tained in another state against an inhabitant of this state, without any personal summons or service of process. This was so decided in Kilburn v. Woodworth, 5 Johns. 37 [4 Am. Dec. 321], and in Robinson v. Executors of Ward, 8 Johns. 86.1 The proceeding against the defendant, as trustee, in the year 1803, was not notice of any proceeding upon which this judgment was obtained, any more than a proceeding, in the first instance, against an executor or administrator, would be sufficient to warrant a judgment founded on a devastavit. The original suit, in both cases, is rather a proceeding in rem, than in personam. It is against the assets in the hands of the executor or trustee, belonging to the party whom they represent, and there must be a new suit, or a notice which is equivalent to it, before the trustee can be charged in his own private property or person as for a breach of trust. There was no such new suit or notice to warrant the judgment in this case; and, consequently, no action can be sustained upon it in this state. Agreeably to the stipulation of the parties, a judgment of nonsuit must be entered."

Because no notice of the nature of the claim against Ferry, to the effect that he and his individual estate were liable for debts and damages on account of his waste and conversion of the assets of the estate of his father, or of the relief that was sought and obtained from the probate court of Michigan upon this claim, was legally given to the defendant Ferry before the decree thereon was rendered, because the proceeding in that court was in rem, and the adjudication of this personal claim for debt or damages was beyond the scope of the jurisdiction of that court in that proceeding, and because that court was without power to adjudge in that proceeding that the Trust Company as administrator de bonis non or personally should recover that debt or those damages, the order and decree of that court that the defendant was individually liable for and should pay to the Michigan Trust Company, administrator de bonis non of the estate of William M. Ferry, on account of the devastavit found-$915,355.08-was beyond its jurisdiction and void, and an action upon it cannot be sustained in any other jurisdiction.

This conclusion has not been reached without consideration of the remarks of Mr. Woerner in section 534 et seq. of his American Law of Administration, and the opinions of the courts in Pyatt v. Pyatt, 46 N. J. Eq. 285, 18 Atl. 1048, 1049; Seaman v. Duryea, 11 N. Y. 324, 329; Storer v. Freeman, 6 Mass. 435, 439, 4 Am. Dec. 155; In re Estate of Wincox, 85 Ill. App. 613; Salomon v. People, 89 Ill. App. 374; Lett v. Emmett, 37 N. J. Eq. 535; Gray v. Gray, 39 N. J. Eq. 332, and other cases, in some of which damages for devastavits were considered and allowed in accountings in probate courts. But the question presented in this case does not appear to have been carefully considered and authoritatively ruled under statutes and facts similar to those in the case in hand in any of these decisions, and so far as the opinions and practice in these and other cases are inconsistent with the conclusions which have been reached they fail to commend themselves to our judgment.

The argument of counsel for the plaintiffs that the guardian ad litem and next friend of the defendant appointed by the Michigan court and the attorneys employed with the approval of the Utah court by the general guardians of his person and of his estate in Utah by their appearance, their defense of the claims against Ferry, and their presentation of the cross-petition in the Michigan court waived all objections

15 Am. Dec. 327.

to its jurisdiction, and estopped the defendant from questioning it, has not been overlooked. But the appearance of attorneys, guardians, and next friends of a person, or even his own appearance in a court, to defend or prosecute a claim of which that court has jurisdiction, does. not and cannot estop him from subsequently challenging the jurisdiction of that court to render a decree in that proceeding to which he never assented upon a claim of which that court never acquired any jurisdiction. Moreover, the probate court of Michigan had no jurisdiction to appoint a guardian ad litem to defend, and the guardian ad litem it appointed had no authority to appear, to defend, or to submit to that court any claim of which that court had not previously acquired jurisdiction by lawful service of due process of law upon the defendant (Galpin v. Page, 18 Wall. 350, 365, 373, 21 L. Ed. 959; Insurance Company v. Bangs, 103 U. S. 435, 440, 26 L. Ed. 580), and no service of such process as gave that court any jurisdiction of the claim against his person and estate founded on the alleged devastavit had ever been made.

For the same reason the general guardians, the court in Utah, and the attorneys they employed were without power to bind the person or to charge the estate of Ferry in Utah with this claim by their appearance in the Michigan court. The limit of their jurisdiction was over the person and property of the defendant in Utah, and it was beyond their power to bind the former or to charge the latter by any appearance for them in or submission to a court which acquired no jurisdiction thereof, of any claim against either. They could not by their action in Michigan subject the person of their ward and client in Utah to arrest and imprisonment on the process of the Michigan court, or his estate in Utah to decrees by that court upon claims of which it had not otherwise acquired jurisdiction (Brown v. Fletcher's Estate, 210 U. S. 82, 91, 28 Sup. Ct. 702, 52 L. Ed. 966; Insurance Company v. Bangs, 103 U. S. 435, 439, 26 L. Ed. 580), and the presentation by the next friend of the defendant of his claim that the powers of attorney and agreements of the residuary legatees presented a good cause why he should not render any account, and entitled him to a decree closing the estate without such an account, constituted no appearance in the litigation over the claim for the devastavit and no waiver of the defendant's right to maintain that the probate court of Michigan never acquired jurisdiction thereof. The decree of the court below was right; it must be affirmed, and it is so ordered.

