ant's prayer for equitable relief, or should dismiss the bill with leave to bring an action at law, either would be a valid exercise of jurisdiction. If any error were committed in the exercise of such jurisdiction, it could only be remedied by an appeal to the Circuit Court of Appeals." 161 U. S. 355, 358.

In principle, the judgment in Smith v. McKay embraces the present case. The issue presented by the intervening petition did not raise any question under the Constitution or statutes of the United States, and depended only upon principles of general law applicable to all courts having concurrent jurisdiction over the same subject matter. We repeat that the jurisdiction of the Circuit Court was not and is not questioned for want of power in that court, as a Federal tribunal, to take possession of the assets and property of the Post Company; only its authority, upon principles of equity and comity, to do that of which complaint was made by the Louisville Trust Company. We do not think that Congress intended that any such question should be the basis of a direct appeal to this court from a Circuit Court.

The question again arose in Blythe v. Hinckley, 173 U. S. 501, 506, where this court said: "Appeals or writs of error may be taken directly from the Circuit Courts to this court in cases in which the jurisdiction of those courts is in issue, that is, their jurisdiction as Federal Courts, the question alone of jurisdiction being certified to this court. The Circuit Court held that the remedy was at law and not in equity. That conclusion was not a decision that the Circuit Court had no jurisdiction as a court of the United States. Smith v. McKay, 161 U. S. 355; Blythe Co. v. Blythe, 172 U. S. 644. The Circuit Court dismissed the bills on another ground, namely, that the judgments of the state courts could not be reviewed by that court on the reasons put forward. This, also, was not in itself a decision of want of jurisdiction because the Circuit Court was a Federal court, but a decision that the Circuit Court was unable to grant relief because of the judgments rendered by those other courts. If we were to take jurisdiction

on this certificate, we could only determine whether the Circuit Court had jurisdiction as a court of the United States, and as the decree rested on no denial of its jurisdiction as such, but was rendered in the exercise of that jurisdiction, it is obvious that this appeal cannot be maintained in that aspect."

It is proper to observe that this court in Shields v. Coleman, 157 U. S. 168, 177, assumed jurisdiction upon direct appeal from a Circuit Court in a case involving the question whether that court had authority to appoint a receiver of property which was at the time in the possession of a receiver appointed by a state court. As the Federal court had, in that case, taken property out of the physical possession of a receiver of the state court, this court expressed its views upon the question whether the possession of the state court should have been disturbed by the Federal court, and it rendered judgment accordingly. But the precise question here presented as to the jurisdiction of this court under the act of 1891, on direct appeal from the Circuit Court, was not there raised or considered. In United States v. More, 3 Cr. 159, 172 (1805), it was held that this court was without jurisdiction, under the law as it then was, to review the final judgment of the Circuit Court of the District of Columbia in a criminal case. It was suggested at the bar, in that case, that this court had, in a previous case, exercised appellate jurisdiction in a criminal case. Chief Justice Marshall met that suggestion by saying: "No question was made in that case as to the jurisdiction. It passed sub silentio, and the court does not consider itself as bound by that case." To the same effect, substantially, are United States v. Sanges, 144 U. S. 310, 319, and Cross v. Burke, 146 U. S. 82.

In the circumstances of the present case, and to avoid misapprehension in the future, we deem it our duty distinctly to declare the true meaning of the word jurisdiction as used in the fifth section of the Judiciary Act of 1891.

For the reasons stated, the appeal from the Circuit Court must be dismissed for want of jurisdiction in this court.

It is so ordered.

191 U. S.

Statement of the Case.

GERTGENS v. O'CONNOR.

ERROR TO THE SUPREME COURT OF THE STATE OF MINNESOTA.

No. 65. Argued November 9, 10, 1903.-Decided November 30, 1903.

The decision of the land department in a contest case is conclusive in the courts upon all questions of fact.

A patent is a conveyance by the government of the title, and is conclusive in the hands of the patentee as against every individual unable to show a superior right, legal or equitable.

The act of March 3, 1887, 24 Stat. 556, is remedial in its nature and, in addition to directing an adjustment with railroad companies of their land grants, provided for securing the equitable rights of parties contracting with the companies, and also those of settlers upon lands within the limits of the grants.

The term "bona fide purchaser" found in the act is not used in its technical sense, but only as requiring good faith in the transactions between the railroad companies and parties contracting with them in respect to the lands.

