Transcript of Record — Guaranty Savings Bank v. Bladow

(16,984.)

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, Isom.

No. 399.

GUARANTY SAVINGS BANK, PLAINTIFF IN ERROR,

VS.

ALBERT BLADOW.

IN ERROR TO THE FOURTH JUDICIAL DISTRICT COURT IN AND FOR

RICHLAND COUNTY, STATE OF NORTH DAKOTA.

INDEX.

Original. Print.

Stipulation as to printing parts of record. .......0 6.0... 00... eee eee 1 l

SOPAGABINE oo S525 6 sees seus te ooo cee Ta ey ete ae ae eee 2 l

Ankwer ol AlerG BAROW ale. ks ces cao eh eae ei cae ennai 8 5

Aarped euaianent OF TAGs oo oo ss Svcs oie ee hes ole ceen es 10 7

SUURMONE HE GIMEFICL COURG 6 ois «ns 6b odie vbaeesnc mene ces 18 12

Assignment of errors upon appeal to the supreme court of the

Sate oF Nort TARO. 655.552 oo gsaenas nents sceeeaeues 20 3

Opinion of the supreme court of the State of North Dakota. . 20 3

ere rere ee PE as eines Bene ye a : 26 17

Judgment on remittitur....... Soy MiBe Eco ibe eee 27 18

Assignment of errors on writ ob ereer seach ete eects Sp aie w oe bay 28 19

Jupp & Derwerter, Prinrers, Wasuincron, D. C., NovemBer 9, 1898.

i

GUARANTY SAVINGS BANK VS. ALBERT BLADOW. 1

1 In the United States Supreme Court.

THe Guaranty Savinos Bank, Plaintiff in —s

vs.

ALBERT BLApow, Defendant in Error.

It is hereby agreed by and between the respective parties, plaintiff

and defendant, in the above-entitled action that the material points

of the record in said cause necessary to have printed for the con-

sideration of the Supreme Court of the United States on the hearing

of the writ of error herein consist of the complaint, answer of de-

fendant Bladow ; agreed statement of the facts; the opinion of the

supreme court of the State of North Dakota on said appeal ; the

remittitur sent down with the record in said cause from the supreme

court of the State of North Dakota to the district court of Richland

county, dated November 10th, 1896; the judgment entered in the

district court of Richland county on the 12th day of May, 1898, in

obedience to said remittitur, and the assignments of error filed

herein with the writ of error by the plaintiff in error. ‘True copies

of all of said papers are hereunto annexed for the convenience of

the clerk of the Supreme Court of the United States in the printing

of said record.

Dated September 5th, 1898.

S. B. PINNEY,

Altorneys for the Plaintiff in Error.

WM. H. STANDISH,

Attorneys for the Defendant in Error.

W. E.

2 In the United States Supreme Court.

v8.

THE GuARANTY Savings Bank, Plaintiff in Error,

ALBERT BLAbow, Defendant in Error.

The Guaranty Savings Bank, as plaintiff, commenced this action

in the district court of Richland county, North Dakota, against

Charley Anderson, Franklin Hall, and Albert Bladow, and stated

its cause of action in the following—

Complaint.

I.

That the plaintiff is a corporation duly organized and existing

under the laws of the State of New Hampshire and having its

principal place of business in the city of Manchester, in said State.

II.

That on the 20th day of July, 1881, the above-named defendant,

Charley Anderson, made, executed, and delivered to H. E. Fletcher,

1—399

ANSON ARI MOLE SIE EE TAIL

2 GUARANTY SAVINGS BANK VS. ALBERT BLADOW.

of Minneapolis, Minnesota, his promissory note in writing, of that

date, whereby, on the first day of December, 1886, he promised and

agreed to pay to the order of the said H. E. Fletcher, at his office,

in the city of Minneapolis, in the State of Minnesota, the sum of

four hundred and fifty dollars ($450.00), with interest thereon, at the

rate of 12 per cent. per annum, after maturity until paid.

III.

That on the 20th day of July, 1881, the above-named defendant,

Charley Anderson, made, executed, and delivered to H. E. Fletcher

his certain promissory note in writing, of that date, whereby, on the

first day of December, 1886, he promised and agreed to pay to the

order of the said H. E. Fletcher, at his office, in Minneapolis, Min-

nesota, the sum of thirty-six ($36.00) dollars, with interest, at the rate

of 12 per cent. per annum, after maturity until paid.

