cost more to repair it, polish it and put it in or- | tled doctrine that nothing short of a total exder for use, than to buy a new machine.

tinction, either physical or in value of memorandum articles at an intermediate port, would entitle the insured to term the case a total loss, where the voyage is capable of being performed. And perhaps even as to an extinction in value, where the commodity specifically remains, it may yet be deemed not quite settled whether, under like circumstances, it would authorize an abandonment for a total loss."

In the case of Morean v. Ins. Co., 1 Wheat., 219, more than half of a cargo of corn was thrown overboard and lost. The remainder was saved in a damaged condition and sold at about one fourth the market value of sound corn. This was held not to be a total loss, because part of the corn was saved, and though damaged was of some value. It was, therefore, only a partial loss.

Upon the testimony offered by plaintiff, the counsel for defendant moved the court to instruct the jury that the action could not be sustained because it showed that there was not a total loss. The court declined to do this, and the request was renewed at the conclusion of defendant's evidence and again declined. Several prayers for instruction were then presented by the defendant, based upon the leading proposition that if any of the pieces of the machinery insured was recovered and tendered in specie to the assured, there was no total loss. These were refused and exceptions taken to all these refus ale, on which error is assigned here. An exception was also taken as to the charge of the court; laying down the law by which the jury were to decide the question of total loss submitted to them. That charge was in the following words: The next case is that of Hugg v. Ins. Co., 7 "The meaning of the term 'free from particular How., 595. The question there arose on an inaverage' used in the policy was, that the defend surance of jerked beef of four hundred tons, ants should be liable only for a total loss of the part of which was thrown into the sea and part subject insured; that the subject insured was of the remainder so seriously damaged that the not machines but machinery, by which is gen- authorities of the City of Nassau refused to alerally understood the several parts or portions low more than 150 of it to be landed. This was of machines adapted and fitted to be put together wet and heated, and not in a condition for reso as to constitute a machine, in this case a su- shipment. In answer to a question on this subgar packing machine, and applying the rule of ject, certified to this court by the judges of the law as to what constitutes a total loss to this circuit court, it was replied, that if the jury particular subject insured, the jury will find found that the jerked beef was a perishable arwhether any piece or portion of the machinery ticle within the meaning of the policy, the deinsured arrived at its destination in a perfect fendant is not liable as for a total loss of the condition, so that it could have been used with freight, unless it appears that there was a deits corresponding or connecting pieces, had they struction in specie of the entire cargo so that it also arrived in good condition; in that case the had lost its original character at Nassau, or that plaintiffs could not recover, as the loss would not a total destruction would have been inevitable be total; but that if every piece of the machin- from the damage received if it had been reshipped ery was so damaged by the perils insured against before it could have arrived at Matanzas, the as to be entirely unfit for use on being supplied port of destination. And though there are some with its corresponding or connecting pieces, very strong expressions of the judge who dethen there was a total loss of the subject in livered the opinion, as to the necessity of the tosured as machinery, although the material it-tal destruction of the thing insured to establish self might still exist; and if they so found, they would find a verdict for the plaintiff for the sum named in the policy, with interest from the 10th day of September, 1868."

The question here presented in this case for consideration has been often in the courts, and the discriminations between what is total loss and what is not, are frequently very nice and delicate. The authorities are by no means uniform or consistent with each other, when, as in the present case, the line of distinction is very narrow. Several cases bearing upon the one before us have been decided in this court, and perhaps a short review of them may aid us here better than a more extended examination of the numerous other authorities on the subject.

a total loss in memorandum articles, no doubt the language here certified is the true expression of the court's opinion. And it will be observed that in this case, as in the case in 8 Cranch, the destruction spoken of is destruction as to species, and not mere physical extinction. Indeed, philosophically speaking, there can be no such thing as absolute extinction. That of which the thing insured was composed must remain in its parts, though destroyed as to its specific identity. In the case of the jerked beef, for instance, it might remain as a viscid mass of putrid flesh, but it would no longer be either beef or jerked beef. And when the case went back for trial in the circuit, the charge of Ch. J., Taney, to the jury places this point in a very clear light. He says there was not a total loss at Nassau, because a part of the jerked beef remained in specie, and had not been destroyed by the disaster. And if there was reasonable ground for believing that a portion of this beef could, by repairing the vessel, have been transported to Matanzas, although it might arrive there in a damaged condition, but yet retaining the character of jerked beef, there was no total loss. Hugg v. Ins. Co., Taney, Dec., 168. The jury found there was a total loss. The case of Judah v. Randal, 2 Cai. Cas., 324, where a In the case of Marcardier v. Ins. Co., 8 carriage was insured and all was lost but the Cranch, 47, it is said that "it seems to be the set-wheels, is another illustration of the principle.