One who for a sufficient consideration has obtained an option from a railroad company, giving him the right to purchase within a specified time a large tract of land, and in reliance upon that option has expended money and labor in securing settlers, may be regarded as a "bona fide purchaser" within the scope of the act and entitled to the preferential right of purchase given by section 5.

While a settler is favored in law, the equities of others must also be considered; and where he places his improvements upon land with full notice of the superior rights of others thereto, he is not entitled to be regarded as a bona fide settler either within the letter of the statute or within the reach of any reasonable equities.

THIS was an action in ejectment commenced on February 15, 1900, by John P. O'Connor against Jacob Gertgens, in the District Court of the Sixteenth Judicial District of the State of Minnesota, to recover possession of the southwest of section 9, township 125, range 45 west. The defendant appeared and answered. A trial was had before the court without a jury, resulting in a judgment for the plaintiff, which was, on April 4, 1902, affirmed by the Supreme Court of the State, 85 Minnesota, 481, and thereupon this writ of error was sued out.

The facts are these: The tract was surveyed public land, situate in the county of Traverse, and lying within the twentymile indemnity limits of the grant to the St. Paul, Minneapolis and Manitoba Railway Company, as defined by acts of Congress dated respectively March 3, 1857, 11 Stat. 195, c. 99, and March 3, 1865, 13 Stat. 526, c. 105. It, with other lands, was withdrawn from settlement and entry under the land laws of the United States by executive withdrawal, dated May 25, 1869. In April, 1885, the tract, being within the indemnity limits, was, with other tracts, selected by the railway company as indemnity for deficiencies claimed to exist within the place limits. There selections were all finally cancelled on October 23, 1896.

Prior to April 15, 1891, the land was unoccupied, but at that time the defendant, being fully qualified as a homestead claimant, took possession with a view of claiming it as a homestead under the laws of the United States, has ever since occupied it as his homestead and made improvements thereon of the value of $1,200. He made application at the local land office for a homestead entry but it was refused by the local land officials, and such refusal sustained on appeal by the Commissioner of the General Land Office. The refusal was on the ground that the land was within the twenty-mile indemnity limits of the railway company, and had been selected by the company in 1885, long before the defendant went upon the land.

In July, 1880, the railway company entered into a written agreement with the Rev. John Ireland, a citizen of the United States, by which the company gave him the sole and exclusive right and authority to place settlers upon and sell to them all the lands in the counties of Big Stone and Traverse, to which the railway company might be entitled by virtue of the land grants of March 3, 1857, and March 3, 1865, and which were included within the indemnity limits of said grants. This contract expired December 31, 1881. On March 30, 1883, the railway company made a new agreement, which, after referring to the prior contract, contained this stipulation:

"Now, therefore, the contract herein referred to having expired on the 31st day of December, A. D. 1881, and the R. R. Co. not yet having acquired title to the lands in question, it is now agreed between the R. R. Co. and the Rev. John Ireland that when title to these lands are acquired by the R. R. Co., and notice of the same is given to Rev. John Ireland, he shall have the privilege and the right at any time within sixty days of date of said notice of purchasing for himself or such parties as he may designate, due regard being had, as stated in supplement to said contract for settlers who may have obtained any claim upon such lands previous to the date of said contract, any or all of the lands included in said contract, not to exceed the amount of 50,000 acres at uniform price of four dollars per acre, ten per centum of all receipts from said lands at the above price to be furthermore paid to the said Rev. John Ireland according as the monies are received by the company, when such lands shall be purchased by Rev. John Ireland or those whom he may designate, the conditions of sale usual with the company shall be observed or at least the interest upon the purchase money shall be paid from the date of purchase to the fifteenth day of December following, when the usual condition shall be enforced."

This agreement was duly recorded in the office of the register of deeds of Traverse County, Minnesota. On February 8, 1896, Ireland made application to the Land Department for leave to purchase from the government the land in controversy under the provisions of the fifth section of the act of Congress of March 3, 1887, 24 Stat. 556, c. 376. This application was contested by the defendant, but the claim of Ireland was sustained by all the officials of the Land Department, from the local officers up to the Secretary of the Interior. A patent was thereupon issued to Ireland, from whom the plaintiff obtained a conveyance. The act of March 3, 1887, was an act directing the Secretary of the Interior to adjust, in accordance with the decisions of the Supreme Court,