The plaintiffs in error fixed the terms of their warranty, and we cannot import other terms into the writing.

The third proposition, that the court erred in excluding evidence of an antecedent conversation between the salesman and one of the plaintiffs in error, is disposed of by the well-settled rule that, when parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, was reduced to writing; and all oral testimony of a previous colloquium between the parties, as it would tend in many instances to substitute a new and different contract for the one which was really agreed upon, to the prejudice, possibly, of one of the paries, is rejected." 1 Greenl. Ev. § 275, and authorities cited; White v. Bank, 102 U. S. 658; Metcalf v. Williams, 104 U. S. 93; Martin v. Cole, Id. 30.

On the whole case we find no material error, and the judgment of the court below is affirmed.

1. Under Code Civil Proc. Neb. &$ 134, 135, providing that every material allegation of the petition shall be considered as true by failure of the answer to controvert it, there is no question for the jury involving the jurisdiction of the circuit court in an action of ejectment, where the averment of diverse citizenship in the petition is uncontroverted by the answer.

2. Under Act Cong. 1875, (18 St. p. 472, §5,) providing that if "it shall appear to the satisfaction of said circuit court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said circuit court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the said circuit court shall proceed no further therein, but shall dismiss the suit; but the order of said circuit court dismissing or remanding said cause to the state court shall be reviewable by the supreme court, "-a suit cannot properly be dismissed, as not within the jurisdiction of the court, unless the facts, when made to appear on the record, create a legal certainty of that conclusion.

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3. Under Act Neb. 1861, relating to tax-deeds, providing that "such conveyance shall be executed by the county treasurer, under his hand and seal,' a tax-deed not executed by the treasurer under his seal of office is void.

4. One having a constructive but mixed possession of lands under a void tax-deed, and not in actual possession of any part thereof, cannot acquire title by adverse possession.

5. Under a power of attorney to make conveyances when sales are made by certain other specified persons, the attorney in fact has only a naked power to convey when such a sale has been made, and one claiming under a deed from him must show that it was authorized by such a sale.

6. As under the laws of Nebraska the title of a purchaser at execution sale depends on the confirmation of the sale, and a court has power to vacate or modify its own orders or to rescind decrees, the purchaser at an execution sale, which is tem

porarily confirmed but finally set aside, cannot thereafter convey any title.

7. The petition described the premises as "the west half of the north-east quarter of the southwest quarter," etc. The finding and judgment described "a tract 1,400 feet in length by 750 feet in width. " Held that, as excess frequently occurs in government surveys, it could not be said that there was error.

In error to the circuit court of the United, States for the district of Nebraska.

This was an action of ejectment brought in the circuit court of the United States for the district of Nebraska, June 14, 1884, by Rowena Young, a citizen of Ohio, against John C. Deputron, a citizen of Nebraska, to recover certain premises in the petition named. The defendant answered, denying plaintiff's ownership and right to possession; and setting up title under a taxdeed and purchase in good faith, and without notice, for $10,000 paid, being the full value, and 10 years' adverse possession. To this answer a reply, specifically denying its averments, was filed by the plaintiff. At the November term, 1885, of said court, a trial was had, which resulted in a verdict for the defendant, and judgment thereon, which was set aside on motion of plaintiff, and a new trial awarded. In March, 1886, the cause was tried a second time, and a special verdict of 41 findings rendered by a the jury, as follows:

*(1) That Jane Y. Irwin obtained title to said lands by patent from the United States, December 15, 1862, and on the 9th of August, 1867, conveyed the same to William P. Young, who, on the 5th of February, 1874, reconveyed the same to Jane Y. Irwin, who, on the 11th day of June, 1884, conveyed said lands to the plaintiff, Rowena Young.

“(2) On the 31st of March, 1874, Jane Y. Irwin and husband entered into a contract with N. S Scott, Samuel Boyd, and Milton La Master for the selling and subdivision of said lands.

"(3) And said Scott, Boyd, and La Master soon after entered upon said lands under said contract, and staked out the block corners and street intersections, being engaged in the survey on the lands in controversy and other lands for a period of about two months, finishing their survey about the last of May, 1874.

