logs; as in the first instance it would work an estoppel of the. assertion of claim now, in the second it would be conclusive evidence that the land was not claimed by him, and in the third it would be equally evidence of the same fact, as from his own testimony it appears that he laid no claim to the land upon which the logs were situated.

"This decision is not to be understood as holding that Love, in selling the Finley claim to Rundall, conveyed to the latter any title, or that Rundall, in selling to Flahive, did so; but it appearing that this sale was made, it is conclusive evidence that Love asserted, at that time, no title in himself, or if he had prior to such time asserted title, that by such sale he relinquished all claim in and to the tract in controversy; and that he is in equity and good faith estopped from asserting title against the vendee of the purchaser from him.

"The decision appealed from is therefore affirmed and the application of Love to enter the tract in controversy is held subject to the rights of Annie Flahive, the widow of Michael Flahive."

Of course, whether there was a sale, and what was the thing sold, were matters of fact to be determined by the testimony, and the findings of the Land Department in that respect are conclusive in the courts. It is objected by the plaintiff that a sale of a homestead prior to the issue of patent is void under the statutes of the United States. Anderson v. Carkins, 135 U. S. 483. This is undoubtedly the law, and the ruling of the Secretary was not in conflict with it, but the fact that one seeking to enter a tract of land as a homestead cannot make a valid sale thereof is not at all inconsistent with his right to relinquish his application for the land, and so the Secretary of the Interior ruled. While public policy may prevent enforcing a contract of sale, it does not destroy its significance as a declaration that the vendor no longer claims any rights. He cannot sell and at the same time. deny that he has made a sale. The Government may fairly treat it as a relinquishment, an abandonment of his application

Argument for Petitioner.

205 U. S.

and entry. No man entering land as a homestead is bound to perfect his title by occupation. He may abandon it at any time, or he may in any other satisfactory way relinquish the rights acquired by his entry. Having done that, he is no longer interested in the title to the land. That is a matter to be settled between the Government and other applicants. In this case, Love having relinquished his claim, it does not lie in his mouth to challenge the action of the Government in patenting the land to Mrs. Flahive.

We see no error in the record, and the judgment of the Supreme Court of Montana is

Affirmed.

MR. JUSTICE WHITE took no part in the decision of this case.

HISCOCK, TRUSTEE IN BANKRUPTCY, v. MERTENS.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.

No. 209. Argued February 27, 1907.-Decided March 25, 1907.

The provisions in § 70a of the bankruptcy act of 1898, that a bankrupt having policies of life insurance payable to himself and which have a cash-surrender value, may pay the trustee such value and thereafter hold the policies free from the claims of creditors, are not confined to policies in which the cash surrender value is expressly stated, but permit the redemption by the bankrupt of policies having a cash surrender value by the concession or practice of the company issuing the same.

THE facts are stated in the opinion.

Mr. Will B. Crowley for petitioner:

These policies are not strictly life insurance policies, but investments. They have no cash surrender value within the

205 U.S..

Argument for Petitioner.

meaning of the proviso in §70-a-5 of the bankruptcy act, and the bankrupt is not entitled to take them from the trustee upon the payment of what the bankrupt claims is the cash surrender value thereof.

The bankrupt is not entitled to any interest in these policies and cannot take them from the trustee. This question has never been before this court, but the question has been expressly decided adversely to the claim of the bankrupt in the lower courts. In re Welling, 113 Fed. Rep. 189; In re Slingluff, 106 Fed. Rep. 154.

These cases hold that the term "cash surrender value' in the bankruptcy act refers to a value in cash provided by the terms of the policy itself, and which can be demanded as a contract right by the insured; that it does not mean a sum which the company will voluntarily pay, although not obligated to do so.

The "cash surrender value" contemplated by § 70-a-5 is not a value which may be obtained by means of negotiation or agreement, but that it is only such a value as can be demanded and legally enforced against an unwilling insurance company. Pulsiver v. Hussey, 9 Am. Bank. Rep. 657; 97 Maine, 434.

Holden v. Stratton, 198 U. S. 214, does not apply except as to statements which are obiter. The peculiar nature and qualities of a tontine policy were not developed in that case.

These policies did pass to the trustee. The claim of the bankrupt that policies which have no cash surrender value do not pass to the trustee, is not well taken.

These policies did, in fact, constitute assets and did pass to the trustee. It is quite clear from the terms of the poliçies themselves that they had an actual value. They come expressly within the first part of subdivision 5, namely, property which could have been transferred, because it appears from the evidence that these policies not only could have. been transferred but were, as a matter of fact, prior to the bankruptcy, transferred as security for loans.

Argument for Respondent.

Mr. Dorr Raymond Cobb for respondent:

205 U.S.

The policies in question had a cash surrender value within the meaning of § 70a of the bankruptcy act and upon the payment of that cash surrender value to the trustee, the bankrupt may continue to "hold, own and carry" said policies as permitted by that section of the act.

It appeared that the company had fixed the cash-surrendervalue of each of the policies in question, and offered to pay the same, and such cash surrender values were stated on the record by one of the company's managers.

These cash surrender values which the company stood ready and offered to pay were based on the definite method of computation referred to as applicable to all similar policies. Premiums on each of the policies having been paid for more than three years, respondent had at all times the right to surrender either of his policies and receive in lieu thereof a paid-up policy "for the entire amount which the full reserve on this policy according to the present legal standard of the State of New York will then purchase as a single premium calculated by the regular table for single premium policies now published and in use by the society." This is substantially the legal requirement in the State of New York.

The contractual and statutory obligation to give the insured a paid-up policy assures a cash surrender value and fixity and uniformity in its payment. It is apparent as a practical question that policies having a cash surrender value will have a paid-up policy value and vice versa.

Under the former bankruptcy act, insurance policies passed to the assignee in bankruptcy only to the extent of their "cash surrender value;" that being treated as the sum which the company would voluntarily pay upon the surrender of the policy. Congress did not manifest any intention to change the law as it had been understood and practiced under the former bankruptcy act. In re MacKinney, 15 Fed. Rep. 535.

MR. JUSTICE MCKENNA delivered the opinion of the court.

The question in this case is whether the cash surrender value of a policy of insurance under sections 70-a-5 of the bankruptcy act must be provided for in the policy, or whether it be sufficient, if the policy have such value by the concession or practice of the company. Section 70 provides that "the trustee of the estate of a bankrupt upon his appointment and qualification shall be vested by operation of law with the title of the bankrupt as of the date he was adjudged a bankrupt, except in so far as it is to property which is exempt, to all (1) documents relating to his property (3) powers which he might have exercised for his own benefit, but not those which he might have exercised for some other per(5) property which prior to the filing of the petition he could by any means have transferred or which might have been levied upon and sold under judicial process against him: Provided, that when any bankrupt shall have any insurance policy which has a cash surrender value payable to himself, his estate or personal representatives, he may, within thirty days after the cash surrender value has been ascertained and stated to the trustee by the company issuing the same, pay or secure to the trustee the sum so ascertained and stated, and continue to hold, own and carry such policy free from the claims of the creditors participating in the distribution of the estate under the bankruptcy proceedings, otherwise the policy shall pass to the trustee as assets.'

son

The respondent and his sons, individually and as composing the copartnership of J. M. Mertens & Co., were declared bankrupts, and petitioner was elected the trustee of their estate October 14, 1903.

At the time the petition in bankruptcy was filed Mertens held four life insurance policies issued by the Equitable Life Assurance Society of the United States. One of the policies, payable to his wife if she should survive him, has been dropped from this controversy. The other three policies were payable