Opinion of the Court.

was indebted to the defendant in other transactions had no tendency to show that he had not a valid claim against it in this one. If offered for the purpose of showing a conspiracy between plaintiff and defendant's agent, Carhart, to defraud the defendant, it is sufficient to say that this would constitute an independent defence, and one which was not set up in the answer, and was not admissible under a general denial.

Nor were the answers to these questions admissible to show his interest in the suit, since, being himself the plaintiff, that was already clearly manifest.

(3) There was no error in admitting the affidavit of Hurst. It seems that on the trial in the state court before a referee an order was obtained by the defendant upon the plaintiff to show cause why the answer should not be amended by setting up a conspiracy between plaintiff and defendant's agent; that the affidavit of Hurst was made in support of this order; and that a copy of said order was served upon plaintiff with the copy of this affidavit, which was the copy offered in evidence. Its admissibility being objected to upon the ground that it had not been properly proved, the plaintiff called as his own witness Mr. Chetwood, the attorney for defendant, who testified that he was unable to produce the original of the affidavit because it was upon the files of the state court; that he thought the copy was in the handwriting of a clerk who was in the office at the time; and that he presumed that the paper offered in evidence was the copy served on the other side with the order to show cause. His testimony was also corroborated by that of his managing clerk, who also swore that it was in the handwriting of one of the clerks in the office, and that he had no doubt it was a copy of the affidavit which was served with the order to show cause. The fact that the paper offered in evidence was served as a copy of the affidavit with the order to show cause in this same suit was sufficient evidence of its authenticity to enable it to be read against the defendant, who made use of it to obtain the order. Insurance Co. v. Newton, 22 Wall. 32; Richelieu Nav. Co. v. Boston Ins. Co., 136 U. S. 408.

The affidavit which was made by the sole managing agent

Statement of the Case.

of the defendant company, stated that "the ocean rate having risen, defendants collected the excess on the other side and refused to account for it in any way to plaintiff, with whom they supposed they had no contract and to whom they supposed they were under no liability." Having been made in this same suit, and having been used by the defendant to obtain the order for leave to amend its answer, it was competent evidence in behalf of the plaintiff as an admission by the defendant that the facts stated in it were true. Having affirmed that it was credible when used for one purpose defendant will not be permitted to repudiate it when offered for another purpose.

Various other exceptions were taken to the admission of testimony, but we find no error in respect to any of them. The instruction of the court to find in favor of the plaintiff was clearly correct, and the judgment will be

Affirmed.

SIOUX CITY AND IOWA FALLS TOWN LOT AND LAND COMPANY v. GRIFFEY.

ERROR TO THE SUPREME COURT OF THE STATE OF IOWA.

The grant of public land to the State of Iowa by the act of May 15, 1856, 11 Stat. 9, c. 28, "in alternate sections to aid in the construction of certain railroads in that State" was a grant in præsenti, which did not attach until the time of the filing of the map of definite location; although the beneficiary company (under the Iowa statute) may have surveyed and staked out upon the ground a line for its road before the filing. The plaintiff, claiming under the said grant to the State of Iowa, brought an action against the defendant to recover a tract, a part of the grant. The defendant claimed under a patent from the United States subsequent to the filing of the map of definite location, but issued on a preëmption claim made prior thereto, and filed a cross bill for quieting his title. Held, that it was not open to the plaintiff to contest the bona fides of the preëmption settlement.

THE Court stated the case as follows:

Statement of the Case.

On May 15, 1856, Congress passed an act granting lands to the State of Iowa to aid in the construction of certain railroads. 11 Stat. 9, c. 28. The grant was a grant in præsenti, and of alternate sections, with the familiar provision: "But in case it shall appear that the United States have, when the lines or routes of said roads are definitely fixed, sold any sections, or any parts thereof, granted as aforesaid, or that the right of preemption has attached to the same, then it shall be lawful for any agent or agents, to be appointed by the governor of said State, to select, subject to the approval of the Secretary of the Interior, from the lands of the United States nearest to the tiers of sections above specified, so much land, in alternate sections, or parts of sections, as shall be equal to such lands as the United States have sold or otherwise appropriated, or to which the rights of preëmption have attached as aforesaid."

