promulgated; and there was no error in their admission as evidence, though there was no necessity for their formal introduction, they being matters of which the courts of the United States take judicial notice. This was expressly decided by the Supreme Court in passing on the necessity of the introduction of certain rules and regulations of the interior department in Caha v. United States, 152 U. S. 212, 14 Sup. Ct. 513, 38 L. Ed. 415; the court citing the following decisions as bearing upon the general question: United States v. Teschmaker, 63 U. S. 392, 405, 16 L. Ed. 353; Romer v. United States, 68 U. S. 721, 17 L. Ed. 627; Armstrong v. United States, 80 U. S. 154, 20 L. Ed. 614; Jones v. United States, 137 U. S. 202, 11 Sup. Ct. 80, 34 L. Ed. 691; Knight v. United States Ass'n, 142 U. S. 161, 169, 12 Sup. Ct. 258, 35 L. Ed. 974; Jenkins v. Collard, 145 U. S. 546, 12 ̧ Sup. Ct. 868, 36 L. Ed. 812.

2. The several exceptions to the action of the lower court in refusing to give to the jury instructions asked for by the plaintiffs in error, together with their assignments of error covering such exceptions, have been fully and carefully considered by the court; and our conclusion is that said instructions, which in many instances raise but the same questions covered by the exceptions taken to the rejection and admission of evidence, and in others matters not justified by the evidence, were one and all properly refused; that the court's charge, to which the plaintiffs in error did not except, fully and fairly submitted the case to the jury; and that said plaintiffs in error have no just cause of complaint, either because of the instructions refused or the charge given by the court.

3. The plaintiffs in error excepted to the action of the lower court in overruling their motion made for a new trial. This ruling is not the subject of review by this court. Blitz v. United States, 153 U. S. 308, 312, 14 Sup. Ct. 924, 38 L. Ed. 725; Wheeler v. United States, 159 U. S. 523, 16 Sup. Ct. 93, 40 L. Ed. 244; Addington v. United States, 165 U. S. 184, 17 Sup. Ct. 288, 41 L. Ed. 679.

4. The plaintiffs in error also excepted to the action of the lower court in entering judgment against them upon the verdict of the jury. This is a writ of error, which presents for consideration errors of law properly presented by a bill of exceptions or arising upon the record. Bucklin v. United States, 159 U. S. 680, 682, 16 Sup. Ct. 182, 40 L. Ed. 304, 305; Etna Life Ins. Co. v. Ward, 140 U. S. 76, 91, 11 Sup. Ct. 720, 35 L. Ed. 371; Foster's Fed. Pr. § 496. No motion or request was made that the jury be instructed to find for the defendants, or either of them, which motion would, if made, overruled, and properly excepted to, have left open to this court to consider whether there was any evidence to sustain the verdict, though not to pass upon its weight or sufficiency. Wiborg v. United States, 163 U. S. 632, 658, 16 Sup. Ct. 1127, 1197, 41 L. Ed. 289; Humes v. United States, 170 U. S. 212, 18 Sup. Ct. 602, 42 L. Ed. 1011; Clyatt v. United States, 197 U. S. 207, 221, 25 Sup. Ct. 429, 49 L. Ed. 726. Being of the opinion, after maturely considering all of the assignments of error, as well those particularly passed upon as those not in terms enumerated and referred to herein, that no error

of law has been committed of which the plaintiffs in error can complain, and that the facts, of which the jury was the judge, fully warranted their finding, the exception taken to the action of the lower court in entering judgment is overruled.

The action of the lower court, being without error, will be, and is hereby, in all respects affirmed.

REEVE V. NORTH CAROLINA LAND & TIMBER CO. et al.

(Circuit Court of Appeals, Sixth Circuit. December 5, 1905.)

No. 1,387.

1. PUBLIC LANDS-GRANT OF STATE LANDS-VALIDITY UNDER TENNESSEE STAT

UTE.

Under the statutes of Tennessee governing grants of state lands, as construed by its Supreme Court, a valid entry is not essential to a valid grant, and the older of two conflicting grants, each based on a void entry, passes the state's title.

2. EXECUTION-VALIDITY OF SALE-PRESUMPTION OF REGULARITY.

That one assumed to be an officer, and made a levy and return under an execution directed only to a lawful officer, is sufficient, on collateral attack, to raise a presumption that he was such officer, although the fact is not stated in his return.

