceded, that the demanded premises had never been selected as a part of the swamp lands granted to the state, nor had the same ever been approved to the state as such, and that no list or plat of swamp lands in Michigan made by or by the authority of the secretary of the interior contained or described the tract in question as swamp land, although a portion of the land in the vicinity thereof, and in the same township, was included in the lists of such lands which were selected and approved by the secretary of the interior.

It thus appears that the plaintiff and the defendant have each a conveyance from the state of Michigan for the particular tract of land in controversy, and that the conveyance to the defendant in error was prior in time to the conveyance to the plaintiff in error. The latter, however, claims that the demanded premises were a part of the swamp and overflowed lands granted to the state by the act of congress of September 28, 1850, and as such were conveyed to him by the patent of the state issued on November 3, 1887, and that he thereby acquired a title to the same, superior to that which the defendant in error acquired under the prior patent to the canal company, through which the defendant in error derives its title. In support of this contention it is urged that the swamp-land act was, in effect, a grant in praesenti, so that the title of the state to such lands dated from the date of that act, and consequently the state did not and could not acquire title to the tract in question under the act of August 26, 1852.

On the other hand, the defendant in error insists that the act of the state and of the department of the interior in the selection of lands under the swamp-land act amounted to

an adjudication or a determination on the part of the department of the interior that the parcel of land in question was not embraced within the provisions of the act of 1850, and that the same, having been affirmatively and particularly selected and certified to the state under the grant of August 26, 1852, was a direct adjudication that it came properly within the canal grant; that the legal effect and operation of the two selections, considered together, made with the consent and concurrence of the state, was to exclude, by implication, the particular premises here involved from the operation of the former grant, and to expressly include the same within the latter grant; and that this adjudication or determination of the department cannot be collaterally attacked or called in question in an action at law. The defendant in error further contends that, even conceding that the title of the state to the lands in question was derived under the act of 1850, it acquired the superior title thereto, under and by virtue of the conveyance made to the St. Mary's Falls Ship-Canal Company by the state's patent of May 25, 1855, which operated to pass to said company whatever title the state had to the premises in question, independently of the source from which it had derived its title.

On the trial of the case by the court and jury the plaintiff, to maintain the issues on his part, introduced his patent from the state, and offered oral evidence to prove that the tract conveyed thereby, and involved in the suit, with the exception of about seven acres thereof, was in fact swamp and overflowed land, being wet and unfit for cultivation, within the meaning of the swamp-land act of congress, and was so at the time of the approval of the act. To this evidence the defendant objected, and the court, reserving its ruling thereon until after the defendant had introduced its proof, sustained the objection, and refused to allow the evidence to go to the jury, to which ruling the plaintiff excepted.

After all the evidence in the case had been introduced, the plaintiff, by his counsel, requested the court to direct the jury to return a verdict in his favor. This the court refused to do, and instructed the jury to bring in a verdict for the defendant, which was accordingly done, and judgment was entered thereon, to which the plaintiff excepted; and to reverse this judgment the present writ of error is prosecuted.

The opinion of the court below is reported in 36 Fed. Rep. 665, and its action in rejecting the oral testimony and in directing a verdict for the defendant was rested upon two grounds: First, that after the secretary of the interior had discharged his duty and approved the list of swamp lands, made, in accordance with his suggestion, from field notes of government surveys with the consent of the state, which selection and identification did not include the parcel of land in

*84

question, although embracing other lands In the same township, there was in effect a determination that the land in controversy was not covered by or embraced within the swamp-land grant; and, secondly, that the state, having accepted the parcel of land in question, under the grant of 1852, and having conveyed the same to the canal company, was estopped from thereafter asserting any title thereto.

*The plaintiff has assigned for errors (1) that the trial court improperly excluded the oral evidence offered to show that the demanded premises were in fact swamp lands when the act of September 28, 1850, was passed; and (2) that the court should have directed a verdict for the plaintiff, instead of for the defendant.

