Magwire v. Tyler, 8 Wall. (U. S.) 650, 19 L. Ed. 320, it was held that conveyance of such lands "creates no right of private property in any particular tract of land which can be maintained in a court of justice without an antecedent survey and location." And in Robinson v. Forrest, 29 Cal. 217, it was well said: "Even after a principal meridian and base line have been surveyed, neither the sections nor their subdivisions can be said to have any existence until the township is subdivided into sections and quarter sections by an approved survey. The lines are not ascertained by the survey, but they are created. *** There is in fact no such land as that described in the petition until it has been located within the congressional township by an actual survey and establishment of the lines under the authority of the United States." See, also, Cragin v. Powell, 128 U. S. 691, 9 Sup. Ct. 203, 32 L. Ed. 566; United States v. Birdseye, 137 Fed. 516, 70 C. C. A. 100; United States v. Montana L. & M. Co., 196 U. S. 573, 25 Sup. Ct. 367, 49 L. Ed. 604. The court in instructing the jury gave to the plaintiff in error all the substantial benefit that would have accrued to him had the deed been ruled admissible in evidence for the purpose of showing color of title. The instruction was that, if the plaintiff in error honestly believed that he had a right to inclose such land by reason of having previously procured the deed, the jury might consider that fact as tending to show the intent with which he inclosed that particular tract of land. "Because," said the court, "without the intent to inclose public lands, knowing them to be such, there can be no offense." Error is assigned to the following portion of the charge to the jury: "Your authority in judging of the effect of evidence is not arbitrary, but should be exercised with legal discretion and in subordination to the rules of evidence. You are not bound to find in conformity with the declarations of any number of witnesses which do not produce conviction in your minds, or against a presumption or other evidence satisfying your minds." It is urged against this instruction that apparently it was aimed at the witnesses of plaintiff in error and intended to discredit them, since there were 14 of them, whereas there were but 4 for the prosecution; and that it was erroneous for the further reason that it conveyed to the jury the idea that the plaintiff in error must make out his defense so clearly as to produce conviction in their minds. We cannot see that the instruction is open to either objection. It clearly is the law that the jury were not bound to find in conformity with the declarations of any number of witnesses which did not produce conviction. in their minds. The portion of the charge so excepted to should be read in connection with the general charge on that branch of the case, in which the court defined the term "reasonable doubt," and instructed the jury that all the presumptions of law, aside from the effect of evidence, are in favor of innocence, and that every person is presumed. to be innocent until proved guilty. Said the court: "If, therefore, upon such proof as here adduced, considering it in its fullness and entirety, there remains in your minds a reasonable doubt as to the guilt of the accused, he is entitled to the benefit of it by an acquittal; that is, the evidence must establish guilt under the charge to a reasonable and moral certainty, a certainty that convinces your reason and judgment, acting under your duties and obligations as jurors." It is plain that, when the whole charge is considered, the jury could not have been misled by anything that was said in the particular portion thereof that was excepted to. Agnew v. United States, 165 U. S. 36, 17 Sup. Ct. 235, 41 L. Ed. 624. We find no error. The judgment is affirmed. (154 Fed. 432.) QUINTON et al. v. NEVILLE et al. (Circuit Court of Appeals, Eighth Circuit. June 8, 1907.) No. 2,294. 1. COURTS-LAW OF THE CASE-PREVIOUS DECISIONS. Where no appeal was taken from an original decree, and a bill of review was denied, all matters within the pleadings and jurisdiction of the court, expressed in the decree, were res judicata, and not reviewable on appeal from a supplemental decree. [Ed. Note. For cases in point, see Cent. Dig. vol. 13, Courts, § 340.] 2. EQUITY-JURISDICTION-RETENTION FOR COMPLETE RELIEF. Where a federal court of equity acquired jurisdiction of a suit by an administrator with the will annexed, to determine a claim of lien on certain lands belonging to testator and declare the rights of the parties, the court having determined that the title to the land was in the administrator and that the defendants were entitled to a lien under a certain contract, it was not bound to remand the cause to the probate court for the enforcement of such lien by a sale of the land, but could retain jurisdiction until complete justice had been accomplished by a sale of the land and distribution of the proceeds between the administrator and the lien ors. [Ed. Note. For cases in point, see Cent. Dig. vol. 19, Equity, §§ 103114.] 3. JUDICIAL SALES-LIENS-FORECLOSURE-SALE OF LAND-DECREE-PLATTING OF LAND. Gen. St. Kan. 1901, § 3012, provides that where it is made to appear by any executor or administrator that any lands of the estate, lying near an incorporated town or city would be materially advanced in value by being platted into town and city lots, the court may order the executor or administrator to subdivide and plat the land. Section 3013 requires the order directing such plat to be made on petition of the executor or administrator, to be accompanied by an accurate plat of the proposed subdivision; and section 3014 requires the executor or administrator, on receipt of the order, to acknowledge and file the plat as an addition to the city, and that no sale of any part of such real estate shall be ordered by the probate court until the plat has been acknowledged and filed. Held, that where an administrator with the will annexed sued to have an alleged lien of the defendants on property adjoining a city declared, and the land sold, it was a proper exercise of the court's discretion to refuse, without the consent of the administrator, to direct that the property be platted into a city subdivision, before sale, under such sections, and to require that the land be surveyed and subdivided into parcels containing not less than 5 nor more than 10 acres. 