8. SAME.

On a collateral attack upon an execution sale, made 26 years after the execution of a trust deed on the property by the owner, the presumption is that the debt secured by the deed was satisfied and that the sale passed a good title.

4. EXECUTORS-POWERS-CONVEYANCE OF PROPERTY.

An executor, having power under the will to sell and convey any part of the testator's property, had authority to direct the making of a sheriff's deed, to which the testator was entitled, to a third party, who had acquired the equitable title, notwithstanding the fact that the remainder of the estate had been closed, where he had not resigned or been discharged.

5. EXECUTION-VALIDITY OF DEED-POWER OF SUCCEEDING SHERIFF.

Under Shannon's Code Tenn. § 4783, which provides that a sheriff who makes a sale of lands may make a deed to the purchaser, or any one succeeding to his rights, "at any time, either within or after the expiration of the two years allowed for redemption," and section 4785, which authorizes a sheriff to execute deeds for lands scld by a former sheriff, without any limitation as to time, the mere lapse of time does not affect the validity of such a deed made by a subsequent sheriff.

6. EQUITY-PROOF OF TITLE-RIGHT TO BRING IN CURATIVE DEED BY SUPPLEMENTAL BILL.

Where plaintiff had an inchoate title to land in suit, but which was Imperfect because of the invalidity of a sheriff's deed, it was not error to permit the bringing forward by supplemental bill of a curative deed executed pending the suit.

Appeal from the Circuit Court of the United States for the Eastern District of Tennessee.

This cause came on to be heard upon April 13, 1905. An opinion reversing the decree of the Circuit Court upon the ground of the invalidity of the complainant's grant was filed May 2, 1905. The ground upon which we proceeded,

as well as the facts of the case, is fully set forth in our former opinion, which was as follows:

"Bill to restrain trespass a tract of wild mountain land, valuable only for its timber, and to cancel the grant and deeds under which the defendants claim in so far as same conflict with the grant and deeds under which the complainant asserts title to the land upon which trespasses are being committed. There was a decree for the complainant, and the defendant, M. P. Reeve, has appealed.

"LURTON, Circuit Judge, delivered the opinion of the court.

"The complainant deraigns title to the land in dispute from a grant to John Burgner, for 5,000 acres, dated November 29, 1841. The defendant deraigned title from a grant to Richard West, for 1,900 acres, dated October 3, 1843. Both grants are from the state of Tennessee. Neither party has had any such possession as to perfect a title under statute of limitations. The West grant laps upon the older Burgner grant. To what extent does not appear. The question made by the issues and decided by the court below was the single question of superiority of title. The Burgner grant is the oldest. and, in the absence of both the Burgner and West entries, is the superior title if a valid grant. The contention is that the grant to Burgner is void because issued without any authority of law.

"That grant, upon its face, recites that it issued upon an entry dated November 29, 1838. By an act passed November 28, 1839, it was provided that entries theretofore made might be surveyed at any time prior to September 1. 1841, and 'the further time of two years, from and after the passage of this act, to have such surveys granted;' and that if such surveys shall not be made and grants obtained thereon, as provided in this act, such entries and surveys, as the case may be, shall be null and void as against subsequent entries.' The time within which a grant might issue under this extension act expired November 28, 1841. Complainant's grant issued November 29, 1841. one day after the expiration of the law. The West entry was, at the date of this hiatus, an existing entry junior to that of Burgner, and upon it the West grant issued subsequent to this hiatus and junior to the Burgner grant. The fact that the Burgner grant issued upon an entry which, by the express terms of the act of 1839, was null and void, is apparent from the date of the entry recited in the grant itself. November 30, 1841, another extension act was passed, which extended the time within which all entries theretofore made might be carried into grants. But the Burgner grant can obtain no benefit from this act because it issued one day after the expiration of the act of 1839, and one day before the act of 1841 was passed.

