PEOPLE'S BANK OF BELLEVILLE, Piff. cipal sum and interest of said notes." This

Power of national bank to guaranty paper-es- count with the defendant was debited with

IN to Circuit District of Illinois. is not in the record, and me brief is but court

Mr. Charles W. Thomas, for plaintiff in error, cited: R. R. Co. v. Howard, 7 Wall., 392 (74 U. S., XIX., 117); Kelsey v. Bk., 69 Pa. St., The national Banking Act, 13 Stat. at L., 99, 426; Bredin v. Dubarry, 14 Serg. & R.,30; Gor-R. S., 999, sec. 5136, gives to every bank credon v. Preston, 1 Watts, 387. ated under it the right "To exercise by its

Brinton v. Hook, 3 Md. Ch., 477; 2 Sugd. | his petition, he was adjudged a bankrupt by the Pow. (marg.), 234; Tarback v. Marbury,2 Vern., 510; Peacock v. Monk, 1 Ves., 132; see, Burr. Assign., 2d ed. 179; Riggs v. Murray, 2 Johns. Ch., 565; S. C., 15 Johns., 571.

Mr. Martin Bijur and Bijur & Davie, for appellees.

Mr. Justice Field delivered the opinion of the court:

This is a suit to set aside two deeds executed by Charles H. Clifton, to his wife, and to compel a transfer of the property embraced in them to his assignee in bankruptcy. Clifton married in 1870, and was possessed at the time of a large estate. Previously to his marriage he had taken out three policies of insurance on his life, each for $10,000. Soon after his marriage he took out two additional policies on his life, each for the same amount as the previous ones. In October, 1872, by his deed-poll he conveyed to his wife, in consideration of the love and affection he bore her, to hold as her separate estate, free from his control, use and benefit, a small parcel of land in the City of Louisville, in the State of Kentucky; and by the same instrument, upon the like consideration, and to be held for the same separate use of his wife, he assigned to her the five policies of insurance on his life. The deed contained a clause reserving to himself the power to revoke the grant and assignment, in whole or in part, and to transfer the property to any uses he might appoint, and to such person or persons as he might designate, and to cause such uses to spring or shift as he might declare.

In April, 1873, by another deed poll, he conveyed to his wife, upon like consideration of love and affection, to hold as her separate estate, free from his control, use or benefit, two other parcels of land; one consisting of a lot in the City of Louisville, Kentucky, and the other his country place in the County of Jefferson, in that State, comprising thirty-eight acres. The instrument contained a reservation of a power of revocation and appointment to other uses similar to that of the first deed, the power of appointment, however, being somewhat fuller, in providing for its execution either by deed or writing, to take effect as a devise under the Statute of Wills in Kentucky.

District Court of Kentucky. The complainant was subsequently appointed assignee of his effects, and received an assignment of his property. The proved debts against him amounted to $13,000, and his estate in the hands of the assignee was of little value.

The assignee seeks to set aside the deeds upon various grounds, which, however, may be embraced in the following: 1. That they are void, because made directly to his wife, without the intervention of a trustee, and so passed no interest to her; 2. That, by the reservation to the grantor of a power of revocation and appointment to other uses, they were designed to hinder and defraud his future creditors, whilst he retained the control and enjoyment of the property; and, 3. That the power of revocation and appointment were assets which passed to the assignee in bankruptcy, and can be executed by him for the benefit of creditors.

