Opinion of the Court.

Harmon, deceased, citizens of Indiana, and the defendants citizens of Illinois. The action was founded on a promissory note signed by the defendants, dated March 1, 1875, payable one year after date to the order of Jacob Harmon, for $15,000, with interest at ten per cent. per annum, from date until paid, with a proviso that if the note was collected by suit the judg ment should include a reasonable fee for the plaintiffs' attor ney. A copy of the note, with the indorsements thereon, was set out with the declaration, showing that the interest thereon had been paid to March 1, 1885. The plea was the general issue. The case was tried by a jury, who returned a verdict in favor of the plaintiffs below, the judgment on which is brought into review by this writ of error.

From the bill of exceptions it appears that the following took place on the trial:

"Upon the said trial the defendants introduced proof tending to show that there was a verbal agreement between themselves and Jacob Harmon, the payee of the note, that if they would pay the interest regularly, at the rate of ten per cent. per annum, as called for by the note, until his death, they should be acquitted of the payment of the principal — in other words, that the money represented by the note was given to them upon condition that they should pay the interest thereon, during the life of Jacob Harmon, at the rate of ten per cent. per annum.

"The defendants also offered to prove that in the forepart of the year 1880, after the said note in suit had become due, they offered to pay Jacob Harmon the amount then due on said note, with interest, and proposed to do so, unless he would reduce the interest; whereupon the said Jacob Harmon verbally agreed that if they would continue to pay him the interest upon the sum of money represented by said note during his life, and pay in November of each year the interest in advance for four months, or, if they failed to pay the interest in advance for four months, should pay interest upon the interest so unpaid, then the said defendants should be acquitted of and released from the payment of the principal sum of said note at the death of said Jacob Harmon, which the court refused

Opinion of the Court.

to be permitted to be proved, and the defendants then and there excepted.

"And the court being of opinion that the facts so offered in evidence by the defendants, and the said facts which the defendants offered to prove, would not make a sufficient defence at law, if proven in the said case, directed the jury to return a verdict for the plaintiff therein, and the verdict was taken accordingly; to all of which the defendants then and there duly excepted."

These rulings of the court are now assigned for error. In support of the assignments of error, the plaintiffs in error maintain this proposition, viz.: That an agreement by the payor, after the note becomes due, to keep the money and pay interest thereon at the rate of ten per cent. per annum till the death of the payee, constitutes a sufficient consideration for an agreement on the part of the payee that he will then consider the note cancelled and paid, where the payor from the time of such agreement continues to pay such interest on the note until the death of the payee. This proposition should be considered in connection with the fact that in the year 1879, and therefore after the note in suit had become due, the interest laws of Illinois were so changed as to make eight per cent. per annum the maximum rate of interest that could be thereafter contracted for. Hurd's General Statutes, 1885, chap. 74, p. 736.

The agreement proved, and that to prove which evidence was offered, were both unilateral. The promise alleged was by the payee of the note, not in consideration of a promise on the part of the payor, but on condition that he perform what was to be done; viz.: payment of the interest at the rate and in the mode agreed until the death of the payee. It became essential, therefore, to the defence, to establish the fact that this undertaking had been fully performed, by proof of the payment of the interest as agreed until the death of Jacob Harmon. This fact is assumed in the brief of the counsel for the plaintiffs in error, but it nowhere appears in the record. The bill of exceptions does not state when Jacob Harmon died; it does not appear elsewhere in the record. All we can

Statement of Facts.

know from that is that he must have died before the institution of the suit, which was begun by his executors on September 25, 1885, but whether before or after March 1, 1885, we cannot infer, that being the date up to which interest was paid. If he died after that date, then the condition on which his promise could be enforced against his executors had not been fulfilled. On this point, therefore, the defence failed.

Judgment affirmed.

Harmon v. Adams. Error to the Circuit Court of the United States for the Northern District of Illinois. Mr. Justice Matthews: The record in this case involves no other questions than those just decided in the foregoing case. The judgment is therefore

Affirmed.

DURAND v. MARTIN.

ERROR TO THE SUPREME COURT OF CALIFORNIA.

Submitted January 13, 1887. - Decided February 7, 1887.

Lands listed to California as indemnity school lands, and patented by the State, are not open to preëmption settlement while in possession of the patentee.