In the case of Biays v. Ins. Co., 7 Cranch, 415, the plaintiff was insured upon hides, the whole number of which was 14,565. Of these, 789 were totally lost by the sinking of a lighter, and 2,491 of those sunk were fished up in a damaged condition and sold. The hides were memorandum articles, and this court held that inasmuch as less than 800 hides insured as part of a much larger number of the same kind was lost, it could not be a total loss, and overruled the argument that it was a total loss as to the 789 hides.

Y., 204, the whole doctrine is ably reviewed IN ERROR to the Supreme Court of the State

with a very full reference to previous decisions, The plaintiff in error brought this suit in and it is there shown that there is far from un-equity, and prayed that the legal title of the deanimity in the language in which the rule is expressed; and the extreme doctrine of an absolute extinction or destruction of the thing insured is not the true doctrine, or, at least, is not applicable in all cases as a criterion of total loss.

1. The issue of a patent upon the award of the register and receiver, sanctioned by the Commissioner of the General Land Office, was final and conclusive as between the United States and the several claimants. It passed the legal title to the 2. The remedy of the defeated party, if he has any thereafter, was by a proceeding in the courts against the patentee or those claiming under him. 3. Where one claimed the right to enter the whole of a tract, and upon that claim the parties went to a bearing; and he might have asked to make his entry jointly with another, but did not, he is con- The proviso of section 1 of the Act of Concluded by his election made at the time. 4. An entry could not be made under the pre-gress of August 4, A. D. 1854, 10 Stat. at L., emption laws by one in trust for another, and if it 576, Brightly, Dig., 477, sec. 108, extending the

relates only to the enforcement of a contract between two citizens of the same State, and its validity and construction and the measure of relief, depends upon state law.

In Minnesota, it seems that such agreements have been held void, so far as they relate to the land.

St. Peter Co. v. Bunker, 5 Minn., 192; Evans v. Folsom, 5 Minn., 422; Bruggerman v. Hoerr, 7 Minn., 337; McCue v. Smith, 9 Minn., 252. But in this controversy, neither party relied upon the agreement. In his bill, Warren made no mention of it, and when it was set forth in the answer, he did not amend his bill and ask relief upon the agreement, but insisted on his case as made originally in his bill, claiming contrary to the agreement, and only prays in his replication that if he cannot have the relief he asks against the agreement, he may have relief under the agreement. Even if this had been made an amendment to the bill, it would be demurrable, as setting up inconsistent titles to different measures of relief.

Bernheimer v. Marshall, 2 Minn., 78; Tullis v. Orthwein, 5 Minn., 377.

But the agreement, even according to its terms, could not help Warren's case. It does not purport to convey or affect the title to the land. It concerned the possession only, and it had been fully executed by each party taking possession of what was assigned to him, and holding thereafter as if he had made the settlement entirely independently of the other, leav ing their respective settlements to draw each after it its own legal consequences, notwithstanding the agreement.

between them, a contract of partition was entered into, by which, after establishing a dividing line which ran diagonally across the premises in controversy and through the plowed land, it was agreed that Warren should have the sole and exclusive use of all the lands selected for occupancy situated on the east side of the line, and Van Brunt of all on the west. The house they had built was on the part set off to Warren, but by the agreement, Van Brunt was to have the exclusive use of it until May 1, 1854, when, on the payment to him of one half its cost, he was to surrender the possession to Warren for his exclusive use thereafter. Upon the execution of this contract, Warren went with his family to the Town of Mankato, leaving Van Brunt in the house. Soon after, and within a reasonable time, he commenced the erection of a new house on a part of the premises set off to him, adjoining the disputed property, into which he moved in the fall of 1853, with his family.