The questions thus presented, though interesting, are not difficult of solution. The right of a husband to settle a portion of his property upon his wife, and thus provide against the vicissitudes of fortune, when this can be done without impairing existing claims of creditors, is indisputable. Its exercise is upheld by the courts, as tending not only to the future comfort and support of the wife, but also, through her, to the support and education of any children of the marriage. It arises, as said by Chief Justice Marshall in Sexton v. Wheaton, as a consequence of that absolute power which a man possesses over his own property, by which he can make any disposition of it which does not interfere with the existing rights of others. In that case the husband had purchased a house and lot within the District of Columbia, and taken the conveyance in the name of his wife, and afterwards made improvements upon the property. Subsequently he became involved in debt, and his creditors, having obtained a judgment against him, filed a bill to subject this property to its payment, contending that the conveyance to the wife was fraudulent and void as to them, and praying that if the conveyance were upheld the wife might be compelled to account for the value of the improvements. But the court held, after an extended consideration of the authorities, that, as the husband was at the time free from debt, the conveyance was to be deemed a voluntary settlement upon her; and as it was not made with any fraudulent intent, it was valid against subsequent creditors; and that the improvements upon the property stood upon the same footing as the conveyance, it appearing that they had been made before the debts were contracted. 8 Wheat., 229. That case does not differ in principle from the one before us. The husband in this, as in that one, was free from debt when he made the deeds, which were voluntary settlements upon his wife. It cannot make any subIn 1873, a general financial panic passed over stantial difference that in the case cited the the country; the values of all kinds of property money of the husband was expended in the purgreatly depreciated in the market, and land in chase of the property, and the conveyance was the country could scarcely be disposed of at taken in the name of the wife; and that in the any price. By the shrinkage in values and present case the property was owned at the time losses in the subsequent years of 1874 and 1875, by the husband, and was transferred directly by by his being surety for others, and by bad man-him to her. The transaction, in its essential featagement, his estate was wasted, and he became ures, would have been the same as now, if the hopelessly insolvent. In December 1875, upon husband had sold his lands and invested the

These deeds were properly acknowledged and recorded in the counties where the real property was situated. At the time of their execution, the grantor was not in any business, and did not intend engaging in any; was worth about $250,000, and owed only a few inconsiderable debts, which were soon afterwards paid. The deeds were made at the urgent solicitation of his wife, who perceived that his habits were those of an indiscreet young man, somewhat in clined to dissipation, and she was naturally de sirous of providing against a possible waste of his property.

proceeds in other property and taken a convey- | cept when made solely to guard against the exance in her name. The circuity of the proceeding travagance and imprudence of the settler, such would not have altered its character nor affected settlements have, in many instances, been anits validity. In all cases where a husband makes nulled on that ground. Several of them are a voluntary settlement of any portion of his cited in the very able and learned opinion of property for the benefit of others who stand in the District Judge who presided in the circuit such a relation to him as to create an obligation, court when this case was there heard. The law legal or moral, to provide for them, as in the in England, by which property can be kept in case of a wife or children or parents, the only the same families for many years, has, perhaps, question that can properly be asked is: does caused greater importance to be given in that such a disposition of the property deprive others country than in this to the insertion in deeds of of any existing claim to it? If it does not, no settlement of a power of revocation and appointone can complain if the transfer be made matter ment to other uses. Here the absence of the of public record, and not be designed as a scheme reservation is only a fact to be explained, and to defraud future creditors. And it cannot is to have more or less weight, according to the make any difference through what channels the circumstances of each case. In the case before property passes to the party to be benefited, or us, the husband does not appear to have had his to his or her trustee, whether it be by direct attention drawn to the reservation. He desired conveyance from the husband or through the to have the property settled upon his wife, and intervention of others. The technical reasons he intrusted the preparation of the deed to his of the common law arising from the unity of counsel. There was clearly no fraudulent inhusband and wife, which would prevent a di- tent on his part; no proof of any such intent rect conveyance of the property from him to was produced or stated to be in existence. The her for a valuable consideration, as upon a con- only fraud asserted in argument to exist, is contract or purchase, have long since ceased to structive fraud arising from the reservation in operate in the case of a voluntary transfer of question. But its presence in the deed, as is property as a settlement upon her. The inter- clear from all the authorities, does not tend to vention of trustees, in order that the property create an imputation upon his good faith and conveyed may be held as her separate estate be- honesty in the transaction. Huguenin v. Baseyond the control or interference of her husband, ley, 14 Ves., 273; Coutts v. Acworth, L. R., 8 though formerly held to be indispensable, is no Eq., 558; Wollaston v. Tribe, L. R., 9 Eq., 44; longer required. This has been established in Everitt v. Everitt, L. R, 10 Eq., 405: Hall v. courts of equity, says Story, for more than a Hall, L. R., 14 Eq., 365; Phillips v. Mullings, century, so That whenever real or personal L. R.. 7 Ch. App., 244; Hall v. Hall, 8 Ch. property is given or devised or settled upon a App., 430; Toker v. Toker, 3 De G., J. & S., married woman, either before or after marriage, 487. for her separate and exclusive use, without the intervention of trustees, the intention of the parties shall be effectuated in equity, and the wife's interest protected against the marital rights and claims of her husband, and of his creditors also." Eq. Jur., sec. 1380. And he adds to this observation, that "It will make no difference whether the separate estate be derived from her husband himself or a mere stranger; for, as to such separate estate, when obtained in either way, her husband will be treated as a mere trustee, and prohibited from disposing of it to her prejulice." There is nothing in the circumstances attending the execution of the deeds in this case which should prevent the full application of the doctrine stated for the protection of the wife's interest against the claim of the assignee for the benefit of the creditors of the husband. Lloyd v. Fulton, 91 U. S., 485 [XXIII., 365]. The powers of revocation and appointment to other uses reserved to the husband in the deeds in question, do not impair their validity or their efficiency in transferring the estate to the wife, to be held by her until such revocation or ap pointment be made. Indeed, such reservations are usual in family settlements, and are intended "To meet the ever-varying interests of family connections." Riggs v. Murray, 2 Johns. Ch., 565. So frequent is the necessity of a change in the uses of property thus settled, arising from the altered condition of the family, the addition or death of members, new occupations or positions in life, and a variety of other causes which will readily occur to everyone, that the absence of a power of revocation and of appointment 10 other uses in a deed of family settlement has otten been considered a badge of fraud and, ex-tificate of the register that he had paid for the same,