3 IV.

That on the 20th day of July, 1881, the defendant, Charley An-

derson, made, executed, and delivered to H. E. Fletcher his certain

other promissory note in writing, of that date, whereby, on tlie first

day of December, 1885, he promised and agreed to pay to the order

of the said H. E. Fletcher, at his office, in the city of Minneapolis,

Minnesota, the sum of thirty-six ($36.00) dollars, with interest, at the

rate of 12 per cent. per annum, after maturity until paid.

¥.

The said defendant, Charley Auderson, to secure the payment of

said promissory notesand interest thereon, as mentioued in said

notes, according to the tenorjthereof, did, on the 20th day of July,

1881, make, execute, and deliver to said H. E. Fletcher his certain

mortgage deed of that date of and upon the fullowing-described real

estute, situated in the county of Richland, in the then Territory of

Dakota, now State of North Dakota, to wit:

The north half of northeast quarter of section twenty-four (24),

township one hundred and thirty-one (131), range fifty (50), and

west half of northwest quarter of section nineteen (19), township one

hundred and thirty-one (131), range forty-nine (49) west, of the fifth

principal meridian.

VI.

That said mortgage was duly filed for record in the office of the

register of deeds in and for said county of Richland, in the then

Territory of Dakota, now State of North Dakota, on the 25th day of

July, 1881, at 11 o’clock in the forenoon, and duly recorded in Book

“E” of Mortgages, on page 433.

VIL.

That said mortgage was, on the 20th day of June, 1882, for a val-

uable consideration, duly assigned to the plaintiff by an instrument

in writing, dated on said day; which said assignment was filed for

ie

aa

GUARANTY SAVINGS BANK V8. ALBERT BLADOW. 3

record in the office of the register of deeds in and for Richland

county, in the then Territory of Dakota, now State of North Dakota,

on the 2nd day of October, 1894, at eleven o’clock in the fore-

noon, and duly recorded in Book “ N ” of Mortgages, on page

211,and the plaintiff is now the owner and holder of the

notes and mortgage.

VIII.

That said mortgage contained, among other things, the agree-

meuts, conditions, and covenants that if any part of said promissory

notes or the interest thereon, as aforesaid, should remain unpaid

after the same should become due and payable, or if said Setesdunt.

Charley Anderson, failed to comply with any of the agreements or

conditions contained in said mortgage, or if said mortgagee or his

assigns should fail to pay the taxes levied or assessed against said

land, then in such case the said H. E. Fletcher or his assigns might

proceed forthwith to collect the same by foreclosure or otherwise.

And it is further provided and agreed by the terms of said mort-

gage that in case legal proceedings should be commenced for the

foreclosure of said mortgage, said H. E. Fletcher or his assigns

should be entitled to and might tax with the costs of foreclosure the

sum of fifty dollars ($50.00) attorney’s fees, in addition to the sum

or costs allowed in ful by the law, and such mortgage was given

to secure the same as part of the debt secured thereby.

IX.

That default has been made in the conditions of said notes and

mortgage in this, that said notes were not paid at maturity thereof,

or at all, or any part thereof, and said mortgagor failed to pay the

sum of thirty-three and seventy-nine one-hundredths dollars ($33.79),

taxes levied and assessed against said land for the years 1887, 1888,

and 1889; which said sum plaintiff was obliged to pay and did pay

on the 14th day of August, 1890, and there is now due and owing the

plaintiff from said defendants on said notes and mortgage,

5 according to the terms and conditions thereof, the sum of five

hundred twenty-two dollars ($522.00), with interest at the

rate of 12 per cent. per annum on four hundred eighty-six — ($486.00)

thereof from and siuce the first day of December, 1886, and interest

at the rate of 12 per cent. per annum on thirty-six dollars ($36.00)

thereof from and since the first day of December, 1885, and the fur-

ther sum of thirty-three and seventy-nine one-hundredths dollars

($33.79), taxes paid by said plaintiff, as aforesaid, with interest

thereon at the rate of 12 per cent. per annum from and since the

14th day of August, 1890, all aceording to the terms and conditions

of said notes and mortgage.

X,

That there has been no proceedings had at law or otherwise for

the recovery of the debt secured by said mortgage, or any part

thereof.

q GUARANTY SAVINGS BANK Vs. ALBERT BLADOW.

XI.