Van Brunt continued to occupy the first house in accordance with the contract of partition until May 1, 1854, when Warren, having paid him for one half its cost, evicted him by legal proceedings. After his eviction he went into an abandoned claim shanty, on the part of the premises set off to him, and remained there from two to four weeks, during which time he erected a new house upon the disputed property, but upon his side of the dividing line. As soon as this house was completed, he moved into it with his family, and resided there until his death, on the 5th of January, A. D. 1856. His family occupied the same house as their residence after his death, until their title was perfected under his claim. In 1853 and 1854, he plowed and cultivated about twenty acres of This is a contest between two preemption land occupied by him, seventeen of which were claimants for the ownership of the S. E. of on the disputed forty. In 1854 and 1855, he the N. E. section 13, township 108, N. R. 27 plowed a few acres more, and cultivated all W. in the State of Minnesota. The defendants his improved land. In 1855 he inclosed all his in error have the legal title under a patent from improvements with a fence and dug some the United States, issued upon the claim of ditches. In addition to his house, he put upon George M. Van Brunt, deceased. Warren, the the disputed property a large corn-crib, a cowplaintiff in error, alleging that he had an elder house and other outbuildings. and better right of preemption, sought by his action in the court below to charge the representatives of Van Brunt as his trustees, and to compel them to convey to him the title they acquired by the patent.

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

The case was decided below upon facts found by the court and stated in the record. No exception was taken to the finding, and the question presented, therefore, for our determination is, whether, upon the facts as found, there is error in the decree..

These facts are substantially as follows: War ren and Van Brunt were each in 1853, and thereafter until the death of Van Brunt, legally competent to avail themselves of the preemp tion laws of the United States. In May, 1853, they jointly selected, for occupancy, about 280 acres of unsurveyed public land in Minnesota, to which the Indian title had been extinguished. They settled upon forty acres in dispute, and after plowing and planting two or three acres, proceeded with their joint means and labor to erect thereon a house for a residence, into which they moved with their families in June. They occupied this house together until the 18th of July, when a difficulty having arisen

After the eviction of Van Brunt from the first house, Warren moved into it and resided there until the fall of 1854. He then went back to the house he built after the partition, and remained there until after Van Brunt's heirs perfected their title. He cultivated and improved his lands upon the east of, and up to the agreed division line by fencing, plowing and planting, and kept tenants in the first house all the time after he left it until the commencement of the action in the court below. Neither of the parties disputed the right of the other to occupy and cultivate up to the line of division, until after the title of the Van Brunt heirs was perfected.

The township lines were surveyed through the public lands which included the premises in dispute in 1854, and the subdivision line in 1855. When the township lines were run, Warren was residing with his family in the first house, and his improvements on the disputed forty, including the house, were then equal to, if not greater in value than those of Van Brunt.

On the 19th July, 1855, Van Brunt filed in the land office his declaratory statement under the preemption laws, claiming the right to enter

and purchase the N. S. E. and S. N. E. | section 13, T. 108, N. R. 27 W., containing 160 acres. His claim included the forty acres in dispute. In his statement he gave the 4th of June, 1855, as the date of his settlement.

of the register and receiver under his general powers in respect to private land claims and the issuing of patents. 5 Stat. at L., 107, sec. 1; Barnard v. Ashley, 18 How., 44 [59 U. S., XV. 285]. The issue of the patent upon the award of these officers was final and conclusive as between the United States and the several claimants. It passed the legal title to the patentee. The remedy of the defeated party, if any therethe patentee or those claiming under him.

It is claimed on the part of the defendants in error that the decision of the government offi. cers in this case, is conclusive as between the claimants themselves, inasmuch as there was an actual submission of the controversy by both, and the court has found that there was no fraud, unfairness or misconduct in the hearing or in the production of the testimony, either on the part of Van Brunt and his heirs, or the several officers who were called upon to act.