"(4) On the 12th of August, 1875, Jane Y. Irwin and her husband executed a power of attorney to William T. Donavan to enable him to make conveyances to purchasers when sales were made by Scott, Boyd, and La Master, and to facilitate their operations under their contract of March 31, 1874.

*(5) We find that there was no assessment of the land in controversy for taxes in the year 1867, nor was the same borne upon the tax-list of that year.

"(6) We find the tax-deed of June 12. 1871, executed by John Cadman, county treasurer, was not sealed by the county treasurer with his official seal, nor did the county treasurer then have an official seal.

"(7) We find that the county treasurer's deed executed by R. A. Bain, dated September 15, 1871, was not sealed by the county treasurer, nor did the county treasurer then have an official seal.

"(8) We find the forty acres of land sold

by the sheriff to E. J. Curson, and conveyed by deed October 10, 1877, was at that time of the value of $20,000.

"(9) That the confirmation of sale was set aside by the district court of Lancaster | county, in which it had been made November 3, 1877, before E. J. Curson had made any conveyance to any one, and was never afterwards confirmed.

"(10) The jury find that Nelson C. Brock, and his grantees had mixed possession of the west half of the south-west quarter of section 24, township 10, range 6, in Lancaster county, Neb., for ten years prior to the commencement of this suit, but the jury find that parties claiming under defendant's grantors held portions of said property, and parties holding under plaintiff's grantors held portions of said property, so that said possession was in controversy and disputed, and mixed down to the year 1877.

"(11) That up to the year 1876 the said defendants and their grantors had mixed possession of the land in dispute, to-wit, the north-east quarter of the south-west quarter of section 24, township 10, range 6, but said land was open, vacant, and unoccupied, except by the city pest-house, and was used as a common.

(12) The jury also find that parties held mixed possession of portions of the west half of the south-west quarter of section 24, township 10, range 6, during the years 1874 and 1875, who did not attorn to or acknowledge possession in either the plaintiff or the defendants, or any one under or by whom they claim.

(13) The jury find that the conveyance from Jane Y. Irwin and John Irwin by William T. Donavan, attorney in fact, to J. P. Lantz, was a fraud upon the power held by said Donavan, and was given by Donavan and taken by Lantz with the intention of defrauding Jane Y. Irwin, and that Samuel W. Little had full knowledge of such facts, and procured such conveyance to be made with such knowledge and design.

(14) That the said deed by Donavan to Lantz, and the deed of same by Lantz to Little, were executed at the same time, and were parts of one transaction, and that the north-east quarter of the southwest quarter of section 24, township 10, range 6, was on the 25th day of October, 1879, worth $30,000, and that the balance of the land then by Donavan conveyed would exceed $70,000 in value at that time. "(15) That during the years 1874, 1875, and 1876 parties holding under the grantors of plaintiff held portions of the west half of the south-west quarter of section 24, township 10, range 6.

"(16) We find that all the defendants had full knowledge of the revocation of the power of attorney aforesaid upon the record by Jane Y. Irwin, and of the facts therein stated prior to any purchase made by them or either of them.

"(17) That one N. C. Brock, through whom the defendant traces one chain of his title, on the 12th day of June, 1871, received from the county treasurer of Lancaster county, Neb., a tax-deed of that date of the north half of and 20 acres off the west side of the south-west quarter of

the south-west quarter of section 24, township 10, range 6 east, in Lancaster county, Neb., the premises in controversy being in the north-east quarter of the south-west quarter aforesaid, which tax-deed purported to be issued for the taxes assessed against the above-described parcels of land, respectively, for the year 1867, which taxdeed was on the 13th day of June, 1871, recorded in the county clerk's office of Lancaster county, Neb.

"(18) That on the 15th day of December, 1871, the county treasurer of Lancaster county, Neb., delivered to said Nelson C. Brock a second tax-deed of that date covering the north-east quarter of the southwest quarter of section 24, township 10, range 6 east, in Lancaster county, Neb.. including the property in dispute, which deed was issued for the tax of the year 1868, and which tax-deed was on the 18th day of December, 1871, recorded in the county clerk's office of Lancaster county, Neb.