In support of the first proposition, the plaintiff in error relies upon the case of Railroad Co. v. Smith, 9 Wall. 95, in which oral evidence was admitted to establish the fact that the parcel of land there in dispute was swamp and overflowed land at the date of the swamp-land act. But in that case there was no selection or identification of the land under either the swamp-land act or under the subsequent grant for railroad purposes. The selection and identification under each of said acts was left open and undetermined when the respective titles involved therein were acquired. It also further appeared in that case that the state neither made any selection of the lands granted for railroad purposes, nor conveyed to the railroad company any particular lands, but simply assigned or transferred generally the lands granted to the state by congress, which were at the time only "a float," requiring Identification and selection to make the grant operative to pass title to any portion of the public domain.

The facts of the present case present the direct converse of the situation which existed in the case of Railroad Co.* v. Smith. But, aside from this, the rule as to oral evidence, recognized in that case, was afterwards explained, and limited in its operation to cases in which there had been nonaction or refusal to act on the part of the secretary of the interior in selecting lands granted, as appears in the subsequent cases of French v. Fyan, 93 U. S. 169, 173, and Ehrhardt v. Hogaboom, 115 U. S. 67, 69, 5 Sup. Ct. Rep. 1157, where parol evidence was offered to show that patented lands were not of the character described.

In French v. Fyan the court, speaking by Mr. Justice Miller, said in reference to such evidence: "The case of Railroad Co. v. Smith, 9 Wall. 95, is relied on as justifying the offer of parol testimony in the one before us. In that case it was held that parol evidence was competent to prove that a paricular piece of land was swamp land, within the meaning of the act of congress. But a Careful examination will show that it was done with hesitation, and with some dissent v.13s.c.-51

in the court. The admission was placed expressly on the ground that the secretary of the interior had neglected or refused to do his duty; that he had made no selection or lists whatever, and would issue no patents, although many years had elapsed since the passage of the act. The court said: "The matter to be shown is one of observation and examination; and whether arising before the secretary, whose duty it was primarily to decide it, or before the court, whose duty it became, because the secretary had failed to do it, this was clearly the best evidence to be had, and was sufficient for the purpose.' There was no means, as this court has decided, to compel him to act; and if the party claiming under the state in that case could not be permitted to prove that the land which the state had conveyed to him as swamp land was in fact such, a total failure of justice would occur, and the entire grant to the state might be defeated by this neglect or refusal of the secretary to perform uis duty. There is in this no conflict with what we decide in the present case, but, on the contrary, the strongest implication that if, in that case, the secretary had made any decision, the evidence would have been ex cluded."

In the case of French v. Fyan it was held that, while the swamp-land grant was a grant in praesenti, by which the title * to such lands passed at once to the state in which they lay, it was made the duty of the secretary of the interior to identify them. make lists thereof, and cause a patent to be issued therefor; and that the patent so issued could not be impeached in an action at law by showing that the land which it conveyed was not in fact swamp and overflowed land, as the plaintiff in that case sought to do.

In the subsequent case of Ehrhardt v. Hogaboom, 115 U. S. 67, 69, 5 Sup. Ct. Rep. 1157, the plaintiff deraigned title through a patent of the United States for the demanded premises, bearing date June 10, 1875, which was given in evidence, while the defendant claimed that 20 acres thereof were swamp and overflowed lands which passed to the state of California under the act of congress of September 28, 1850, and offered parol evidence to establish this fact, but the evidence was rejected. It did not appear in that case that the demanded premises formed a part of any land selected by the state or claimed by her as swamp and overflowed land. In that case this court held, speaking through Mr. Justice Field, that "a patent of the United States, regular on its face, cannot, in an action at law, be held inoperative as to any lands covered by it, upon parol testimony that they were swamp and over flowed, and therefore unfit for cultivation, and hence passed to the state under the grant of such land on her admission into the Union;" and, after citing and approving the decision made in French v. Fyan, above

cited, proceeded as follows: "In that case parol evidence to show that the land conveyed by a patent to Missouri under the act was not swamp and overflowed land was held to be inadmissible. On the same principle, parol testimony to show that the land covered by a patent of the United States to a settler under the pre-emption laws was such swamp and overflowed land must be held to be inadmissible to defeat the patent. It is the duty of the land department, of which the secretary is the head, to determine whether land patented to a settler is of the class subject to settlement under the preemption laws, and his judgment as to this fact is not open to contestation in an action at law by a mere intruder without title. As was said in the case cited of the patent to the state, it may be said in this case of the patent to the pre-emptioner it would be a departure from sound principle, and contrary to well-considered judgments of this court, to permit in such action the validity of the patent to be subjected to the test of the verdict of a jury on oral testimony."