The act of March 1, 1877, 19 Stat. 267, "relating to indemnity school lands in the State of California," was a full and complete ratification by Congress, according to its terms, of the lists of indemnity school selections which had been before that time certified to the State of California, by the United States as indemnity school selections, no matter how defective or insufficient such certificates might originally have been, if the lands included in the lists were not any of those mentioned in § 4, and if they had not been taken up in good faith by a homestead or preëmption settler prior to the date of the certificate.

THIS was an action to recover the possession of land in California, brought, and prosecuted to final judgment, in the courts of that state. The facts which make the Federal case for this court are stated in the opinion of the court.

Opinion of the Court.

Mr. Michael Mullany for plaintiffs in error.

Mr. E. D. Wheeler for defendant in error.

MR. CHIEF JUSTICE WAITE delivered the opinion of the

court.

This was a suit brought by Samuel B. Martin, the defendant in error, on the 20th of March, 1878, in the District Court of Contra Costa County, California, against Martin Durand and Anthony Thompson, the plaintiffs in error, to recover the possession of the E. sec. 13, T. 2 S., R. 1 E., Mount Diablo meridian. The facts found at the trial were in brief these:

The land in dispute was agricultural land, and it was located by the locating agent of California on the 20th of October, 1862, at the request and in the name of Martin, in lieu of the E. sec. 16, T. 22 S., R. 6 E., of the same meridian. In making this selection, which was for idemnity school lands, the agent acted under color of the authority of § 7 of the act of March 3, 1853, c. 145, 10 Stat. 244, 247. This township twenty-two has never been surveyed by the United States, and the east half of section 16 is within the boundaries of a Mexican grant known as San Miguelito, confirmed to one Gonzales, the final survey of which was approved in 1859, and the lands. afterwards patented to Gonzales or his assigns.

On the 2d of March, 1863, the State of California issued a certificate of purchase to Martin for the land in dispute. On the 8th of September, 1870, it was listed to the state by the United States government, and, on the 3d of February, 1871, it was patented by the state to Martin under his certificate of purchase. The plat of the United States survey of township two, embracing the land, was filed in the United States land office in San Francisco on the 10th of June, 1865.

On the 10th of April, 1839, the Mexican government granted to José Noriega and Robert Livermore, a tract of land known as Las Pocitas. The claim under this grant was confirmed on the 14th of February, 1854, by the land commissioners appointed under the act of March 3, 1851, c. 41, 9 Stat. 631,

Opinion of the Court.

and afterwards, on appeal, by this court, at December Term, 1860. After the decision of the land commissioners, a deputy surveyor, under instructions from the surveyor general of the United States for California, made a survey which purported to show the boundaries of the claim confirmed, and this survey was approved by the surveyor general May 7, 1854, but nothing further appears to have been done under it. In March, 1869, after the decree of confirmation by this court, the surveyor general caused the claim so confirmed to be again surveyed and designated, and this survey was approved by him May 11, 1870, by the Commissioner of the United States General Land Office, March 1, 1871, and by the Secretary of the Interior, June 6, 1871. On the 20th of August, 1872, the United States issued a patent to Noriega and Livermore, their heirs and assigns, for the land so surveyed and designated in March, 1869. The land now in dispute was embraced within the exterior boundaries of the grant adjudged to be valid by the decree of the board of land commissioners affirmed by this court, but was not embraced within the surveys of 1854 or 1869, or in the patent issued to Noriega and Livermore.

On the 16th of May, 1876, Thompson entered into the possession of the south half and Durand into the possession of the north half of the half-section in dispute. When these entries were made Martin was in possession of the land, though it was not then, nor had it ever been, fully enclosed or fenced. Within a few days afterwards Martin notified Thompson that he claimed to own the land under a patent from the State of California, which he exhibited; but, notwithstanding this, both Thompson and Durand maintained actual and exclusive possession, and kept Martin out until this suit was brought. Each of the parties entered for the purpose of availing himself of the preemption laws of the United States, having the neces sary personal qualifications therefor. They each made application at the proper land office to perfect their respective claims, but the officers refused to permit them to do so. Upon this state of facts the Supreme Court of California affirmed a judgment of the District Court in favor of Martin, and to reverse that decision this writ of error was brought.