ant in this litigation, is the same corporation which conducted the contest in the name of Wheeler in the land office, and which became bound by the decision therein. This conclusion seems to be rendered inevitable by the fiduciary relation which Draper, Chandler, and Hillard and the principals of Draper and Chandler, Craig and Belden, bore to the iron company. All of them but Craig must have had actual knowledge of the interest of the iron company in Wheeler's claim, and of the estoppel of the company and of James by the secretary's decision; and Craig had constructive knowledge of these facts, because the knowledge of his agent, Draper, was his knowledge. Neither Draper, nor Chandler, nor Hillard, nor Belden, nor Craig, nor any other party for whom either Draper or Chandler negotiated a purchase of an interest in this land, could lawfully buy and hold it adversely to the iron company. They all stood in such fiduciary relations to that corporation that any interest which they took nec essarily became immediately charged with a trust in favor of that company, and any attempt to hold it adversely would constitute a breach both of faith and of trust. This state of facts compels a choice of two deductions, either that the attorneys and the vice president of the iron company were faithless to their trust, and were buying for themselves, or for Craig and Belden, who were char ged with their knowledge, interests adverse to their client in land which it claimed, or that all these parties, like Wheeler, took their titles and claims as trustees and agents for the corporation, and held them for its benefit. The presumptions of integrity and innocence, the common practice of large corporations to take titles to their property in the names of trusted employés, to which we cannot be blind, and the high character of the lawyers, who conducted and effected all these transactions leave no doubt which of these inferences must be adopted. It is that the appellants are mere trustees or agents for the Minnesota Iron Company, which holds the beneficial interest in and is really conducting this liti gation in their names, and that the decision of the secretary that Hartmann was the first applicant for the land on February 23, 1889, renders that question res adjudicata between the latter and their cestui que trust and principal, the iron company.

Nor could the appellants escape from the estoppel of this decision if we were in error in our last deduction, and they were purchasers of the title and the lease they hold for themselves. When Hartmann filed his application and scrip for this land, he placed upon the record a notice that he claimed to be the equitable owner of it, and to charge the title to it in the government with a trust in his favor. From that time forth, if he was the first applicant on February 23, 1889, the United States held the naked legal title in trust for his exclusive benefit. When the decision of the secretary found that issue of priority in his favor, James, Wheeler, and the Minnesota Iron Company, and those claiming title under them, were thereby estopped from again litigating that issue in any suit to establish title to this land between them and Hartmann and his grantees. There have been no purchasers without notice of these facts in this case. Hillard, who was the vice president of the iron com

pany for the last three years of its contest in the land department, must have known them; Draper and Chandler, the attorneys who conducted that litigation, knew them; and Craig and Belden, for whom Draper and Chandler purchased all the interests they acquired, were charged with the knowledge of their agents in these purchases. Moreover, they are in fact the mere grantees of James, and, so far as the estoppel of the secretary's decision is concerned, they stand in his. shoes. The contention of counsel that Craig, James, Belden, and Hillard are not bound by that decision because they no longer claim this land under the homestead application of James, but under a new and independent title initiated by the entry of Craig, has been examined. But it is impossible to wink so hard as not to see that the only foundation their claim of title has is that same homestead application of James on February 19, 1889, upon which his contest in the land department rested, and that the actual transaction between James and Craig was a transfer of James' claim to Craig, to accomplish which Draper used a relinquishment by the former and an entry by the latter as a substitute for some other method of conveyance. It may be conceded that, if James or the appellants claimed this land under a new and independent title, the decision of the secretary might not conclude them. Nay, more, it may be admitted that that decision does not estop them from litigating any addi tional rights and claims which they have acquired subsequent to its rendition. The relinquishment of a claim to land as a homestead by one party, and its entry with scrip by another, sounds like, and doubtless often is the initiation of, a new and independent title. But courts of equity look through documents, forms, and appearances, and determine the legal effect of acts and instruments by the actual transaction which they evidence. James entered this land as a homestead on August 6, 1895, under the decision of the secretary of December 21, 1894, that he had acquired the right to do so and the equitable title to the land on February 19, 1889. According to that decision, he held the equitable title to the land on September 23, 1895, when he had the right to transform it into a legal title, and to pay for it by a residence upon the property in accordance with the homestead laws of the United States. For $6,500 and a deed of one-half of it from Craig he relinquished his right to pay for it by residence, and Craig entered, and paid for it with scrip. When these things had been done, Craig held the same equitable title which James had owned before, plus a receipt for payment for the legal title. The only additional acquisition was the perfection of the right to the legal title by the payment, and, if that question of payment was here in issue, the decision of the secretary would not conclude it. Aside, however, from this immaterial question of payment, the actual transaction was, and its only legal effect was, a transfer of the equitable claim of James to Craig. The essential foundation of that claim before the transfer was James' application to enter on February 19, 1889, and the decision of the secretary on December 21, 1894, and the indispensable basis of that claim after the transfer and the entry of Craig was that same application and decision. Strike either down, and the claim of Craig and of his

