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judgment of the court upon the evidence before it as to the amount of the assessment required. That assessment was leviable upon every share and against all persons liable as stockholders. If the plaintiff in error was among this number, he was not entitled to resist the recovery by reason of the nature or amount of the assessment, which was levied in conformity with the statute, but he was properly remitted to the Minnesota court for the adjustment of such equities as he might have.
It is said, however, that on the trial of the present action, there was no evidence that there were debts remaining unpaid, which antedated his transfer of stock. But the decrees, entered in the parent suit in Minnesota, which determined the amount of the outstanding claims and when they arose, were introduced in evidence. These decrees showed that there were debts, in excess of the amount demanded of the plaintiff in error, which arose before his shares were transferred. In the proceedings appropriate to the liquidation, which related to the allowance of these claims, the plaintiff in error by virtue of his connection with the corporation and the obligation he had assumed was sufficiently represented by the presence of the corporation itself (Bernheimer v. Converse, supra, p. 532); and we see no reason to question the admissibility of the evidence. There was no attempt to controvert it.
The remaining question relates to the statute of limitations. It is contended that the action is barred by $ 394 of the New York Code of Civil Procedure. In Bernheimer v. Converse, supra (p. 535), the court expressed the opinion that this section did not apply where the corporation was not a “moneyed corporation or banking association" and that the period of limitation under the New York Code was six years ($ 382). (See Platt v. Wilmot, 193 U. S. 602, where, in the opinion of the court delivered by
Mr. Justice Peckham, the history of $ 394 is reviewed.)
CHAPMAN & DEWEY LUMBER CO. v. ST. FRANCIS
PETITION FOR REHEARING.
No. 82. Petition for rehearing by defendant in error received and dis
tributed to the Justices on March 6, 1914.-Decided June 22, 1914.
In presenting petitions for rehearing a duty rests upon counsel to deal
with the case as it is disclosed by the record.
The facts are stated in the opinion.
Mr. Samuel Adams, Mr. H. F. Roleson, Mr.J. C. Hawthorne and Mr. N. F. Lamb for petitioner.
MR. JUSTICE VAN DEVANTER delivered the opinion of the court.
Leave to file a petition for rehearing is sought in this case. The petition has been examined, and we find it so wanting in merit that leave to file it must be denied. Doubtless, a formal denial would suffice, but we prefer to notice two statements in the petition.
As our opinion (232 U. S. 186) shows, the controlling question was, whether a patent issued to the State of Arkansas in 1858 under the Swamp-land Act embraced all the lands within the exterior boundaries of a designated
Opinion of the Court.
township, or only the lands lying without certain meander lines shown upon the official plat which, by reference, was made part of the description in the patent. The plat showed that large areas in the township, amounting to 8,000 acres or more, were meandered as bodies of water called “Sunk Lands,” and that the remaining areas were surveyed into sections and parts of sections, the aggregate of which, according to an inscription upon the plat, was 14,329.97 acres. Deducting from the latter 514.30 acres in fractional section 16, which had passed to the State under the school-land grant, left 13,815.67 acres, and this was the acreage given in the patent, from which section 16 was excepted. The mode of claiming lands under the Swamp-land Act was by presenting selection lists to the Surveyor General, and, as bearing upon what was intended to be conveyed by the patent, we stated that the list in this instance "described the township as containing 14,329.97 acres, the total of the surveyed areas as inscribed upon the plat,” and that this, less the 514.30 acres in fractional section 16, was the area given in the patent.
One of the statements in the petition for rehearing is that our opinion“ proceeds on the hypothesis, unsupported by the record,” that the Governor of Arkansas, in his request for the patenting of the township in question, stated its acreage. In assuming that it is our duty to deal with the case as it is disclosed by the record, counsel are clearly right. A like obligation rests upon counsel. The record (p. 207) contains a certificate from the General Land Office, introduced in evidence without objection, saying: “The original selection list of swamp lands in T. 12 N., R. 7 E., [the township in question) gives the area of the township as 14,329.97 acres, and that amount was also given in the approved list. Section 16, which passed to the State under the school grant, contains 514.30 acres, and as such lands were not granted under the swampland laws, the area of section 16 was deducted from the
total of the township, leaving 13,815.67 acres, which amount was accounted for in the patent.” The certificate stands uncontradicted in the record and was accepted by the Supreme Court of the State as determinative of the facts recited in it (100 Arkansas, 94, 97). Nothing more need be said upon this point.
Another statement in the petition is that we erred in treating the meandered areas embodying the lands in controversy as unsurveyed lands. The record (p. 1) shows that the complaint filed in the court of first instance, and which counsel seek to maintain, alleged that these lands“were left unsurveyed by the United States Government." The sunk lands were also described by the representative of the State as “not yet surveyed," when the State's claims under the Swamp-land grant were being adjusted and settled in 1895. H. R. Rep. No. 1634, 54th Cong., 1st Sess., pp. 5 and 32. This will suffice upon this point.
Leave to file petition denied.
BURKE 0. SOUTHERN PACIFIC RAILROAD
LAMPRECHT v. SOUTHERN PACIFIC RAILROAD
CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR
THE NINTH CIRCUIT.
Nos. 279, 280. Argued January 13, 14, 1913.—Decided June 22, 1914.
The act of July 27, 1866, making a grant of alternate odd numbered
sections of public land to the Southern Pacific Railroad Company in aid of the construction of its main-line railroad did not include mineral lands, but on the contrary excluded them from its operation
and provided that the company should receive other lands as in
demnity for them. The administration of the grant, including the issue of patents follow
ing the construction of the road, was committed to the Land Depart
ment of which the Secretary of the Interior is the supervising officer. It was contemplated by the granting act that the mineral or non
mineral character of the lands should be determined by the Land Department and that, depending upon the result, patents should
issue or indemnity be allowed. The patents were to be the legally appointed evidence that the lands
described in them had passed to the company under the grant. A patent issued under such a grant is to be taken, upon a collateral
attack, as affording conclusive evidence of the non-mineral character of the land and of the regularity of the acts and proceedings resulting in its issue, and, upon a direct attack, as affording such presumptive evidence thereof as to require plain and convincing proof to
overcome it. If the land officers are induced by false proofs to issue such a patent
for mineral lands, or if they issue it fraudulently or through mere inadvertence, a bill in equity on the part of the Government will lie to cancel the patent and regain the title; or, in the like circumstances, a prior mineral claimant who had acquired such rights in the land as to entitle him to protection may maintain a bill to have the patentee declared a trustee for him; but such a patent is merely voidable, not void, and cannot be successfully attacked by a stranger who had no interest in the land at the time the patent was issued
and was not prejudiced by it. One who relocates land under the mining law (Rev. Stat., $ 2324) by
reason of the failure of a prior locator to perform the required annual assessment or development work is not in privity with such prior
locator. The officers of the Land Department are without authority to insert in
patents exceptions not contemplated by law, and when they place
unauthorized exceptions in patents the exceptions are void. An exception inserted in patents issued under the grant here under
consideration to the effect that if any of the lands described should be found to be mineral the same should be excluded from the operation of the patents is unauthorized and void, because the granting act contemplated that the patents should effectually and uncondi
tionally pass the title. An agreement between the railroad company and the land officers that
such an exception in the patents should be effective is of no greater