That on the 8th day of May, 1882, said defendant, Charley Ander-

sou, by warranty deed, did on said day convey said above-described

land and premises to one R. N. Ink, which said deed was filed for

record in the office of the register of deeds in aud for Richland

county, in the then Territory of Dakota, now State of North Da-

kota, on the 10th day of May, 1882, at 10 o’clock in the forenoon,

and was duly recorded in Book “ D” of Deeds, on page 15, and said

R. N. Ink, ou the 7th day of April, 1883, by warranty deed, dated

on said date, conveyed sdid land and premises to one J. S. Ink,

which said deed was filed for record in the office of the register of

deeds in and for Richland county, in the then Territory of Dakota,

now State of North Dakota, on the 9th day of April, 1883, at 10

o’clock in the forenoon, and wes duly recorded in Book “ D” of

Deeds, on page 291; that on the 6th day of January, 1885, said J.S.

Ink, by warranty deed, dated on said day, conveyed said land and

premises to the defendant herein, Albert Bladow, which said deed

was filed in the office of the register of deeds in and for said county

of Richland, in the then Territory of Dakota, now State of

6 North Dakota, on the 6th day of January, 1885, at three

o’clock in the forenoon, and was duly recorded in Book “ K”

of Deeds, on page 55, and said defendant, Albert Bladow, under

said deed, took possession of said land and premises and has ever

since remained in possession as owner thereof in fee-simple.

XII.

That said defendant, Franklin Hall, has or claims to have some

interest or lien upon the premises herein described, which said in-

terest or lien is a mortgage in the sum of five hundred dollars

($500.00), made, executed, and deliver- by said defendant, Albert

Bladow, to said defendant, Franklin Hall, on the 22nd day of No-

vember, 1893, and filed for record in the office of the register of

deeds in and for Richland county, North Dakota, on the 4th day of

December, 1893, at three o’clock in the forenoon, aud duly recorded

in Book 10 of Mortgages, on page 378, and said lien of said defend-

ant, Franklin Hall, upon the premises herein described, acquired

by him by, through, and under said mortgage was and is subject

to the lien of the mortgage of the plaintiff herein, and said mort-

gage of the plaintiff herein is a first lien upon said premises herein

described.

Wherefore plaintiff demands judgment against the defendants:

First. For the sum of five hundred and fifty-five and seventy-

nine-hundredths ($555.79) dollars, and interest on the sum of four

hundred eighty-six dollars ($486.00) thereof, at the rate of 12

per cent. per annum, from and since the Ist day of December, 1886,

and interest on the sum of thirty-six dollars ($36.00) thereof, at the

rate of 12 per cent. per annum, from and since the Ist day of De-

cember, 1885, and interest on the sum of thirty-three and seventy-

uine one-hundredths dollars ($33.79) thereof, at the rate of 12 per

cent. per annum, from and since the 14th day of August, 1890, and

GUARANTY SAVINGS BANK VS. ALBERT BLADOW. 5

the further sum of fifty dollars ($50.00) attorney’s fees, as provided

for in said mortgage, and the costs and disbursements of this

action.

7 Second. That the usual decree be made for the foreclosure

of said mortgage and the sale of the premises herein described,

or so much thereof as may be necessary to pay the sum found due,

with interest, costs, and attorney’s fees, and costs of such sale, and

the payment out of the proceeds of the amount of said judgment, so

far as the proceeds will pay the same; that the plaintiff may have

execution against the property of said defendants for any deficiency

that may remain after applying all the proceeds of such sale of such

premises properly applicable thereto and the satisfaction of said

judgment.

Third. That said defendants, Albert Bladow and Frank!in Hall,

may be forever barred and foreclosed of all rights, claims, liens, and

equity of redemption iu and to the said premises and every part

thereof, except only the right of said defendants to redeem the

premises within one year after such sale.

Fourth. That all said defendants and each of them and all persons

claiming or to claim by, through, or under said defendant, Charley

Anderson, be forever barred and foreclosed of all rights, claims,

liens, and equity of redemption in and to said premises and every

part thereof, except only by right of said defendants to redeem the

premises within one year after such sale, and the possession of said

premises be delivered to such purchaser at such sale on the produc-

tion of the sheriff’s deed to the premises; that the plaintiff or any

party to this action may become a purchaser at such sale.

Fifth. That the plaintiff may have such other and further or dif-

ferent relief in the premises as may be just.