4. SAME--CONDITIONS-FORFEITURE. Where a lien was imposed on the excess of the proceeds of a sale of land belonging to an administrator with the will annexed, over $60,000, the owners of the lien could not object to a provision in the sale decree requiring each bidder as evidence of good faith to deposit 20 per cent. of the amount of his accepted bid, to be forfeited and applied to the costs if the bid was not made good, the commissioner being authorized to ac cept the receipt of the administrator in lieu of cash in case he became the purchaser at the sale. 5 SAME-APPOINTMENT OF MASTER-CLERK OF COURT. Where an order appointing a clerk of the Circuit Court of the United States special master to conduct a judicial sale of certain land under a decree of the Circuit Court did not specify special reasons therefor, the order was erroneous to that extent, under Act Cong. March 3, 1879, c. 183, 20 Stat. 415 [U. S. Comp. St. 1901, p. 591], prohibiting the appointment of any clerk of a District or Circuit Court of the United States or their deputies as receiver or master in any case, except where the judge shall determine that a special reason exists therefor, to be assigned in the order of appointment. 6 SAME-AMENDMENT OF Decree. Such error did not affect the balance of the sale decree, which was amendable in that respect. Appeal from the Circuit Court of the United States for the District of Kansas. For former opinion, see 152 Fed. 879. E. S. Quinton (A. B. Quinton, on the brief), for appellants. PHILIPS, District Judge. The facts leading up to the appeal herein sufficiently appear from the statement in Quinton et al. v. Neville, Adm'r et al., 81 C. C. A. 673, 152 Fed. 879, decided by this court at the December term, 1906, wherein these appellants sought by bill to have. the original decree herein reviewed. Prior to that decision the Circuit. Court had proceeded to enter a supplemental decree, in words and figures as follows: "It appearing to the court that no sale of the tract of land involved in this cause has been or could be made at private sale as provided by the decree of this court of November 19, 1903, and that the parties are unable to agree upon a method of sale thereof, it is therefore now by the court here further ordered, adjudged, and decreed: "Good cause existing therefor, George F. Sharitt, Esq., is hereby appointed special master to make the sale of the said land, to wit: The east half of the southeast quarter of section 25 in township 11 of range 15 east, and also a part of the east half of the northeast quarter of said section described as follows: Commencing at the southeast corner of said northeast quarter, then running northerly 13 rods, thence west at a right angle one quarter of a mile, thence south at a right angle 13 rods, thence east at a right angle to the place of beginning, all in Shawnee county in the state of Kansas-and to perform the other duties herein specially imposed upon him. He shall cause the land to be surveyed by a competent surveyor and so divided into parcels, each containing not less than 5 nor more than 10 acres, that a purchaser of any thereof may, if he so desires, advantageously plat the same with due regard to the neighboring streets and alleys of Topeka and Potwin. A map or plat of such survey and a sufficient description by metes and bounds of each numbered parcel shall be filed in this cause. The map shall show no streets or alleys upon the land to be sold nor subdivision of the parcels into blocks or lots, but it shall show the neighboring streets and alleys of Topeka and Potwin. The said special master shall forthwith cause the land to be advertised and sold in the same manner as in cases of sale of real estate upon execution, but without appraisement; and also excepting that he shall offer each and all of the parcels separately and also the tract of land as an entirety, and if the aggregate of the bids for the parcels shall exceed that for the tract as an entirety he shall accept them, otherwise he shall accept the bid for the entire tract; provided, however, that no sale whatever shall be made unless he shall receive for all of the land at least the sum of $61,000. The said special master may require from each bidder as an evidence of good faith the deposit of 20 per cent. of the amount of his accepted bid, the same to be forfeited and applied upon the costs of this cause if the bid be not made good; provided, however, that the master shall receive and accept the receipt of the complainant James Neville, as administrator, for any sum or sums not exceeding in the aggregate $60,000 in lieu of cash to that amount, and that within that amount no deposit as earnest money upon his bids shall be required of him. The advertisement for the sale of the land shall adequately describe the tract as an entirety and also each numbered parcel thereof, and shall contain the conditions of sale herein expressed, together with such others as may be appropriate under the law. The proper costs of the above-mentioned survey, map, and description and of making this sale shall be reported to the court and taxed among the costs of the cause. The master may adjourn the sale from time to time until his endeavor to sell the property has met with success or failure, giving notice thereof by public announcement at the time of adjournment. He shall forthwith report to the court his proceedings hereunder, and bring into court the proceeds of any sale that is made for its further order in the