"We need not stop to consider what would have been the effect if Burgner's grant had not issued until after the later extension act of 1841 had passed. That it would have resuscitated his entry and furnished the foundation for a grant, in the absence of any intervening rights in favor of a younger enterer, may be conceded. Blevins v. Crew, 3 Sneed, 154; Williamson v. Throop, 11 Humph. 265; Tipton v. Sanders, 2 Head, 690; Henegar v. Matthews, 88 Tenn. 132, 14 S. W. 554; Sheafer v. Mitchell, 109 Tenn. 181, 71 S. W. 86. The plaintiff's grant can obtain no support from subsequent extension acts, but must stand or fall upon the question of the power of the state's officials to issue a grant upon an entry which, under the law, was null and void. As this is a collateral attack, it will be of no avail unless the Burgner grant is void and not merely voidable by a direct proceeding. Fowler v. Nixon, 7 Heisk. 725; Curle v. Barrel, 2 Sneed, 66. A grant of the vacant land of Tennessee must have its origin in a valid entry, and a grant which has no other basis than a void entry is void, wherever impeached, if the facts are apparent upon the face of the grant, or otherwise appear by record evidence of like dignity. Jackson v. Honeycut, 1 Overt. (Tenn.) 31; Cobb's Heirs v. Conway's Heirs, 3 Hayw. (Tenn.) 21; McLemore v. Wright, 2 Yerg. 326 Polk v Wendell, 5 Wheat. 293, 5 L. Ed. 92; Crutchfield v. Hammock, 4 Humph. 203; Roach v. Boyd, 1 Sneed, 134; Woodfolk's Lessee v. Nall, 2 Sneed, 674.

"In Crutchfield v. Hammock, cited above, vacant lands lying in one surveyor district were entered in another of which they constituted no part. A

grant was nevertheless issued. The trial court instructed the jury that if the lands included in the plaintiff's grant did not constitute a part of the district in which they were entered, that the entry and grant were void. In the Supreme Court it was contended that inasmuch as the surveyor of the district of entry had actually included the lands in question in his district and placed it down upon the plans thereof, that the plaintiff had a right to enter it in that office, and that the state having issued a grant therefor, all persons were precluded from going behind the grant. To this the court replied: "This argument cannot be sustained. Ever since the case of Polk's Lessee v. Wendell and others, decided by the Supreme Court of the United States [5 L. Ed. 92] and [Polk's Lessee v. Wendell], reported in 2 Tenn. 433 [Fed. Cas. No. 11,251], it has been held that entries and grants are void, and may be resisted in a trial in ejectments whenever there is want of property in the grantor, or want of power in the officers appointed by the Governor to receive the entries or issue the grants. The principles of this decision have been recognized by the Supreme Court of this state in the cases of Fentress' Lesser v. Western, decided at Charlotte in 1820, not reported, and in the case of McLemore's Lessee v. Wright, decided at Reynoldsburgh in 1829, and reported in 2 Yerg. 326. In the case now under consideration, the lands in dispute, constituting a part of the Hiawassee district, were not included by the lines of the Ocoee district. The surveyor, then, in extending the lines so as to embrace it, was acting out of the sphere of the authority invested in him. and his act was void. Being void, the act cannot be construed to have made these lands a part of the Ocoee district. Not being such, the entry taker had no power to receive entries therefor, as his power was limited to the reception of entries of land in the Ocoee district; he having no power to issue grants except upon valid entries. The lessor of the plaintiff, then, had no title to the premises in dispute, and the judgment of the circuit court must be affirmed.' This case was followed in Roach v. Boyd, cited above, where it was held that an entry made in an entry office which had been closed was a nullity and that the grant founded upon it was void.'

"Crutchfield v. Hammock and Roach v. Boyd were affirmed and applied in Woodfolk's Lessee v. Nall, cited above. Woodfolk's Lessee v. Nall was an action of ejectment. Each party claimed the land in dispute under conflicting grants. The plaintiff's entry and grant were junior to the entry and grant of the defendant. But plaintiff claimed that, although his entry and grant were junior, they constituted the only valid entry and grant, and that defendant's grant was void. This claim was rested upon the fact that at the date of defendant's entry there was an interval of a short time during which there was no authority of law for making an entry within that portion of the state where this land was, and that the law closing the entry office had required all claims to be presented and entries made thereon on or by a date named, or be 'forever thereafter barred.' The office was again opened. But during the interval defendant's entry was made and spread upon the entry book, and so remained after the office was again opened. Defendant's grant issued after the reopening of the office. The court, after holding that the entry did not become a good entry by remaining upon the entry taker's book, having been originally placed there in violation of official duty, and that 'nothing short of an express legislative enactment could have had the effect of legalizing the pretended entry, or making it operative for any purpose,' said: 'It is clear, therefore, that the entry in question is utterly void; and of necessity the grant founded upon it must be held void likewise. The case before us is free from all the supposed difficulties that have embarrassed the question in regard to the jurisdiction of a court of law to declare a grant void. It clearly falls within a principle long recognized in our jurisprudence as an exception to the general rule upon this subject. The case of an entry attempted to be made without or against the authority of positive law is obviously distinguishable from those cases where the entries were authorized by law, but errors or inequalities intervene in the course of proceeding. See Crutchfield v. Hammock, 4 Humph. 203; Roach v. Boyd, 1 Sneed, 135.'