As is very justly observed in the opinion of the court below, the insertion of the power of revocation and new appointment, so far from proving that the grantor contemplated a fraud upon his future creditors, tends to show the contrary. Should he revoke the settlements, the property would revert to him and, of course, be liable for his debts; and should he exercise the power of appointment for the benefit of others, the estate appointed would be liable in equity for his debts.

The title to the land and policies passed by the deeds; a power only was reserved. That power is not an interest in the property which can be transferred to another, or sold on execution, or devised by will. The grantor could, indeed, exercise the power either by deed or will, but he could not vest the power in any other person to be thus executed. Nor is the power a chose in action. It did not, therefore, in our judgment, constitute assets of the bankrupt which passed to his assignee. Decree affirmed.

Cited-111 U. S., 118; 112 U. S., 353.

JAMES H. SIMMONS, Piff. in Err.

D.

AUGUST WAGNER.

(See S. C., 11 Otto, 260-263.)

Possession of public lands-void subsequent patent.

1. One in possession of public lands, under a cer

without a patent, can successfully defend against | purchaser of public lands, it is equivalent, so an action of ejectment to recover the possession by far as the government is concerned, to a patent the holder of a patent issued upon a subsequent purchase of the land as part of the public domain. actually issued. The execution and delivery of 2. When lands have once been sold by the United the patent after the right to it has become comStates and the purchase money paid,the lands sold plete, are the mere ministerial acts of the officers are no longer subject to entry, and a subsequent patent of the same lands to another person is void. charged with that duty. Barney v. Dolph, 97 [No. 1040.] U. S., 652 [XXIV., 1063]; Stark v. Starrs, 6 Wall., 402 [73 U. S., XVIII., 925].

Submitted Jan. 22, 1880. Decided Mar. 2, 1880.

N ERROR to the Circuit Court of the United States for the Southern District of Illinois. The case is sufficiently stated by the court. Messrs. A. L. Knapp and Clinton L. Conk ling, for plaintiff in error.

Mr. Chas. P. Wise, for defendant in error.