Nothing that was said or involved in Wright v. Roseberry, 121 U. S. 488, 7 Sup. Ct. Rep. 985, where the subject of these grants was exhaustively considered by the court, is in conflict with the rulings announced in these cases. In Wright v. Roseberry patents for lands had been issued to the defendants, or their grantors, by the United States, under the pre-emption laws, upon claims initiated subsequently to the swamp-land grant to the state, and it was held that such patents were not conclusive at law as against the parties claiming under the latter grant, and that in an action for their possession evidence was admissible to determine whether or not the lands were in fact swamp and overflowed at the date of the swamp-land grant, and that, if proved to have been such, the rights of subsequent claimants, under other laws, would be subordinate thereto. In that case the lower court held that the title to the demanded premises never vested in the state for want of a certificate by the department of the interior that they were swamp and overflowed lands, and that the state could not make title to the plaintiff upon which he could maintain an action of ejectment against persons in possession under a patent of the United States. This principle was denied by this court in an elaborate opinion announced by Mr. Justice Field, fully reviewing all the decisions on the subject, who said (page 509, 121 U. S., and page 994, 7 Sup. Ct. Rep.) that "the result of these decisions is that the grant of 1850 is one in praesenti, passing title to the lands as of its date, but requiring identifiIcation of the lands to render the title perfect; that the action of the secretary in identifying them is conclusive against collateral attack, as the judgment of a special tribunal to which the determination of the matter is intrusted; but when that officer has

neglected or failed to make the identification it is competent for the grantees of the state. to prevent their rights from being defeated, to identify the lands in any other appropriate mode which will effect that object. As resort to such mode of identification would also seem to be permissible, where the secretary declares his inability to certify the lands to the state for any cause other than a consideration of their character."

Under the principle announced in that case, and under the foregoing facts in the present case, it would seem that there had been such affirmative action on the part of the secretary of the interior in identifying the lands in this particular township, containing the lands in controversy, as would amount to an identification of the lands therein, which passed to the state by the swamp-land grant, and that the selection by the state of the demanded premises under the canal grant of 1852, with the approval of the secretary of the interior, and the certification of the department to the state that they were covered by the latter grant, may well be considered such an adjudication of the question as should exclude the introduction of parol evidence to contradict it. The exclusion of the land in dispute from the swamp lands selected and patented to the state, and its inclusion in the selection of the state as land coming within the grant of 1852, with the approval of such selection by the interior department, and the certification thereof to the state, operated to pass the title thereto as completely as could have been done by formal patent, (Frasher v. O'Connor, 115 U. S. 102, 5 Sup. Ct. Rep. 1141;) and, being followed by the state's conveyance to the canal company, presented such official action and such documentary evidence of title as should not be open to question by parol testimony in an action at law. Under the facts of this case we are of opinion that the plaintiff in error could not properly establish by oral evidence that the land in dispute was in fact swamp land for the purpose of contradicting and invalidating the department's certification thereof to the state, and the latter's patent to the canal company.

But, assuming that this parol testimony offered by the plaintiff in error was competent, and that it would have established that the land in controversy was swamp land that passed to the state by the act of 1850, what, then, would be the rights of the parties to this suit, under their respective *patents from the state? Can it be maintained that, because the state acquired title thereto under the act of 1850, its patent therefor to the canal company made in 1855 would be overreached and superseded by its subsequent patent to the plaintiff in 1887? We are at a loss to understand upon what principle this can be asserted, for, even conceding that the state, in patenting the demanded premises to the canal company,

acted under mistake or misapprehension as to the character of the land so conveyed, still, so long as that patent remains uncanceled and unrevoked by the state, it must be held that its legal effect was and is to pass whatever title the state had to the tract in question, however that title may have been originally acquired by the state.

In the cases relied upon by the plaintiff in error there had been no particular lands conveyed by the state under grants subsequent to the act of 1850, and there was no presumption of law or fact that its patent was intended to convey lands which accrued to it under the swamp-land grant. But in the case under consideration, even assuming that the state's title was acquired under the latter grant, it had a title for any and all purposes to which it might choose to apply or devote the property, and when it applied it to the purpose of constructing the canal, and actually conveyed it to the canal company, it was not in a position thereafter, so long as that conveyance remained in force, to transfer the same land to another purchaser.