By an act of the general assembly of Iowa, of date July 14, 1856, the Dubuque and Pacific Railway Company was made one of the beneficiaries of this grant. By section 6 it was provided: "The lines and routes of the several roads above described shall be definitely fixed and located on or before the first day of April next after the passage of this act, and maps or plats showing such lines or routes shall be filed in the office of the governor of the State of Iowa and also in the office of the secretary of the State of Iowa. It shall be the duty of the governor, after affixing his official signature, to file such map in the department having the control of the public lands in Washington, such location to be considered final only so far as to fix the limits and boundary in which said lands may be selected." The map of the definite location thus provided for was not received by the officers of the State until after September 27, 1856, and was filed at the General Land Office in Washington on October 13, 1856. Prior, however, to the 14th day of July, and the passage of the act making it the beneficiary of the Congressional grant, the Dubuque and Pacific Railroad Company had commenced the survey of its line, and had surveyed and staked out a line upon the surface of the ground along the land in controversy, which by such survey was within the limits of the grant. On the 19th of

VOL. CXLIII-3

Argument for Plaintiff in Error.

July, 1856, Griffey entered upon this land, filed his declaratory statement, and on the 5th of September located it with a military bounty land warrant, and received his certificate of location.

Mr. W. C. Goudy for plaintiff in error.

The patent to Griffey was void. There was no authority in the officers of the United States to issue or grant the same. If the former grant to the railroad company was unlawful the only way in which that question could be presented and decided was by a resort to the courts. There was no authority in the executive officers of the government to determine the respective rights of the parties claiming title to the land. The fact that a patent was issued and granted to Griffey is not evidence that it was rightfully issued. And if no further testimony is presented except the acts of Congress, the patents and deeds, a court would be compelled to decide in favor of the elder patent. If this proposition is correct, then the rights of the parties in this litigation must be determined upon the facts presented in evidence without any aid from the patent issued to Griffey. Ryan v. Carter, 93 U. S. 78; Whitney v. Morrow, 112 U. S. 693; Langdeau v. Hanes, 21 Wall. 521; Moore v. Robbins, 96 U. S. 530; United States v. Stone, 2 Wall. 525; Hughes v. United States, 4 Wall. 232; United States v. Bell Tel. Co., 128 U. S. 315; United States v. Schurz, 102 U. S. 378; Bicknell v. Comstock, 113 U. S. 151.

But it is claimed that the issue of the patent to Griffey in 1882 was authorized by an act of Congress of April 21, 1876. 19 Stat. 35, c. 72. The first section of that act is as follows: "Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, that all preëmption and homestead entries, or entries in compliance with any law of the United States, of the public lands, made in good faith by actual settlers, upon tracts of land of not more than one hundred and sixty acres each, within the limits of any land grant, prior to the time when notice of the withdrawal of the lands embraced in such grant was received at the local land office of the district in which such lands are situated, or after

Argument for Plaintiff in Error.

their restoration to market by order of the General Land Office, and where the preëmption and homestead laws have been complied with, and proper proofs thereof have been made by the parties holding such tracts or parcels, they shall be confirmed, and patents for the same shall issue to the parties entitled thereto."

Even if the acts of Griffey came within the language of this act of Congress, it would not be effectual for divesting the title of the elder grantee. It is not in the power of a legislative body to take the title from one person and invest it in another. Terrett v. Taylor, 9 Cranch, 43.

The alleged preemption was under the act of 1841. This court has held that the object of that act was to enable actual settlers by residence, who should enter upon the lands in good faith to make it a permanent home, to acquire a prior right to make entry thereof. Bohall v. Dilla, 114 U. S. 47; Atherton v. Fowler, 96 U. S. 513.

It is claimed that Griffey entered on the land on the 19th day of July, 1856, and erected a dwelling-house thereon; that he moved into the house on the first or second day of September, 1856, and remained there with his family for three days, when he left the premises and returned to his residence in Sioux City. The testimony of Griffey himself, which was the only evidence offered on the point in this case, shows that he lived with his wife and one or more children in Sioux City; that he had a trading post about two miles south of Sioux City; that he kept a saloon, and also had a license to practice law. In the year 1857, he removed to the west of the Missouri River and never afterwards lived east of that river. It is very clear that he did not comply with the preëmption law.

It follows that the defendants are not entitled to relief in a court of equity, and the decree confirming their title and declaring the title of the plaintiff to be null and void, was erroneous. It is not necessary in this court to cite authorities to sustain the proposition that a party must come into a court of equity with clean hands, and that he must show himself entitled, according to the rules of such a court, to the relief demanded.