premises. Upon a sale of the land and confirmation by the court all of the parties to this cause and those claiming through them shall stand debarred of all estate therein or lien thereon except such as may be acquired by purchase at the sale; and in the event that no sale can be made in conformity herewith for a sum in excess of $61,000, then the defendants shall stand debarred of every estate in or lien upon said land. "The cause is reserved for such other orders and decrees as may be necessary in the premises." From this decree Mary K. Quinton and E. W. Poindexter, representing the original beneficiaries of the claim of Eugene S. Quinton and Abram Bergen, have appealed. It is transparent from the assignment of errors that counsel for appellants are ingeniously seeking by this appeal to have reviewed what was found and adjudged by the original decree. As that decree was not appealed from, and the bill of review was denied, all matters within the original pleadings and within the competency of the court expressed in the decree are res adjudicata. The decision of this court on the bill of review necessarily recognized the jurisdiction of the Circuit Court to render the original decree. That decree established the title of the complainants therein to the land in question. It recognized and declared the equity of the defendants therein, the appellants here, to a charge on the lands for their compensation as provided in the original contract, and as a necessary means to the ascertainment of that compensation it directed a sale of the land. The contention is made that the will under which the executor claims, which was executed and probated in the state of Nebraska, was not recorded in Shawnee county, Kan., where the land is situate; without which precedent act, it is asserted, the Circuit Court never acquired jurisdiction to make any decree in the cause. This objection was raised on the hearing of the bill of review. Judge Adams, who delivered the opinion of the court, after adverting to the fact that the record in the case disclosed a union of both possession and title in the complainants below, that as the administrator c. t. a., lawfully constituted in the state of Nebraska, the domicile of the testator, charged with the execution of the trust, was empowered by the statute of Kansas to sue on the recording of the will in that jurisdiction, said: "Inasmuch as it is averred in the original bill that complainant Neville had filed an authenticated copy of his appointment as administrator with the will annexed in the probate court of Shawnee county, and had caused the same to be recorded therein, or if the averment is ambiguous as to whether the will itself as distinguished from the appointment was filed and recorded, inasmuch as the will might have been so recorded, the finding by the Circuit Court that the legal and equitable title were vested in the complainants as stated in the bill conclusively established the fact for the purpose of this case that such will was so recorded, or that some other equally effective step was taken to confer legal title upon Neville, who only according to the pleadings could hold the legal title under the will of the testator. He was also in possession as admitted by the pleadings. From the foregoing we think it clearly appears that Neville as administrator c. t. a. not only had a legal right to sue in Kansas, but that, as owner of the legal title and in possession of the land in controversy, he also had a cause of action suable in Kansas to protect such title and possession." It is now insisted that when the Circuit Court had found, as it did in the original decree, that the title to the land was in the complainants, and settled the construction of the contract between the testator, Morell C. Keith, and Quinton and Bergen, and further directed that as a means for the ascertainment of the amount of the charge on the land in favor of Quinton and Bergen the land should be sold, the full purposes of the court in taking jurisdiction of the controversy were subserved, and thereupon the matter should have been remitted to the jurisdiction of the probate court of Shawnee county, Kan., to proceed as in the case of estates in administration under probate. This suggestion cannot be entertained. "The court which first acquires jurisdiction of specific property in a suit or proceeding to enforce a lien upon it or to subject it to a sale in a case in which it may find it necessary or convenient to take possession of, or dominion over it, is entitled to retain that jurisdiction until the suit is at an end;" and, consequently, until a complete remedy is enforced. Brun v. Mann, 80 C. C. A. 513, 151 Fed. 146, loc. cit. 152. A court of equity does not administer justice by halves. "It is a rule of courts of equity to do complete justice when that is practicable, not merely by declaring the right, but by affording a remedy for its enjoyment. A court of equity does not turn a party to another forum to enforce a right which it has itself established." 2 Bates on Federal Equity Procedure, § 724, p. 773. Having rightly assumed jurisdiction. of the controversy between these parties, in order to adjust the lien claimed by appellants on the land, and having determined that, in order to work out that lien and render available the estate therein of the administrator c. t. a. and the heir, it was necessary to sell the land, it inheres in the powers of a court of equity to prescribe not only the manner of conducting, but also to supervise such sale. This is essential to enable the court to see to it that its ministerial officer, charged with the execution of the decree, shall proceed in conformity therewith; a duty which the chancellor would fall short of performing should he remit the carrying out of his decree to a foreign tribunal over which he has no control. The sole purpose of recording the will in Shawnee county, Kan., was to enable the administrator c. t. a. to dispose of the |