grantees is without foundation, and the equitable title of Hartmann prevails. The result is that in reality, in legal effect, Craig, James, Hillard, and Belden are the immediate and remote grantees of James, in privity of estate with him, bound by notice of the equitable title of Hartmann and by the estoppel of the decision of the secretary that Hartmann was the first applicant to enter this land on the morn ing of February 23, 1889.

For the reasons which have now been stated the conclusion of this court is that in the contest before him the secretary decided on December 21, 1894, that Hartmann was the first applicant to enter this land on the 23d day of February, 1889; that that question was a material and necessary issue between Hartmann and James, and also between Hartmann and Wheeler in that contest; that this suit involves the same cause of action,-the equitable title to the same land there in question between James and Hartmann; that it is between privies in estate with the parties to that contest claiming the title in the same rights, respectively, which were there litigated; that the decision of the secretary rendered the issue of fact whether Hartmann or Wheeler was the first applicant res adjudicata between the parties to this suit, and was competent and conclusive evidence thereof in this litigation. In an action between the same parties, or those in privity with them, upon the same claim or demand, a decision upon the merits is conclusive not only as to every matter offered, but as to every admissible matter which might have been offered to sustain or defeat the claim or demand. But in a case in which the second litigation is upon a different claim or demand, the prior judgment is an estoppel as to those matters in issue or points in controversy which were actually litigated and decided, and upon which the finding or judgment was based. Cromwell v. County of Sac, 94 U. S. 351, 352, 24 L. Ed. 195; Board v. Platt, 79 Fed. 567, 571, 25 C. C. A. 87, 91, 49 U. S. App. 216, 223; Same v. Sutliff, 97 Fed. 270, 273, 274, 38 C. C. A. 167, 170.

The testimony offered by the appellants dehors the record in the contest before the secretary to show that Wheeler was the first and Hartmann the second applicant was properly disregarded by the court below, because they did not plead or offer to prove that the secretary's decision of this question of fact was induced by fraud or mistake, and, in the absence of such pleading and proof, his finding was conclusive. U. S. v. Northern Pac. R. Co., 95 Fed. 864, 870, 882, 37 C. C. A. 290, 296, 30S.

Finally, it is said that the Porterfield scrip with which Hartmann applied to enter the land had been exhausted by its use to purchase other land many years before. In 1868, Charles A. Gilman was the owner of this scrip, and he applied to the register of the land office at St. Cloud, Minn., to purchase for cash a certain 40 acres of land, and delivered this scrip to the register in payment for it. The register allowed and reported the entry of the land as a cash entry, and the scrip was sent to the United States treasury in payment for it. The land so entered was not open to private purchase for cash, but was open to the location of this scrip. On the other hand, a cash entry could not be paid for with land warrants. The

result was that the scrip was returned to Gilman, and the land was patented on the cash entry in 1868. About 17 years later, a deficit was found to exist in the accounts of the receiver of the land office at St. Cloud, because he had obtained no cash for the entry upon which this patent was issued. Gilman again produced the scrip to the receiver to pay this deficit, but the government returned it to him, and he paid for the land in cash. Hartmann subsequently bought the scrip. There are two reasons why these transactions did not invalidate the land warrant in the hands of Hartmann. In the first place, Gilman never succeeded in either locating or paying for his land with the scrip, and the government returned it to him in full force, unused and uncanceled. Conceding that the land which he secured was not open to private entry for cash, yet it was land of the disposition of which the land department had jurisdiction, and in this collateral attack upon the judgment of that department, evidenced by its patent, to the effect that the land could be lawfully sold for cash, its decision is invulnerable. U. S. v. Winona & St. P. R. Co., 67 Fed. 948, 957, 15 C. C. A. 96, 105, 32 U. S. App. 272, 286. In the second place, the United States are the only parties that can claim the ownership or cancellation of this scrip, and they are estopped from doing so by their patent of the land for cash, by their refusal to take the scrip in payment for it, and by their return of it uncanceled. This scrip was assignable, and Hartmann had the right to rely, and doubtless he did rely, upon the result of these acts of the government, upon the absence of any cancellation or marks of location upon the scrip when he purchased it, and neither the government nor strangers to these transactions can successfully attack the validity of or the title to the scrip on their account. U. S. v. Winona & St. P. R. Co., 67 Fed. 948, 960, 15 C. C. A. 96, 108, 32 U. S. App. 272, 291.