Dated this 17th day of January, 1894.

FRED B. MORRILL,

Plaintiff’s Attorney.

( Verified.)

The defendants Charley Anderson and Franklin Hall

8 made no appearance in the action, but the defendant Albert

Bladow appeared therein and filed the following—

Answer.

First. That he denies each and every allegation in said complaint

contained not hereinafter admitted, qualified, or explained.

Second. That as to the matters alleged in paragraphs 1, 2, 3, 4, 5,

6, 7, and 8 in said complaint, defendant has not knowledge or in-

formation sufficient to enable him to form a belief, and he therefore

denies the same generally and specifically.

Third. Defendant expressly denies that the plaintiff has paid or

caused to be paid the sum of $33.79 or any other sum for taxes

upon the premises described in plaintiff’s complaint for the years

1887, 1888, and 1889 or for any other years; and in that behalf the

defendant alleges that during all of said years said land was not

so PRR WENGER ER BI

6 GUARANTY SAVINGS BANK VS, ALBERT BLADOW.

subject to taxation, for the reason that the title to the same was in

the Government of the United States.

Fourth. Defendant alleges that the land described in plaintiff’s

complaint as the north half of the northeast quarter of section

twenty-four, in township one hundred thirty-one north, of range

fifty, and the west half of the northwest quarter of section nineteen,

in township one hundred thirty-oue north, of range forty-nine west,

are the same lands otherwise known and described in the United

States Government survey thereof as the north half of the northeast

quarter of section twenty-four, in township one hundred thirty-one

north, of range 50 west, and lots one and two, in section nineteen,

in township one bundred and thirty-one north, of range forty-nine

west.

Fifth. Further answering, the defendaut alleges that he is the

absolute owner of the lands above described and the whole thereof,

and has been such absolute owner from and since the 6th day of

July, 1893, upon which day the Government of the United States,

by its instrument in writing, known asa patent, dated on that

9 day, conveyed said premises to this defendant, which instru-

ment in writing, known as a patent, was filed for record in

the office of the register of deeds of Richland county, North Dakota,

on the 25th day of October, 1893, at the hour of 2.15 o’clock p. m.,

and duly recorded in said office in Book “ P” of Deeds, at page 234.

Sixth. Defendant alleges upon information and belief that during

the year 1881 one Charley Anderson, named in plaintiff's complaint

as the mortgagor therein mentioned, made an entry of said lands

under the laws of the United States relative to and regulating the

acquirement of lands of the United States by private individuals

under the provisions of the law relative to pre-emptions, and that

thereafter and on the 20th day of July, 1881, the said Charley

Anderson made final proof upon said lands under the laws regu-

lating pre-emptions, and made payment therefor to the receiver of

the land office at Fargo, in the then Territory of Dakota, and on

said day received from the receiver his duplicate receipt in writing

acknowledging the payment to him of the purchase price of said

lands by the said Charley Anderson, which receiver’s receipt was

filed for record in the office of the register of deeds of Richland

county, in the then Territory of Dakota, on the 25th day of July,

1881, at 11 o’clock a. m., and was therein recorded in Book “ D” of

Deeds, at page 529.

Seventh. Defendant further alleges that the final proof aforesaid

of Charley Anderson upon said lands was wholly false and fraud-

uleut, and made by the said Charley Anderson with intent to de-

fraud the Government of the United States out of said lands; that

said Charley Anderson, at no time prior to the making of said final

proof aud the issuance to him of said receiver’s receipt for payment

of the purchase price of said lands, ever lived upon, occupied, or

cultivated said lands or any portion thereof.

Eighth. That after the making of said final proof by said

Anderson and the issuance to him of said receiver’s receipt, as

10 aforesaid, and prior to the year 1889, by an order of the Sec-

retary of the Interior of the United States, the entry of said

me

GUARANTY SAVINGS BANK VS. ALBERT BLADOW. 7

Charley Anderson for and upon said lands, togetlhei with the re-

ceiver’s receipt aforesaid, issued therefor, were cancelled and declared

wholly null and void, and said lands were, by an order of the said

Secretary of the Interior, declared to be public lands of the United

States, subject to entry under the hormestead laws of the United

States; that in the year 1888 this defendant made due lawful entry

of said lands under the homestead laws of the United States, and

that from said time up to the present time this defendant has been

and now is in the open, notorious, and exclusive possession of said

lands and the whole thereof.