It is well settled that the state could have impeached the title thus conveyed to the canal company only by a bill in chancery to cancel or annul it, either for fraud on the part of the grantee, or mistake or misconstruction of the law on the part of its officers in issuing the patent, and until so canceled or annulled it could not issue to another party any valid patent for the same land. U. S. v. Hughes, 11 How. 552; Hughes v. U. S., 4 Wall. 232; Moore v. Robbins, 96 U. S. 530. This is also the view taken of the question in State v. Flint & P. M. R. Co., 89 Mich. 481, 494, 51 N. W. Rep. 103. In that case the prior patent of the state was held to estop it from subsequently asserting title to the parcel of land conveyed, while its patent for the same land was outstanding. But whether there is any technical estoppel, in the ordinary sense, or not, it cannot be maintained that the state can issue two patents, at different dates to different parties, for the same land, so as to convey by the second patent a title superior to that acquired under the first patent. Neither can the second patentee, under such circumstances, in an action at law, be heard to impeach the prior patent for any fraud committed by the grantee against the state, or any mistake committed by its officers acting within the scope of their authority, and having jurisdiction to act and to execute the conveyance sought to be impeached.

The patent to the canal company is not shown to be void, because the state acquired title to the parcel in question, if it did so acquire it, under the swamp-land grant, rather than under the act of 1852. Neither the state nor its subsequent patentee is in a position to cancel or annul the title which it had authority to make, and which it had previously conveyed to the canal company.

The patent to the canal company did not on its face, or by its terms, purport to convey only such lands and such title as the state was entitled to under the grant of 1852. On the contrary, it conveyed by accurate description the particular tract or parcel of land in controversy. It is therefore wholly immaterial under which of the two congressional grants the state acquired its title to said lands.

The canal grant of 1852 did not by its terms make the state a trustee, in any proper sense of the word, in reference to the lands granted by that act; but if it did, the state, as a trustee, made the selection of the lands covered by that grant, and in that selection included the particular parcel in question, and thereafter conveyed it to the canal company; and, having full authority to so appropriate it, even if the title had previously accrued to it under the swamp-land act of 1850, its conveyance of the same to the canal company for a full and adequate consideration cannot, upon any well-settled principle, be held void either as to the state or any subsequent grantee from the state. So that, independently of any question arising upon the action of the court in excluding the parol evidence to show that the premises. in controversy were, in fact, swamp land, it is clear that, under the facts in this case, the defendant has shown a superior title to such premises, and that the court below was correct in directing a verdict for it.

Our conclusion, therefore, upon the whole case is that the judgment below should be affirmed.

Mr. Justice FIELD did not hear the argument in this case, or take any part in its decision.

Mr. Justice BROWN, being interested in the result, did not sit in this case, and took no part in its decision.

(149 U. S. 122)

CITY OF CAIRO v. ZANE.
(April 24, 1893.)
No. 210.

RAILROAD AID BONDS-VALIDITY-SUBSCRIPTIONS TO STOCK-DONATIONS-BONA FIDE PURCHASERS. 1. A city was duly authorized, by a vote of its inhabitants, to subscribe $100,000 for stock in a railroad company, and to issue its bonds to an equal amount in payment thereof. Thereafter the city council passed a resolution binding the city to sell to the company all this stock for $5,000, to be paid by a return of its bonds to that amount. The bonds were accordingly issued, and by direction of the council placed in escrow, to be delivered to the company when certain conditions were performed by it, the depositary being authorized and directed, after receipt of the stock, to sell the same to the railroad company for $5,000 of the city bonds. There was nothing to show that the railroad company agreed to purchase the stock on the terms stated, or on any terms, but, after the stock and bonds were duly exchanged, the stock was sold in the manner proposed.

Held, that this transaction did not convert the "subscription," which was authorized by the statute, into an unauthorized donation of $95,000, and, if any wrong was done by the council in thus disposing of the stock, it did not vitiate the bonds in the hands of a bona fide purchaser.

2. When the law of a state provides for the registry of municipal bonds and a certificate thereof, such certificate should be held as sufficient evidence to a purchaser of the existence of those facts upon which alone such bonds can be registered.