"(19) That on the 18th day of December, 1871, said Nelson C. Brock made, executed, and delivered to one Charles T. Boggs a lease in writing of that date of the north half of and the south-west quarter of the south-west quarter of section 24, township 10, range 6 east, in Lancaster county, Neb., for the term of two years from that date, which lease contained a leave or license to the lessee to remove all buildings placed upon said premises by him on or before the termination of said lease, which said lease was recorded in the county clerk's office of Lancaster county, Neb., on the 2d day of January, 1872.

(20) That on the 18th day of December, 1873, the said Nelson C. Brock made, executed, and delivered to said Charles T. Boggs a second lease in writing of that date of the north half and the south-west quarter of the south-west quarter of section 24, township 10, range 6 east, in Lan-caster county, Neb., for the term of two years from that date, which said lease contained a similar provision permitting the lessee to remove all building and improve ments by him erected or permitted to be erected on said premises off from the same at any time before the expiration of the said term therein granted, which lease was on the 5th day of January, 1874, recorded in the county clerk's office of Lancaster county, Neb.

"(21) That in the month of December, 1871, the said Charles T. Boggs, claiming title under the said lease first aforesaid, entered into the mixed possession of the said premises by assuming control and ownership over the same, and by collecting rents from squatters and persons then located upon said premises, and subleased other portions of said premises, and continued to exercise mixed possession of said premises down to the time he yielded his mixed possession of the same to Samuel W. Little, and that he paid the rent to N. C. Brock for the said premises during the terms of the two leases above mentioned.

"(22) That at the expiration of his term under said leases he yielded his mixed possession of the said premises to Samuel W. Little.

“(23) That on the 18th day of May, 1874, said Nelson C. Brock and his wife, by their

*240note

deed of quitclaim, conveyed all the said premises, the north half of the south-west quarter and the south-west quarter of the south-west quarter of section 24, township 10, range 6 east, to Samuel W. Little, which deed was duly recorded in the county clerk's office of Lancaster county, Neb., on the 26th day of May, 1874.

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(24) That in or about the month of May, 1873, Charles T. Boggs subleased the north half of the south-west quarter of section 24, township 10, range 6 east, to one D. A. Gilbert, who, on or about that date, entered upon the mixed possession of the same, and erected a ranch for cows, or milk ranch, on the north-west quarter of said quarter section, all the said north half of said south-west quarter being at the time he entered therein wholly vacant and unoccupied lands, and that he continued under said lease in the mixed possession and occupation of the same until in or about the year 1878, when he moved off his cattle ranch, and surrendered his mixed possession of the same, at the instance of S. W. Little, having during that period attorned and paid rent to Charles T. Boggs.

"(25) That in the year 1876 Samuel W. Little began breaking up and actually improving the north-east quarter of said quarter section, and erected windmills and placed other valuable improvements thereon, planted trees and shrubbery, and set out hedges and other fences, and thence, until he delivered his mixed possession of the said property to his several grantees, had the mixed possession of the said premises, said north-east quarter of the southwest quarter of section 24, township 10, range 6 east.

"(26) That on the 19th day of May, 1877, in the district court of Lancaster county, in the state of Nebraska, at the April term of the said court, in a certain action therein pending, wherein Milo H. Sessions was plaintiff and John Irwin and Jane Y. Irwin were defendants, a judgment was obtained in the said action in favor of the said H. M. Sessions and against said John Irwin and Jane Y. Irwin, by the consideration of said court, wherein it was considered by said court that the said plaintiff therein should recover from and against the said defendants, John Irwin and Jane Y. Irwin, the principal sum of $350, besides costs therein, taxed at the sum of $41.38, and for which said sums execution was awarded out of the said court; that thereafter execution was issued upon said judgment against the said John Irwin and Jane Y. Irwin, and the same coming to the hands of the sheriff of the said county, for want of goods and chattels whereon to levy the said writ, he seized and caused to be appraised, advertised, and sold, as the property of the said Jane Y. Irwin, the northeast quarter of the south-west quarter of section 24, township 19, range 6, to one E. J. Curson, for the sum of $30; that thereafter he made due return of his said sale unto the said district court; and afterwards, on the 2d day of October, 1877, the following proceedings were had in the said court, to-wit: 'H. M. Sessions against John Irwin and Jane Y. Irwin. This case comes on upon motion of plaintiff for confirmation of sale heretofore had in this