"The cases of Craig's Lessee v. Vance, 1 Overt. 183; Wood v. Elledge, 11 Heisk, 611; Webb v. Haley, 7 Baxt. 602, 603, and Berry v. Wagner, 13 Lea,

594, 598, have been cited as holding that an entry is not essential to the issuance or validity of grant. Craig's Lessee v. Vance seems to have been an obiter by a single judge at nisi prius. But if Judge Overton had in mind grants upon military warrants prior to the act of April 12, 1784, he was right, for it was not until the act last mentioned that there was any provision of law requiring an entry book in respect of locations under military warrants. It was, before that act, 'agreeable to law' that the surveyor should indorse upon the back of the warrant the location made by the holder, and for a grant to issue upon the warrant and location so made. After the act of April, 1784, entry takers were appointed and entry books provided, and all entries required to be made in the proper district. The history of the matter may be read in Lester v. Craig's Trustee, Cooke (Tenn.) 482, 484. Wood v. Elledge presented only the question of whether the plaintiff's younger grant could be carried back to the date of his entry, which was older than that of the defendant. Both entries were in evidence. The oral evidence tended to show that the objects called for in plaintiff's entry could not be located, while the localities in defendant's entry were notorious. In this state of the case, plaintiff's grant could not by relation go back to such an entry, and his title was therefore only of the date of his grant. The case is one under the well-settled Tennessee doctrine that a grant based upon a special entry relates to the date of its entry, and will override an older grant upon a younger entry. Anderson v. Cannon, Cooke (Tenn.) 27, 31; Parrish v. Cummins, 11 Humph. 297: Bleidorn v. Pilot Mountain Co., 89 Tenn. 169, 204, 15 S. W. 737. Webb v. Haley has no bearing whatever upon the question of the necessity of a valid entry.

"The book of an entry taker is a record, and copies taken from it constitute record evidence. The entry taker must furnish the surveyor with a copy of his record on which he makes his survey. This entry and the survey are furnished to the register or Secretary of State and constitute the authority for issuing a grant. Sampson v. Bone, 4 Heisk. 702, 704. Such an entry constitutes an incipient or equitable right to the land, and constitutes the state's voluntary agreement to grant the land if the enterer shall apply for a grant within the time required by law. If an entry of vacant lands made in the wrong surveyor's district, or in a closed entry taker's office, or of land not included within any surveyor's district, is a void entry and a grant based thereon void, it is because a lawful entry is the only authority of law for the issuance of a grant. We can but conclude, from the cases we have cited above, that the state officials issuing the Burgner grant did so without any authority of law. It was not a case of the exercise of judgment or discretion upon any question of law or fact submitted to their decision by the law. It was not a case of vague, indefinite, or voidable entry, but a plain case of an entry which had expired, an entry which by plain terms of the law was null and void. It is not distinguishable in principle from McLemore v. Wright, 2 Yerg. 326; Polk v. Wendell, 5 Wheat. 293, 5 L. Ed. 92; Crutchfield v. Hammock, 4 Humph. 203; Roach v. Boyd, 1 Sneed, 134 and Woodfolk's Lessee v. Nall, 2 Sneed, 674.

"The authority of the Secretary of State and Governor to sign and deliver the state's grant is dependent upon the enterer's application within the time limited by law for the issuance of a grant upon the entry. A grant after an entry has expired is an act beyond the scope of the power conferred by law and an absolute nullity. Such an entry may be revived by an act of legislation which does not affect the vested right of another. But in the case under consideration there had been no resuscitation of the nullified entry of Burgner when he applied for and obtained his grant. The fact that an act was subsequently passed extending the time within which he might obtain a grant is of no consequence, aside from the junior entry of West, because he did not obtain such grant during the currency of the extended law. The case of Woodfolk v. Nall, 2 Sneed, 674, 675, presented much such a question. There an entry made and recorded in an entry office which had been temporarily closed by law was held not to be validated from date of reopening of the office.