Statement of Facts. know from that is that he must have died before the institution of the suit, which was begun by his executors on September 25, 1885, but whether before or after March 1, 1885, we cannot infer, that being the date up to which interest was paid. If he died after that date, then the condition on which hist promise could be enforced against his executors had not been fulfilled. On this point, therefore, the defence failed. Judgment affirmed. Harmon v. Adams. Error to the Circuit Court of the United States for the Northern District of Illinois. Mr. Justice Matthews: The record in this case involves no other questions than those just decided in the foregoing case. The judgment is therefore Affirmed. DURAND v. MARTIN. ERROR TO THE SUPREME COURT OF CALIFORNIA. Submitted January 13, 1887.- Decided February 7, 1887. Lands listed to California as indemnity school lands, and patented by the State, are not open to preëmptiou settlement while in possession of the patentee. The act of March 1, 1877, 19 Stat. 267, "relating to indemnity school lands in the State of California," was a full and complete ratification by Congress, according to its terms, of the lists of indemnity school selections which had been before that time certified to the State of California, by the United States as indemnity school selections, no matter how defective or insufficient such certificates might originally have been, if the lands included in the lists were not any of those mentioned in § 4, and if they had not been taken up in good faith by a homestead or preëmption settler prior to the date of the certificate. THIS was an action to recover the possession of land in California, brought, and prosecuted to final judgment, in the courts of that state. The facts which make the Federal case for this court are stated in the opinion of the court. Opinion of the Court. Mr. Michael Mullany for plaintiffs in error. Mr. E. D. Wheeler for defendant in error. MR. CHIEF JUSTICE WAITE delivered the opinion of the court. This was a suit brought by Samuel B. Martin, the defendant in error, on the 20th of March, 1878, in the District Court of Contra Costa County, California, against Martin Durand and Anthony Thompson, the plaintiffs in error, to recover the possession of the E. sec. 13, T. 2 S., R. 1 E., Mount Diablo meridian. The facts found at the trial were in brief these: The land in dispute was agricultural land, and it was located by the locating agent of California on the 20th of October, 1862, at the request and in the name of Martin, in lieu of the E. sec. 16, T. 22 S., R. 6 E., of the same meridian. In making this selection, which was for idemnity school lands, the agent acted under color of the authority of § 7 of the act of March 3, 1853, c. 145, 10 Stat. 244, 247. This township twenty-two has never been surveyed by the United States, and the east half of section 16 is within the boundaries of a Mexican grant known as San Miguelito, confirmed to one Gonzales, the final survey of which was approved in 1859, and the lands afterwards patented to Gonzales or his assigns. On the 2d of March, 1863, the State of California issued a certificate of purchase to Martin for the land in dispute. On the 8th of September, 1870, it was listed to the state by the United States government, and, on the 3d of February, 1871, it was patented by the state to Martin under his certificate of purchase. The plat of the United States survey of township two, embracing the land, was filed in the United States land office in San Francisco on the 10th of June, 1865. On the 10th of April, 1839, the Mexican government granted to José Noriega and Robert Livermore, a tract of land known as Las Pocitas. The claim under this grant was confirmed on the 14th of February, 1854, by the land commissioners appointed under the act of March 3, 1851, c. 41, 9 Stat. 631, Opinion of the Court. and afterwards, on appeal, by this court, at December Term, 1860. After the decision of the land commissioners, a deputy surveyor, under instructions from the surveyor general of the United States for California, made a survey which purported to show the boundaries of the claim confirmed, and this survey was approved by the surveyor general May 7, 1854, but nothing further appears to have been done under it. In March, 1869, after the decree of confirmation by this court, the surveyor general caused the claim so confirmed to be again. surveyed and designated, and this survey was approved by him May 11, 1870, by the Commissioner of the United States General Land Office, March 1, 1871, and by the Secretary of the Interior, June 6, 1871. On the 20th of August, 1872, the United States issued a patent to Noriega and Livermore, their heirs and assigns, for the land so surveyed and designated in March, 1869. The land now in dispute was embraced within the exterior boundaries of the grant adjudged to be valid by the decree of the board of land commissioners affirmed by this court, but was not embraced within the surveys of 1854 or 1869, or in the patent issued to Noriega and Livermore. On the 16th of May, 1876, Thompson entered into the possession of the south half and Durand into the possession of the north half of the half-section in dispute. When these entries were made Martin was in possession of the land, though it was not then, nor had it ever been, fully enclosed or fenced. Within a few days afterwards Martin notified