Mr. Chief Justice Waite delivered the opinion of the court:

This was an action of ejectment brought by Simmons, the plaintiff in error, against Wagner, the defendant, to recover the possession of the N. E. fr. 1-4 sec. 19. T. 4, N. R. 9 W. of the third principal meridian, Illinois. Simmons claimed title under a patent from the United States, dated April 25, 1871, granting him the lands as the assignee of one Mecke, who entered them at the Land-Office January 25, 1871. Wagner claimed through a purchase made under the old credit system, April 17, 1816, by one John Lewis, and a paper bearing date July 8, 1829, which purported to be a certificate of full pay ment of the purchase money in favor of William Russell.

A trial was had to the court without a jury, and resulted in a judgment for the defendant. There was no special finding of facts, but the evidence is set out in full in a bill of exceptions, which concludes as follows: The court found the issue joined for the defendant on the ground that the premises in controversy, on the issue of the final certificate to William Russell, ceased to be a part of the public domain, and were not thereafter subject to entry by individuals or sale by the United States; and to which finding the plaintiff then and there excepted."

This leads us to the inquiry, whether Lewis and his assigns had, under the facts as found, acquired a vested right in the lands when the quas made by means of which Simmons made his entry in 1816, it was provided that purgot his patent. By the statute under which Lewis chases of public lands might be made on credit and that when payment of the purchase money was completed the register of the Land-Office should give, "A certificate of the same to the party and, on producing to the Secretary of the Treasury the same final certificate, the President of the United States is hereby authorized to grant a patent of the lands to the said purchaser, his heirs or assigns." 2 Stat. at L., 76, sec. 7. It follows, then, that if the final certificate in this case was genuine and valid, as, in effect, it has been found to be, Russell, the assignee of Lewis, had the legal right to demand from the President a patent for the lands described. This, certainly, was a complete segregation of the lands in controversy at that date. The sale to Mecke and patent thereon to Simmons, more than thirty years afterwards, were null and void and conveyed no title as against Russell and his assigns. It is of no consequence whether the assignees of Russell could get a patent in their own names or not. After the certificate issued, the lands were no longer in law a part of the public domain, and the authority of the officers of the government to grant them, otherwise than to him or some person holding his rights, was gone. The question is not whether Wagner, if he was out of possession, could recover in ejectment upon the certificate, but whether Simmons can recover as against him. He is in a situation to avail himself of the weakness of the title of his adversary, and need not assert his own. We think it clear, therefore, that the court below was right in giving judgment for defendant on the facts found.

To justify this conclusion, the court must have found as a fact that the final certificate in question was a genuine document, and issued by the proper officer in the regular course of his Several exceptions were taken, during the official duty. This finding is conclusive on us. progress of the trial, to rulings on the admissi for we have many times decided that a bill of bility of evidence. While errors have been exceptions cannot be used to bring up the evi- formally assigned on all these exceptions, only dence for a review of the findings of fact. The a few have been insisted on in the argument. Abbotsford [ante, 168], and the cases there cited. Some have been already disposed of, as the obWe have to consider, then, upon this branch of jections were made entirely upon the assumpthe case, only the question whether one in postion that nothing short of a superior legal title session under such a certificate, without a patent, can successfully defend against an action of ejectment to recover the possession by the holder of a patent issued upon a subsequent purchase of the land as part of the public domain.

It is well settled that when lands have once been sold by the United States and the purchase money paid, the lands sold are segregated from the public domain and are no longer subject to entry. A subsequent sale and grant of the same lands to another person would be absolutely null and void so long as the first sale continued in force. Wirth v. Branson [ante, 86]; Frisbie v. Whitney, 9 Wall., 187 [76 U. S., XIX.,668]; Lytle v. Arkansas, 9 How., 314. Where the right to a patent has once become vested in a

could defeat the patent which Simmons held. There was some evidence to prove the signatures of the register to the final certificate. That was one of the facts in the case, and the general finding in favor of the validity of the certificate is equivalent to a finding that its due execution had been proved. The question here is, not whether the deeds from Lewis to Russell, without the clerk's certificate as to the official character of the officer before whom the acknowledgment was made, would be sufficient to justify the Register of the Land Office in issuing his final certificate; but whether, in this action, they were admissible without such certificate to prove the fact that an assignment had been actually made. For aught we know, they were