All the questions of moment presented by counsel for the appellants in these suits have now been considered and decided, and, conceding the proposition with which they opened their argument,that it was incumbent upon the appellee to prove by competent evidence the facts necessary to entitle it to the title to the land in question under the rules of law applicable to the case, the conclusion of the whole matter is that it has done so, that there was no prejudicial error in the rulings or decrees of the circuit court, and that they must be affirmed. It is so ordered.

(107 Fed. 618.)

In re FIECHTL et al.

PETER HAND BREWERY CO. v. SECURITY TITLE & TRUST CO. (Circuit Court of Appeals, Seventh Circuit. April 20, 1901.)

1. APPEAL-ALLOWANCE.

No. 782.

Allowance of appeal need not be by a formal order, but may be by approval of appeal bond.

2. SAME-CITATION.

Citation is not necessary where appeal is taken during the term at which the order appealed from was entered.

46 C.C.A.-32

Appeal from the District Court of the United States for the Northern District of Illinois.

Abel L. Allen, for appellant.

M. M. Jacobs, for appellee.

Before WOODS, JENKINS, and GROSSCUP, Circuit Judges.

PER CURIAM. This appeal is from an order entered on March 2, 1901, which concludes with these words: "Whereupon, the Peter Hand Brewing Company, by its solicitors, prays an appeal." On March 6th an order was entered fixing the amount of the appeal bond. On March 11th an order was entered showing the filing at 10 o'clock a. m. of the appeal bond, approved by the judge of the court, and on the same day another entry was made, showing the filing at 12:15 o'clock p. m. of an assignment of errors. On April 6th the district court, on motion of the appellant, "ordered that the time in which to file the record on appeal in the cause be, and hereby is, extended to Tuesday, April 9, 1901, at 11 o'clock a. m." The record was filed here on April 9, 1901.

The Security Title & Trust Company, appearing specially for the purpose of making the motion, has moved to dismiss the appeal for the reasons:

"First. That appellant has failed to perfect its appeal, in that it has not filed any petition with its assignments of error, as required by rule 11 of this court. Second. That no appeal herein has been allowed. Third. That no appeal was prayed or allowed after filing assignments of error. Fourth. That no proper assignments of error have been filed, as required by rule 11. Fifth. That said assignments of error are vague, indefinite, and altogether uncertain. Sixth. That no citation has been issued or served herein as required by the rules of this court."

There was a substantial, though not exact and technical, compliance with the rules regulating the taking of appeals. The allowance of an appeal need not be by a formal order; it may be shown by the approval of the appeal bond. A citation is not necessary when an appeal is taken during the term of court at which the order appealed from is entered. Brandies v. Cochrane, 105 U. S. 262, 26 L. Ed. 989; Sage v. Railroad Co., 96 U. S. 712, 24 L. Ed. 641; Draper v. Davis, 102 U. S. 370, 26 L. Ed. 121; Trust Co. v. Stockton, 18 C. C. A. 408, 72 Fed. 1.

The motion is overruled.

(107 Fed. 639.)

EARLE V. CARSON.

(Circuit Court of Appeals, Third Circuit. March 12, 1901.)

No. 29.

NATIONAL BANKS-STOCKHOLDERS SUBJECT TO ASSESSMENTS — TRANSFER OF SHARES IN GOOD FAITH.

An owner of shares in a national bank, who sold the same in good faith, without knowledge or reason to believe that the bank was insolvent, and who did everything that was reasonably possible to have the proper formal transfer made on the books of the bank, cannot be treated as a