case, and it is hereby ordered by the court that cause be shown by Tuesday next, October 9th, why sale should not be confirmed.' That afterwards, on the 10th day of October, 1877, that being the 9th day of the October, 1877, term of said court, the following proceedings were had in said action therein: 'Milo H. Sessions v. John Irwin and Jane Y. Irwin. This case comes on upon the motion of plaintiff for confirmation of sale heretofore had under former order of this court, and the court, upon a careful examination of the proceedings thereof, finds that the same have been had in all respects in conformity to law and the orders of this court. It is ordered that the said proceedings and sale be, and they are hereby, approved and confirmed; and it is further ordered by the court that the said sheriff convey to the purchaser, by deed in fee-simple, the lands and tenements so sold.' That afterwards, and on the 10th day of October, 1877, pursuant to the foregoing proceedings, Sam. McClay, sheriff of said county, made, executed, and delivered to said E. J. Curson, purchaser, a sheriff's deed of conveyance of the said premises, the north-east quarter of the south-west quarter of section 24, township 10, range 6 east, in Lancaster county, Neb.; which deed was by the said E. J. Curson filed and recorded in the county clerk's office of Lancaster county, Neb., on the 10th day of October, 1877, at 5 o'clock P. M.

(27) That on the 9th day of November, 1877, said Elijah J. Curson and Anna M. Curson, his wife, by deed of general warranty, and for the consideration of the sum of $30, expressed to be in hand paid, granted, bargained, sold, and conveyed the said premises, the north-east quarter of the south-west quarter of section 24, in township 10, range 6 east, to Samuel W. Little; which deed of conveyance was, on the 26th day of November, 1877,* filed and recorded in the county clerk's office of Lancaster county, Neb.

"(28) On the 12th of August, 1875, Jane Y. Irwin and her husband executed a power of attorney to William T. Donavan to enable him to make conveyances to purchasers when sales were made by Scott, Boyd, and La Master, and to facilitate their operations under their contract of March 31, 1874.

"(29) That on the 25th day of October, 1879, the said Jane Y. Irwin and John Irwin, by W. T. Donavan, their attorney in fact, for the purported consideration, as expressed upon the face of said deed, of $1,000, made, executed, and delivered to one John P. Lantz their warranty deed conveying the north-east quarter of the south-west quarter of section 24, township 10, range 6 east, and all that portion of the west half of the said south-west quarter of section 24, township 10, range 6 east, lying north of the center line of R street, in the city of Lincoln, extended east through said lands; and also the following described parcels of land, situated in the south-west quarter of said south-west quarter of section 24, township 10, range 6, aforesaid: Commencing at the south-west corner of said section 24; thence running east 520 feet; thence north 460 feet; thence west 520 feet; thence south 460 feet, to the place of

460 feet east of the south-east corner of block No. 38, in the city of Lincoln, and 470 feet north of the south line of O street, in said city of Lincoln; thence running east 760 feet; thence north 400 feet; thence west 760 feet; thence south 400 feet, to the place of beginning; which said deed was recorded in the county clerk's office of Lancaster county, Neb., on the 25th day of October, 1879, at 4 o'clock and 25 minutes P. M.

'(30) That on the 25th day of October, 1879, said John P. Lantz and Hannah Lantz, his wife, by their deed of general warranty and for the consideration of $1,000, as expressed in said deed, paid by Samuel W. Little to said John P. Lantz, conveyed the property in the last finding above described to the said Samuel W. Little; which deed was, on the 25th day of October, 1879, at 4 o'clock and 30 minutes P. M., recorded in the county clerk's office of Lancaster county, Neb.

“(31) That neither Jane Y. Irwin nor John Irwin, nor any one for them, ever paid any taxes on any portion of the north half and the south-west quarter of the south-west quarter of section 24, township 10, range 6 east.

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(32) That Nelson C. Brock and Samuel W. Little and their respective grantees of any property in dispute herein have paid all taxes assessed against the said property since the entry thereof to the year 1884, under claim of title to said premises.