Thompson that he claimed to own the land under a patent from the State of California, which he exhibited; but, notwithstanding this, both Thompson and Durand maintained actual and exclusive possession, and kept Martin out until this suit was brought. Each of the parties entered for the purpose of availing himself of the preemption laws of the United States, having the necessary personal qualifications therefor. They each made application at the proper land office to perfect their respective claims, but the officers refused to permit them to do so. Upon this state of facts the Supreme Court of California affirmed a judgment of the District Court in favor of Martin, and to rethat decision this writ of error was brought. verse Opinion of the Court. Upon the facts as found we have no hesitation in deciding that the title of Martin, under his patent from the State of California, was perfect when his suit was brought, and that the judgment in his favor was right. The land in dispute had not only been selected by the state as indemnity school lands, and certified or listed as such by the proper officer of the United States, when Durand and Thompson made their respective entries as preëmption settlers, but it had been patented to Martin and he was in actual possession under color of that title. These are facts specially found by the court below, and the evidence on which this finding was made cannot be considcred here. Such being the case, the land was not open to preëmption settlement as against Martin when Durand and Thompson entered on his possession. Atherton v. Fowler, 96 U. S. 513; Trenouth v. San Francisco, 100 U. S. 251, 256; Mower v. Fletcher, 116 U. S. 381. If the title of Martin was ever at all defective, it was because at the time of the selection the land was within the boundaries of a claim under a Mexican grant, and therefore not then, in a strict legal sense, public land; but the United States have never objected to the title of the state because of this. On the contrary, after a survey had been made and approved by the surveyor general of the United States for California, which excluded the land from the grant, the proper officer of the United States listed it to the state under the act of August 3, 1854, c. 201, 10 Stat. 346, now § 2449 of the Revised Statutes, as indemnity school lands which had been properly selected, and from that day to this, so far as the record shows, the United States have never disputed the title of the state or its grantee. This survey was made in 1869, the claim having been finally confirmed in 1860. As the survey was not made until more than ten months after the act of July 25, 1866, c. 219, 14 Stat. 218, "to quiet land titles in California" had become. operative, its approval by the surveyor general had the effect, under the ruling of this court in Frasher v. O'Connor, 115 U. S. 102, of opening all lands within the exterior boundaries. of the grant, but outside of those fixed by the survey, to selection or preëmption entry as public lands, subject only to a VOL. CXX-24 Opinion of the Court. defeat of title, if in the end the survey as made s uld be set aside and the boundaries of the grant finally extended so as to include the selection or the entry. In the present case, however, the survey was accepted by the owners of the grant and a patent taken for the land within its boundaries, in full satisfaction of their original claim as confirmed by the commissioners and by this court. This was in 1872, and from that time certainly there has been no one, according to this record, who could dispute the title of the state or its grantee, except the United States. The owners of the Mexican grant abandoned their claim to the excluded land when they accepted their patent, and no one could enter upon the land by the laws of the United States as a preëmption settler, because Martin was in the actual possession under his claim of title. It is not contended that this title of Martin is even technically defective, unless it be for the reason that the selection was actually made when the land was not in law public land. But when the Commissioner of the General Land Office in 1870. certified this with other land to the state as land which had been selected as indemnity lands, it was an existing selection at that date, and there were no intervening rights to prevent its operation as such. By accepting the certificate, the state treated the selection as a valid selection existing at the time of the certificate, and the list thus certified operated under the act of 1854 as a transfer of the title from the United States to the state which immediately inured to the benefit of Martin under his patent. It is true that the certificate of the Commissioner to a list of lands which were not open to selection at the time they were selected, nor at the time they were certified, would not pass title out of the United States because he had no authority in law to make such a certificate. But the case is quite different when the state presents for certification as an existing selection one that was bad when made but good when presented. Under such circumstances, if the rights of no third parties have intervened, there is nothing to prevent the Commissioner from treating the selection as if made on the date of its presentation, and certifying accordingly. His certificate is of selections claimed by the state at the time of its |