Opinion of the Court.

where the property was situated; secondly, that by the law of Illinois the agreement for continuing the title of the property in the vendors, after its delivery to the vendees, whereby the latter became the ostensible owner, was void as against third persons. This is all that was decided, and it does not aid the appellants, unless they can show that the law as held in Illinois, contrary to the great weight of authority in England and this country, is that which should govern the present case. this we think they cannot do. We do not mean to say that the Illinois doctrine is not supported by some decisions in other States. There are such decisions; but they are few in number compared with those in which it is held that conditional sales are valid and lawful, as well against third persons as against the parties to the contract.

And

The appellants, however, rely with much confidence on the decision of this court in Heryford v. Davis, 102 U. S. 235, 243, a case coming from Missouri, where the law allows and sustains conditional sales. But we do not think that this case, any more than that of Hervey v. Rhode Island Locomotive Works, will be found to support their views. The whole question in Heryford v. Davis was as to the construction of the contract. This was in the form of a lease; but it contained provisions so irreconcilable with the idea of its being really a lease, and so demonstrable that it was an absolute sale with a reservation of a mortgage lien, that the latter interpretation was given to it by the court. This interpretation rendered it obnoxious to the statute of Missouri requiring mortgages of personal property to be recorded in order to be valid as against third persons. It was conceded by the court, in the opinion. delivered by Mr. Justice Strong, that if the agreement had really amounted to a lease, with an agreement for a conditional sale, the claim of the vendors would have been valid. The first two or three sentences of the opinion furnish a key to the whole effect of the decision. Mr. Justice Strong says: "The correct determination of this case depends altogether upon the construction that must be given to the contract between the Jackson & Sharp company and the railroad company, against which the defendants below recovered their judgment and obtained

Opinion of the Court.

their execution. If that contract was a mere lease of the cars to the railroad company, or if it was only a conditional sale, which did not pass the ownership until the condition should be performed, the property was not subject to levy and sale under execution at the suit of the defendant against the company. But if, on the other hand, the title passed by the contract, and what was reserved by the Jackson & Sharp company was a lien or security for the payment of the price, or what is called, sometimes, a mortgage back to the vendors, the cars were subject to levy and sale as the property of the railroad company."

The whole residue of the opinion is occupied with the discussion of the true construction of the contract, and, as we have stated, the conclusion was reached that it was not really a lease, nor a conditional sale, but an absolute sale, with the reservation of a lien or security for the payment of the price. This ended the case; for, thus interpreted, the instrument inured as a mortgage in favor of the vendors, and ought to have been recorded in order to protect them against third persons.

But whatever the law may be with regard to a bona fide purchaser from the vendee in a conditional sale, there is a circumstance in the present case which makes it clear of all difficulty. The appellant in the present case was not a bona fide purchaser without notice. The court below find that at the time of and prior to the sale he knew the purchase-price of the property had not been paid, and that Russell & Co. claimed title thereto until such payment was made. Under such circumstances, it is almost the unanimous opinion of all the courts that he cannot hold the property as against the true owners. But as the rulings of this court have been, as we think, somewhat misunderstood, we have thought it proper to examine the subject with some care, and to state what we regard as the general rule of law, where it is not affected by local statutes or local decisions to the contrary.

It is only necessary to add that there is nothing either in the statute or adjudged law of Idaho to prevent, in this case, the operation of the general rule, which we consider to be established by overwhelming authority, namely, that, in the absence of fraud, an agreement for a conditional sale is good and valid,

Statement of Facts.

as well against third persons as against the parties to the transaction; and the further rule, that a bailee of personal property cannot convey the title, or subject it to execution for his own debts, until the condition on which the agreement to sell was made has been performed.

The judgment of the Supreme Court of the Territory of Utah is Affirmed.

KANSAS CITY, LAWRENCE, AND SOUTH KANSAS RAILROAD COMPANY v. THE ATTORNEY GENERAL.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF KANSAS.

Argued October 18, 19, 1886.-Decided November 8, 1886.

The acts of Congress of March 3, 1863, 12 Stat. 772; July 1, 1864, 13 Stat. 339; and July 26, 1866, 14 Stat. 289, granting lands to the State of Kansas for railroad purposes, are to be construed in pari materia, and as having the one purpose of building a single road from Fort Riley, down the Neosho Valley, to the southern line of that State, and not as distinct grants for different roads, which may come in conflict in the claims under them in regard to the lands granted.

The junction of this road with the one from Leavenworth by way of Lawrence, in the direction of Galveston Bay, as provided in the act of 1863, was not required to be on the very crest of the Neosho Valley, as reached by the latter road, but at a convenient point for such crossing in the narrow valley of the Neosho River; and as this point has been adopted by the companies building both roads, and accepted by the officers of the Land Department in selecting indemnity lands, there is no sufficient reason to be found in the point of junction to vacate the certification of these lands to the State for the company which has built the road and received the patents of the State. Nor is there any other sufficient reason found in the record in this case for setting aside the evidences of title to these lands issued to the corporation which built the road within the time required by law, to the approval of the officers of the government, whose primary duty it was to certify these lands, and who did so within the scope of their powers.