"(33) That on the 9th day of August, 1867, John Irwin and Jane Y. Irwin, by their deed of general warranty, conveyed to one William P. Young the north half of the south-west quarter and the southwest quarter of the south-west quarter of section 24, township 10, range 6 east, for the purported*consideration expressed on the face of the said deed of $490; which said deed was filed and recorded in the county clerk's office of Lancaster county, Neb., on the 10th day of August, 1867.

"(34) That on the 9th day of January, 1875, said Samuel W. Little, by a deed of quitclaim, pursuant to an arrangement made between Jane Y. Irwin and one George Smith and said Samuel W. Little, made, executed, and delivered, for the consideration of $100, a part of the south-west quarter of the south-west quarter of section 24, township 10, range 6 east; that said S. W. Little had consented to the entry of said George Smith upon the said parcel of land under the contract for the purchase of the same from Messrs. Scott, Boyd, and La Master.

(35) That in the year 1873 one Hickman entered upon the north-east quarter of the south west quarter of section 24, township 10, range 6 east, under a lease from Charles T. Boggs, and erected thereon stables for a milk ranch, and paid rent thereon for said premises at the rate of $12 per annum, and continued to occupy the said premises for such purposes, and for feeding and herding his stock thereon, for a period of about two years.

“(36) That from May 31, 1874, continuously down to the time of the commencement of this suit, June 14, 1884, Charles T. Boggs and Samuel W. Little, and his and their lessees and grantees, under claim of

of the north half of the south-west quarter of section 24, township 10, range 6 east, and that no other person occupied the same or entered thereon under claim of title to any part thereof.

(37) That on the 25th day of September, 1883. Samuel W. Little and Mary D. Little, by their deed of general warranty, and for the consideration of the sum of $10,500, sold and conveyed to the defendant, John C. Deputron, all that part of the northeast quarter of the south-west quarter of section 24, township 10, range 6 east, described as follows, and being the premises in dispute: Beginning at a point in the center of R street, in said city, 150 feet east of the east line of Seventeenth street; thence east, along the center of R street, 600 feet, to the center of Nineteenth street; thence north, at right angles with R street, 1,400 feet; thence west, parallel with R street, 750 feet, to the east line of Seventeenth street, extended north through R street; thence south, along said east line of Seventeenth street, 790 feet; thence east, parallel with R street, 94 feet; thence south, parallel with Seventeenth street, 247 feet; thence east, parallel with R street, 38 feet; thence south parallel with Seventeenth street, 163 fect; thence east, along Leighton's north line, 18 feet; thence south, along Leighton's line, 200 feet, to the place of beginning,-containing 22.15 acres of land; also part of the said northeast quarter of the south-west quarter of section 24, township 10, range 6 east, described as follows: For a starting point, begin at a point 400 feet east of Grand avenue and 200 feet north of R street, at C. M. Leighton's north-west corner; running. thence north 410 feet; thence east 94 feet; thence south 247 feet; thence east 38 feet; thence south 163 feet; thence west along Leighton's north line to the place of beginning. the north and south limits to be parallel with Grand avenue, and the east and west limits to be parallel with R street; which said deed was recorded on the 6th day of September, 1883, in the county clerk's office of Lancaster county, Neb.

"(38) That said Samuel W. Little delivered to the said John C. Deputron the mixed possession of the said premises at the date of the execution of the said deed, and that the said John C. Deputron thence and hitherto has held the mixed possession of the same.

(39) That the value of the said premises at the present time is the sum of forty thousand dollars.

“(40) We find that John C. Deputron, defendant, is a brother-in-law of S. W. Little, his grantor, and that there is no proof of any consideration paid by Deputron to Little for such conveyance.

"(41) That the value of the land claimed by John C. Deputron, defendant, being 22.15 acres, was worth (40,000) forty thousand dollars. January 29, 1875, S. W. Little was holding said premises as purchaser at tax-sale under certificate of purchase, May 26, 1874, for tax of 1872. If the court is of the opinion that on these facts the plaintiff is entitled to possession of the property in dispute, then we find for the plaintiff."