by boundaries and never recorded the same, as required by the regulation, until long after the passage of that act, the fourteenth section of which declares as follows: "All laws heretofore passed in said Territory making grants of land, or otherwise affecting or incumbering the title to lands, shall be, and are hereby declared to be, null and void."

Referring to this act, this court declared in Lownsdale v. Parrish, 21 How. 290, that Congress passed no law in any wise affecting title to lands in Oregon till the passage of the act of Sept. 27, 1850, c. 76, and that prior to that date no one could acquire any title to or interest in the public lands in that Territory.

It follows that there could be no constructive possession of the public lands. When, therefore, in August, 1847, the appellant voluntarily abandoned its possession of the lands in controversy to another missionary society, it lost every shadow of claim thereto. Its right was a mere possessory right, without other title. It had no rights which it could reserve. When the American Board, in December, 1847, abandoned the lands in controversy the appellant had no rights therein. The reasons which induced the abandonment of the lands by the missionary societies, whether a new policy on the part of the appellant or fear of the Indians on the part of the American Board, are entirely immaterial. When the lands were abandoned for any reason all right in them was lost, and they were open to the occupancy of any one who might choose to take and hold them.

The method adopted by the appellant to turn over the station to the American Board by an actual transfer of possession was as effectual as any could be. It could be done only by yielding the actual occupancy, and this could not be effected by a written transfer. It could be accomplished only by the going out of one party and the going in of the other.

If the appellant had, in August, 1847, executed the most formal deed, conveying the lands to the American Board, and had stipulated therein that on failure of the latter to maintain a mission thereon for the benefit of the Indians, or upon its abandonment of the lands, all the rights of the appellant should revert to it, and it should be entitled to resume immediate

possession, such a writing would have been inoperative and futile. The appellant had no rights in the land which it could convey, and no rights which it could reserve.

These views are supported by Stringfellow v. Cain, 99 U. S. 610, brought up from the Territory of Utah. The act of March 2, 1867, c. 177, "for the relief of the inhabitants of cities and towns upon the public lands," provides that whenever any portion of the public lands of the United States has been or shall be settled upon and occupied as a town site, and therefore not subject to entry under the agricultural pre-emption laws, it shall be lawful for the authorities of the town to enter the lands so settled and occupied in trust for the several use and benefit of the occupants thereof, the execution of which trust to be conducted under such rules as the legislature of the State or Territory may prescribe. Under this act, it was held in that case that where a party had been in the occupancy of a lot, but prior to the passage of the act voluntarily withdrew therefrom and gave it up to others, the rights, which depended-on keeping the possession, were gone.

The appellant contends that the language of the first section of the act of Aug. 14, 1848, under which it claims, implies that it had some title to the lands in question before the act was passed. It places stress on the words "that the title to the lands be confirmed and established in the several religious societies to which said missionary stations respectively belong," and says there must have been some previous title which could be confirmed and established.

We have seen that it was not possible to acquire any title as against the United States before the passage of this act. If, therefore, the force is to be given to the words of the statute. which the appellant claims for them they must refer to the possessory title under the regulations above mentioned of the provisional government. But no steps, as we have seen, were taken by appellant to establish its claim under those regulations. It had simply settled upon the public domain as a tenant by sufferance, without authority of any law or regulation of any government, and had done no act by which it could acquire any claim of title. Whatever, therefore, may have been

the case with other missionary societies, the appellant had no title of any kind which could be confirmed and established by the act. The American Board was in no better position.

Neither of the societies acquired any title under the act of 1848. The writing executed in 1849 by Messrs. Walker, Spaulding, and Eels, and the release made by the American Board to the appellant in 1859, after Dalles City had entered. and paid for the land, and the patent of the United States in 1875, which was a mere release, conveyed no rights in the lands in controversy to the appellant.

The decree of the Circuit Court was, therefore, right, and must be

Affirmed.

NOTE. - Missionary Society v. Kelly. Missionary Society v. Wait.

Appeals from the Circuit Court of the United States for the District of Oregon.

These cases were submitted at the same time and by the same counsel as was the preceding case.

MR. JUSTICE WOODS delivered the opinion of the court.