MICHIGAN TRUST CO. v. FERRY.

(Circuit Court of Appeals, Eighth Circuit. January 10, 1910.)

No. 3,108.

In Error to the Circuit Court of the United States for the District of Utah. Action by the Michigan Trust Company against Edward P. Ferry. Judgment sustaining a demurrer to the complaint, and plaintiff brings error. firmed.

Af

Henry C. Hall and Edward B. Critchlow (Dunbar F. Carpenter, on the brief), for plaintiff in error.

Waldemar Van Cott and Joseph T. Richards, for defendant in error. Before SANBORN and VAN DEVANTER, Circuit Judges, and WILLIAM H. MUNGER, District Judge.

SANBORN, Circuit Judge. In the year 1870, Edward P. Ferry, who was then a citizen of Michigan, was appointed executor of the will of Amanda W. Ferry, by the probate court of the county of Ottawa in the state of Michigan. In December, 1907, upon a petition of legatees and devisees of Amanda W. Ferry the probate court entered a judgment against Edward P. Ferry for damages for the maladministration of the estate of Amanda in the sum of $16,458.81, and decreed that this amount should be paid to the Michigan Trust Company, which was appointed administrator de bonis non of that estate. A complaint was filed by the trust company in the Circuit Court for the District of Utah which set forth these facts and other facts which are substantially identical with those which conditioned the cause of action of the Michigan Trust Company in No. 3,107 which was argued and submitted at the same time with this case. 175 Fed. 667. The court below sustained a demurrer to the amended complaint and refused to permit a second amendment. A dismissal of the complaint followed, and the writ of error in this case presents the same questions which were raised and have been decided in No. 3,107, in which the sufficiency of a similar complaint upon a like cause of action upon a judgment rendered by the same probate court against Edward P. Ferry for a devastavit of the estate of William M. Ferry was involved. Upon the authority of the opinion and conclusion in that case the judgment in this case must be affirmed, and it is so ordered.

LE MARCHAL v. TEGARDEN.

(Circuit Court of Appeals, Eighth Circuit. November 29, 1909.)

No. 2,756.

1. PUBLIC LANDS (§ 127*)-RIGHTS ACQUIRED BY ENTRY-PATENT AS NOTICE OF DESCRIPTION.

A cash entryman of a tract of public land who received a register's certificate which he forwarded, and on which a patent was issued and recorded in the General Land Office, is constructively, at least, charged with knowledge of the description therein.

[Ed. Note. For other cases, see Public Lands, Dec. Dig. § 127.*] 2. PUBLIC LANDS (§ 108*)-PROCEEDINGS IN LAND OFFICE-CONCLUSIVENESS OF DECISIONS.

The decision of the Secretary of the Interior on an appeal to him in a controversy over a land entry is conclusive as to questions of fact, in the absence of fraud or gross mistake, but not upon questions of law, and, if through an error of law he directed a patent to issue to the wrongful claimant, the patentee will be held in equity as a trustee for the rightful

owner.

[Ed. Note. For other cases, see Public Lands, Cent. Dig. §§ 304–306; Dec. Dig. § 108.*]

3. PUBLIC LANDS (§ 127*)—MISTAKE IN ENTRY-PROCEEDINGS FOR Transfer. An application for a change of entry of public land on the ground of a mistake in the description of the land is necessarily governed by Rev. St. § 2372 (U. S. Comp. St. 1901, p. 1451), which is the only statute applicable, in whatever form it may be presented, and under said section the entry can only be transferred to a tract which is "unsold," and where it will not affect the right of third persons, and a decision of the Secretary of the Interior transferring such an entry to a tract upon which a homestead For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

entry had subsequently been made in good faith by another who had made valuable improvements, completed his residence, made final proof, and received his final certificate, which vested in him the equitable title, is wholly unauthorized and erroneous in law.

[Ed. Note.-For other cases, see Public Lands, Dec. Dig. § 127.*] 4. PUBLIC LANDS (§ 103*)-PROCEEDINGS IN LAND OFFICE-CONTESTS-ESTOP

PEL.

In a contest before the Land Department between a patentee who scught to have his patent transferred to a different tract on the ground that such tract was intended and that the wrong numbers were inserted in the patent through mistake, and a homestead entryman of the tract claimed, the fact that the latter contested the question of fact as to the mistake did not estop him to also deny the applicant's right to the transfer as a matter of law in case the question of fact was determined against him. [Ed. Note.-For other cases, see Public Lands, Dec. Dig. § 103.*] 5. PUBLIC LANDS (§ 127*)—CHANGE OF ENTRY-SCOPE OF STATUTE.