This was a bill in equity brought by the Attorney General of the United States, to quiet the title to certain lands in Kan

Argument for Appellee.

sas. The decree below was in favor of the Attorney General, from which the railroad company appealed. The case is stated in the opinion of the court.

Mr. George W. McCrary, Mr. John F. Dillon and Mr. A. T. Britton (Mr. James Hagerman and Mr. A. B. Browne were with them on the brief), for appellant.

Mr. William Lawrence (representing settlers), for appellee, argued the following general propositions:

First Proposition.-The claim of title under: (1) The landgrant act of March 3, 1863, 12 Stat. 772; (2) The Kansas act of February 9, 1864, accepting the grant of said act of Congress; (3) The patent issued by the Governor of Kansas to the Missouri, Kansas and Texas Company. The defendant, as grantee of the Missouri, Kansas and Texas Company, has no title under these.

Second Proposition.-The court cannot support the patent, or any claim of title, by ignoring the statutes and proceedings recited in the patent as the authority for issuing it, and by reference to other statutes or proceedings, dehors, even if by possibility the Secretary of the Interior and the Governor of Kansas might have considered them and made them available to give title, when, in fact, if they considered them, they rejected them, and refused to give title under them.

Third Proposition.-The assignment made March 19, 1866, to the Missouri, Kansas and Texas Railroad Company, by the Atchison, Topeka and Santa Fé Railroad Company, of its right to build the Emporia Branch, with its franchises and land rights connected therewith, and the construction of the Missouri, Kansas and Texas road as made, give no right to any indemnity lands-no authority to make a selection thereof. The resolution of the Legislature of Kansas of February 26, 1867, ratifying said assignment, is void.

Fourth Proposition.—If the assignment by the Atchison, Topeka and Santa Fé Company to the Missouri, Kansas and Texas Company is valid, yet the latter company acquired no title under the act of 1863 to the lands in controversy.

Citations for Appellee.

Fifth Proposition.-The Missouri, Kansas and Texas Company never acquired any legal or equitable title to any of the lands now in controversy, under or by virtue of the act of July 26, 1866.

Sixth Proposition.-It is submitted that the lands in controversy are not subject to any land grant, because included in the New York Indian Reservation under the treaty of January 15, 1838, never legally revoked.

In support of these several propositions Mr. Lawrence cited in his brief Benton v. Woolsey, 12 Pet. 27; United States v. Hughes, 11 How. 552; State v. Vicksburg & Natchez Railroad, 51 Mississippi, 361; Leavenworth, Lawrence & Galveston Railroad v. United States, 92 U. S. 733; Dubuque & Pacific Railroad v. Litchfield, 23 How. 66; Ohio Life Insurance & Trust Co. v. Debolt, 16 How. 416; Commonwealth v. Erie & Northeastern Railroad, 27 Penn. St. 339; Charles River Bridge v. Warren Bridge, 11 Pet. 420; Mills v. St. Clair County, 8 How. 569; Richmond Railroad v. Louisa Railroad, 13 How. 71; Rice v. Railroad Co., 1 Black, 380; United States v. Arredondo, 6 Pet. 691; Binghampton Bridge Case, 3 Wall. 51; Parsel v. Barnes, 25 Ark., 261, 272; Green v. Beeson, 31 Ind., 7; State v. Bank of State, 45 Missouri, 528; Andrae v. Redfield, 12 Blatchford, 407; S. C., 98 U. S., 225; Morrill v. Cone, 22 How. 75: Carver v. Astor, 4 Pet. 1; Crane v. Morris, 6 Pet. 598; Van Rensselaer v. Kearney, 11 How. 297; White v. Foster, 102 Mass. 375; George v. Kent, 7 Allen, 16; Harris v. Fly, 7 Paige, 421; McAteer v. McMullen, 2 Penn. St. 32; Hill v. Simpson, 7 Ves. 152; Sigourney v. Munn, 7 Conn. 324; Oliver v. Piatt, 3 How. 333; Landes v. Brant, 10 How. 348; Lea v. Polk County Copper Co., 21 How. 495; Bradish v. Gibbs, 3 Johns. Ch. 550; Smelting Co. v. Kemp, 104 U. S. 636 ; Van Wyck v. Knevals, 106 U. S. 360; Johnson v. Towsley, 13 Wall. 72; Quinby v. Conlan, 104 U. S. 420; Steel v. Smelting Co., 106 U. S. 447; Vance v. Burbank, 101 U. S. 514; Boardman v. Reed, 6 Pet. 328; Moore v. Robbins, 96 U. S. 588; Shepley v. Cowan, 91 U. S. 330; Cunningham v. Macon & Brunswick Railroad, 109 U. S. 416; O'Brien v. Perry, 1 Black, 132; Lindsey v. Hawes, 2 Black, 554; Bagnell v. Broderick, 13 Pet. 436;