These cases were in all respects similar to Missionary Society v. Dalles, supra, p. 336, except that the appellees claimed under a title different from that relied on by Dalles City. So far as the title of the appellant is concerned, they and that case were tried upon the same evidence. It follows, that if the appellees in these cases show an equitable title in themselves, the decree should be affirmed. This they have done. They all claim title under one Winsor D. Bigelow, whose title was derived under the act of Sept. 27, 1850, c. 76, commonly called the Donation Act. This act gave, upon certain conditions, to every white settler upon the public lands, being a citizen of the United States, above the age of eighteen years, a half section of land if he were a single man, and a whole section if he were a married man. The record clearly shows a full compliance by Bigelow with the law, and establishes his right to the lands in controversy, which he afterwards conveyed to the appellees in these cases. The decree of the Circuit Court in each of these cases, which is similar to the decree in that case, is therefore right and should be affirmed; and it is

So ordered

CHAPMAN v. COUNTY OF DOUGLAS.

A. conveyed, March 5, 1859, to a county in Nebraska certain lands for a "poorfarm," and they were thereafter used as such. The county, pursuant to its agreement, made one cash payment, and for the remainder of the stipulated consideration gave its notes secured by mortgage, and payable respectively in one, two, three, and four years. A. assigned the notes to B. Some time thereafter, the Supreme Court of the State decided that, by the purchase of lands for such a purpose, a county could not be boud to pay at any specified time the purchase-money, or to secure it'y mortgage upon them, but was limited to a payment in cash and to the levy of an annual tax to create a fund wherewith to pay the residue. A. and B., the notes remaining unpaid, filed, Sept. 10, 1877, a bill praying for a reconveyance and an accounting, or, should the county elect to retain the lands, then for a decree for the value of them. Held, 1. That in view of that decision, the contract being unauthorized only so far as it relates to the time and mode of paying the purchasemoney, and the title to the lands having passed by the conveyance, the county holds that title as a trustee for the benefit of B., and that he is entitled to the relief prayed for. 2. That unless the sum due on account of the purchasemoney, after a proper allowance shall be made as a compensation for a failure of A.'s title to a small part of the lands, be paid within a reasonable time, to be fixed by the court below, having reference to the necessity of raising the same by taxation, as prescribed and limited by the statute, the county be required to execute and deliver a deed, releasing to A. all the title acquired under his deed, and that he convey the same to B. 3. That the suit is not barred by the Statute of Limitations.

APPEAL from the Circuit Court of the United States for the District of Nebraska.

This is a bill in equity filed Sept. 10, 1877, by Chapman, a citizen of Tennessee, and the representatives of Charles A. Ely, deceased, citizens of Ohio, against the county of Douglas, a municipal corporation of Nebraska.

The object of the bill is declared to be, and the prayer corresponds to it, to compel the county to surrender possession of two certain tracts of land therein described, one of one hundred and sixty acres and one of ten acres; and to reconvey and release the title thereto, which the county acquired under a deed made by Chapman to the county on March 5, 1859; and for an account of the rents and profits thereof; or, "in case said county of Douglas and the corporate authorities thereof shall elect and request to be allowed to retain and hold the land described, then and in that case to compel said county and the corporate authorities thereof to pay to or for your ora

tors, as the court shall direct, the reasonable price and value of said land, as stated in said deed of conveyance, with lawful interest thereon from the date of said deed to the time of the making of such payment."

It appears that on March 4, 1859, an agreement under seal was entered into between Chapman of the first part and the county of Douglas, the latter acting by the county commissioners, of the second part, whereby he agreed to sell and convey the premises in controversy "on the following conditions, to wit: That the party of the second part shall pay to the party of the first part, at the ensealing and delivery of a warrantee conveyance from the party of the first part to the party of the second part of the real estate aforesaid, two thousand dollars ($2,000) in county orders of the county of Douglas aforesaid on the treasurer of said county of Douglas, and the balance of six thousand ($6,000) dollars in four equal annual payments, together with interest on the amount due at ten (10) per cent per annum until paid; and the said party of the first part will, when required, resign to and give up the possession of said property to the party of the second part, or its assigns or agents, immediately on the payment of the first payment herein before enumerated, and put the said county of Douglas or its agents in full and peaceable possession of said described property. And the said party of the second part agrees to purchase said property on the terms aforesaid of and from the party of the first part, and for the security of the deferred payments, as hereinbefore set forth, to give a mortgage upon said described property to the party of the first part."

On the next day, in pursuance of this agreement, Chapman and wife executed and delivered to the county commissioners a deed to the county of Douglas for the land, which was accepted and placed by them on record. The first instalment of the purchase-money, $2,000 in county orders, was paid at that time, when, also, the county commissioners, in the name of the county, executed and delivered to him the four promissory notes required by the agreement, payable in one, two, three, and four years from that date respectively, and a mortgage, in the usual form of a conveyance in fee, with a defeasance, to secure the payment of the same, which was accepted and recorded.