Rev. St. § 2372 (U. S. Comp. St. 1901, p. 1451), which provides that "in all cases of an entry hereafter made of a tract of land not intended to be entered, by a mistake of the true numbers of the tract intended to be entered," the entry may be transferred to the tract intended if unsold, and, if the rights of no third person will be affected, applies to cases where the patent has been issued as well as to those in which the legal title has not been transferred, in view of the fact that the provision of the original act of May 24, 1824 (chapter 138, 4 Stat. 31), which limited its application to cases where no patent had issued, was omitted from the Revised Statutes.

[Ed. Note.-For other cases, see Public Lands, Dec. Dig. § 127.*]

6. TAXATION (§ 734*)—VALIDITY OF TAX TITLE-LAND NOT SUBJECT TO TAX. A tax sale of land, the legal title to which remained in the United States, and to which the person in whose name it was assessed did not have even the equitable title, conveyed no title or right to the purchaser. [Ed. Note. For other cases, see Taxation, Dec. Dig. § 734.*]

Appeal from the Circuit Court of the United States for the Western District of Arkansas.

Suit in equity by E. F. Le Marchal against Grant Tegarden. Decree for defendant (152 Fed. 662), and plaintiff appeals. Reversed. J. H. Hornsby, for appellant.

Seawell & Seawell and J. W. Story, for appellee.

Before HOOK and ADAMS, Circuit Judges, and CARLAND, District Judge.

ADAMS, Circuit Judge. This was a bill in equity brought by Le Marchal against Tegarden to declare a trust in and secure a conveyance to him of a certain tract of land to which the latter had acquired legal title. The Circuit Court dismissed the bill, and complainant brought the case here by appeal.

In December, 1893, Le Marchal relying, not only upon the fact that the public land records disclosed that the S. E. 14 of the N. W. 14 of section 11, township 17 N., range 15 W., in Marion county, Ark., was vacant public land, and as such subject to entry, but also relying upon a letter from the Commissioner of the General Land Office, written in answer to his special inquiry, to the same effect, made a homestead entry upon it. He soon afterwards began to improve it, and ex

•For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

pended about $2,500 in clearing the land, constructing a residence and outbuildings, and planting orchards and vines thereon. In January, 1894, he commenced living there with his family, and has continued to do so until the present time. In March, 1899, after the requisite five years had elapsed, he made final proof of his residence and cultivation, paid all the fees required by law to be paid, and thereby presumptively became the equitable owner of the land and entitled to a patent therefor. In April, 1901, before Le Marchal received his patent. Tegarden presented to the register and receiver of the local land office in Arkansas an application in the name of the heirs of William Goodall, whose rights he had acquired by assignment, for a change of a certain cash entry made by Goodall in 1848 so as to make it cover the homestead entry of Le Marchal, and this was forwarded to the Commissioner of the General Land Office at Washington for his action. The application contained averments to the effect that Goodall in November, 1848, purchased and paid for what he supposed was the S. E. 14 of the N. W. 14 of section 11, township "17" N., range 15 W.; that when he paid for it he took a receiver's receipt for the money, in which the land was correctly described as located in township 17, but that the patent certificate, issued to him on the same day by the register incorrectly described the land locating it in township "16" instead of "17"; that this certificate was forwarded to the Commissioner of the General Land Office in Washington, upon which, on July 1, 1850, a patent was issued to Goodall, conveying to him the land in township "16" as described in the certificate instead of in township "17" as it should have done. Notice of the hearing of this application was given to Le Marchal, and he appeared before the Commissioner who heard the evidence produced by both parties, and on May 3, 1902, decided against Tegarden and in favor of Le Marchal, the present complainant. Afterwards an appeal was prosecuted to the Secretary of the Interior, who, on January 21, 1903, reversed the decision of the Commissioner, and ordered the patent which had issued to Goodall for the tract in township 16 to be canceled, and a patent for the land in controversy in township 17 to be issued to the Goodall heirs. Afterwards a patent was duly issued, conveying the land entered by Le Marchal to him, not including however, the 40-acre tract now in dispute. Upon this tract his residence had been built and practically all his improvements had been made. Much evidence was heard by the officers of the Land Department on the issue joined whether the original entry of Goodall was intended to be upon the land in controversy or elsewhere, and the same and other like evidence was heard at the trial in the court below and is now before us on appeal.

There is proof, and to our minds quite conclusive, that Goodall never intended to enter the tract in controversy, but did intend to enter the "N. E." 14 instead of the "S. E." 14. It was, we think, upon this northeast 40-acre tract that the mill site which Goodall confessedly desired to acquire was situated. There is also much evidence tending to estop those under whom Tegarden claims as well as Tegarden himself from asserting his legal title against Le Marchal's equitable right. The evidence may be summarized as follows: The register's certificate delivered to Goodall was an instrument of a high order of im