It appears from the pleadings and the state ments of the counsel for the plaintiff in the argument, that in December, 1855, Warren filed his declaratory statement, also claiming the right under the preemption laws to enter and pur-after, was by a proceeding in the courts against chase the disputed premises, and the N. Ŵ. ‡ S. W. and S., N. W. 1, sec. 13, T. 108, N. R. 26 W., in all 160 acres. He gave the date of his settlement as November 17, 1853. On the 7th of March, 1856, Warren served a notice upon the widow and administratrix of Van Brunt, that he should contest her claim to the preemption of the forty acres in controversy, and in consequence of this notice both claimants appeared before the Register and Receiver of the Land Office, and produced and examined their witnesses. After a full hearing, these officers were unable to agree upon a decision, and the papers and proofs were thereupon sent to the Commissioner of the General Land Office who, on the 4th of April, 1857, decided in favor of the Van Brunt claim. Warren appealed to the Secretary of the Interior who, on the 31st October, A. D. 1857. affirmed the decision of the Commissioner. On the 15th of May, 1860, a patent was issued to the heirs of Van Brunt for the whole 160 acres claimed by him. In January, 1857, Warren received a patent for the 120 acres claimed by him in section 18, and in February, 1865, commenced his action to recover from Van Brunt's heirs the disputed forty acres. He now seeks to reverse the decision of the Supreme Court of Minnesota in that action confirming the title of the heirs.

When Warren and Van Brunt made their settlement upon the lands, in 1853, they acquired no right of preemption, as the Act of Congress then in force only gave that right to settlers upon lands in the then Territory of Minnesota which had been surveyed. 5 Stat. at L., 455, sec. 10. On the 4th of August, A. D. 1854, the provisions of the Preemption Act were extended to unsurveyed lands in that Territory; but it was further provided that if, when the lands were surveyed, it should appear that two or more persons had settled upon the same quarter section, each should be permitted to enter his improvements as near as might be by legal subdivisions. 10 Stat. at L., 576.

There is no legal subdivision of the public lands less than a quarter of a quarter section, or forty acres, except in the case of fractional sections. The lands in controversy, therefore, could not have been subdivided for the purposes of entry and purchase. The forty acres must be taken as a whole or not at all.

Warren and Van Brunt each claimed the right to purchase the whole. There could be no entry by either until the questions arising between them had been settled. To meet such a case, the Act of Congress under which they each made claim, provided that the register and receiver of the land district in which the land was situated should make such settlement, subject to an appeal to and revision by the Secretary of the Interior. 9 Stat. at L., 395, sec. 3. The Commissioner of the General Land Office exercised a supervision over this action

This question has recently been fully considered by this court, in the case of Johnson v. Towsley, 13 Wall., 72, 86, 87 [80 U. S., XX., 485. 488], and it was there held that "when those officers decide controverted questions of fact, in the absence of fraud or impositions, or mistake, their decision on those questions will be final," but that "it was the right of the proper courts to inquire, after the title had passed from the government and the question became one of private right, whether, according to the established rules of equity and the Acts of Congress concerning the public lands, the party holding that title should hold absolutely as his own or as trustee for another." We are satisfied with this ruling, and this leads us to inquire whether, upon the facts as found by the court, the officers of the government did err in awarding the patent to Van Brunt. The record does not disclose the facts found by the officers.

It is first contended by Warren that the patent should have been issued to him, because his settlement upon the disputed premises was both in fact and by the declaratory statements of the respective parties anterior to that of Van Brunt, and because by the Act of Congress the first settlement gives the better right. It is not important for us to know what the claims of the parties have been. We must look to the facts as they actually existed, and from these it appears that neither of the parties had an advantage over the other by reason of a prior settlement. They both went upon the premises at the same time and, for awhile, their occupancy was joint. After the partition, Van Brunt remained in the house alone. He was there in no respect as the tenant of Warren, but by reason of his right as part owner. His short absence after his eviction upon his lands adjoining, cannot be considered an abandonment of his possession, for he must have been all the time at work upon his new house, which was finished and ready for occupation in from two to four weeks. Warren was absent at Mankato, after the partition, from July until October, and he did not actually reside himself on the disputed forty many months. He had, therefore, no claim superior to that of Van Brunt on account of his possession.

It is next insisted that a joint entry of the forty acres by the two should have been permitted. No such demand was made upon the