3. The Illinois general railroad law of 1849 (Laws 1849, 2d Sess. p. 33) authorized cities to subscribe for railroad stock, and pay therefor with bonds. The charter of the Cairo & Vincennes Railroad Company authorized cities along its lines to subscribe for stock, and pay therefor in bonds of $500 each, which bonds might be made payable in New York. Held, that there was nothing to prevent a city from exercising all the powers conferred by both acts, and hence, in payment for stock of the Cairo & Vincennes Company, it might issue bonds for $1,000 each, payable in New York city.

4. It is the settled law of Illinois that coupons attached to municipal bonds draw interest after maturity.

In error to the circuit court of the United States for the Southern district of Illinois. Affirmed.

Statement by Mr. Justice BREWER:

*On August 3, 1883, defendant in error commenced suit in the circuit court of the United States for the southern district of Illinois, on certain coupons attached to bonds issued by the city of Cairo, plaintiff in error. After answer had been filed, a trial was had, which resulted in a judgment in favor of plaintiff for $8,556.36. This judgment was entered on February 27, 1888, and to reverse such judgment the city sued out a writ of error from this court.

The facts as developed in the case are these: On May 28, 1867, a resolution passed the city council of the city of Cairo, ordering a special election "for the purpose of voting upon the question of the city issuing $100,000 in twenty-year bonds, drawing eight per cent. interest, as a subscription to the capital stock of the Cairo and Vincennes Railroad." An election was duly had, at which 695 votes were cast in favor of the subscription and 1 vote against. At a meeting of the council on July 1st the vote was canvassed, and a motion carried "that it be declared the wish of the people that the said sum of $100,000 be so subscribed." On November 5, 1867, the Journal of the proceedings of the city council contains this record:

"A proposition was received from the Cairo and Vincennes Railroad Company, proposing to purchase from the city of Cairo the $100,000 capital stock of said company subscribed by said city, accompanied by the following contract for consideration, viz.:

"This contract, made and entered into by and between the city of Cairo, Illinois, party of the first part, and the Cairo and Vincennes Railroad Company, party of the second part, witnesseth:

""That whereas, heretofore, to wit, on the first day of July, 1867, by a vote of the electors of the city of Cairo, Illinois, at an election held in said city, the mayor and city council of Cairo were authorized to make a subscription of one hundred thousand dollars to the capital stock of the Cairo and Vincennes Railroad Company, and to pay for said stock in bonds of the city of Cairo of the denomination of five hundred dollars, with the bonds to run for twenty years, and to bear interest at the rate of eight per centum, payable half yearly, on the first days of January and July of each year, in the city of New York, said city of Cairo being required by the laws of this state to issue installments of said bonds from time to time, as assessments may be made upon said stock by said railroad company;

"And whereas, the said railroad company proposes to guaranty that work on said road shall be commenced at Cairo within six months from the date of this contract, and that the construction of the roadbed, and laying the track from Cairo northward, shall be pushed with reasonable dispatch, and also to release the city of Cairo from the obligation to issue any part of said bonds until said rail road shall be built from Cairo to the boundary line between Alexander and Pulaski counties, and also to purchase of the city of Cairo the stock to be issued to said city upon the delivering of the city bonds aforesaid: It is therefore hereby stipulated and agreed, by and between the parties aforesaid, as follows:

"Article 1. The party of the second part agrees that work on said road shall be commenced at Cairo within six months of the date of this contract, and that the construction of the roadbed and laying of the track from Cairo northward shall be pushed with reasonable dispatch.

"Art. 2. The party of the second part agrees that, instead of the city of Cairo issuing bonds in payment for stock upon assessments made from time to time by said railroad company, the city of Cairo shall issue fifty thousand dollars of bonds, and deliver the same to said company in payment for stock, when the track of said road shall have been laid to the boundary line between the counties of Alexander and Pulaski, and cars shall have run thereon; and the said city shall issue fifty thousand dollars of bonds, as aforesaid, and deliver the same to said company in payment for stock, when the track of said company shall have been laid, and cars shall have run thereon, from the city of Cairo, through Pulaski county, to the boundary line between that county and Johnson county, Illinois.

"Art. 3. The party of the first part hereby agrees to issue the fifty thousand dollars of bonds of the city of Cairo in payment for fifty thousand dollars of stock of said Cairo and Vincennes Railroad Company, and de liver said bonds to said company whenever