Ninth. That this defendant is now the absolute owner in fee of

said land and the whole thereof.

Wherefore this defendant prays judgment of this court (1) that

the plaintiff take nothing by this action; (2) that this defendant

have judgment against the plaintiff for his costs and disbursements

herein; (3) that in this action this court determine by its proper

decree that the plaintiff has no estate, right, title, interest in or

claim upon said land or any part therecf; (4) that the title of this

defendant to said lands and the whole thereof be declared, as

against the plaintiff in this action, good and valid; (5) for such

other and further relief as to the court may seem just in the prem-

ises.

Dated January 31st, 1894.

W. E. PURCELL,

Defendant Bladow’s Attorney.

Verified.

Thereupon the issue made by the foregoing complaint and answer

was submitted to the district court of Richland county on the fol-

lowing—

Agreed Statement of Facts.

1. That on the 6th day of January, 1881, the defendant

ll Charley Anderson filed in the United States land office at

Fargo, in the then Territory of Dakota, his homestead appli-

_ cation to enter the following described land, situated in Richland

county, now State of North Dakota, and which land is the same

land involved in this action, to wit: The north half of the north-

east quarter of section twenty-four, in township one hundred thirty-

one north, of range 50 west, and the west half of the nurthwest

quarter of section nineteen, township one hundred thirty-one north,

range forty-nine west, containing one hundred and forty-three and

twenty-nine one-hundredths acres of land, according to the Govern-

ment survey thereof; that said homestead application was passed

upon by the register and receiver of said land office, by them ac-

cepted and placed of record, and receipt numbered 7471 issued to

said Charley Anderson, he paying to the receiver the legal fees

therefor, to wit, the sum of $14.00.

2. That after due notice by publication, pursuant to an order of

the register of the above-named land office, the said Charley Auder-

son, on the 20th day of July, 1881, appeared before the register and

8 GUARANTY SAVINGS BANK VS. ALBERT BLADOW.

receiver of said land office, with his witnesses, and submitted and

presented his final proof under section 2301 of the Revised Statutes

of the United States, consisting of his testimony and the testimony ‘

of his witnesses in due form; that said proof and testimony was

duly considered and — upon by the register and receiver of

said land office and by them accepted, allowed, and placed of

record, and said Charley Anderson paid to the receiver of said land

office for the Government of the United States the sum of $179.11,

in full payment of the required fees and commissions of said land,

and the register and receiver of said land office issued to said

Charley Anderson their final certificate and receipt numbered 2971 mi

therefor, there being no adverse claim to said tract; that said final

receipt was filed for record in the office of the register of

12 deeds in and for the county of Richland, North Dakota, on

the 25th day of July, 1881, at 11 o’clock a. m.,and duly re- all

corded in Book “ D,” at page 529.

3. That on the 20th day of July, 1881, and after said proof and

payment, the said Charley Anderson duly mortgaged said lands to

one H. E. Fletcher by instrument of mortgage executed on that date,

being for the payment of the sum of $450.00; which mortgage was

recorded in the office of the register of deeds of said county on the

25th day of July, 1881, at 11 o’clock a. m., in Book “ E” of Mort-

gages, at page 433.

4. That on the 20th day of July, 1881, and after said proof and

payment, said Charley Anderson duly mortgaged said lands to

H. E. Fletcher by an instrument of mortgage dated on said date for

the sum of $48.75; which mortgage was duly recorded in the office

of the register of deeds on the 26th day of July, 1881, at 11 o’clock

99

a. m., in Book “ E” of Mortgages, at page 531.

5. That said first-mentioned mortgage was given by said Ander-

son to secure the payment of a certain promissory note executed

and delivered by said Anderson to said H. E. Fletcher, whereby

said Anderson promised to pay to the order of said Fletcher on the

1st day of December, 1886, the sum of $450.00, with interest thereon,

at the rate of 12 % per annuum, from and after maturity until paid;

that attached to said first note and as a part thereof were five coupon

notes for the suin of $36.00 each, representing the interest on said

first note to the maturity tlrereof, each of said coupon notes bearing

interest from and after maturity until paid at the rate of 12 per

cent. per annum. whe

6. That thereafter and on the 20th day of June, 1882, the said

H. E. Fletcher, for value received, assigned said first-mentioned

mortgage to the plaintiff herein by an instrument in writing, dated

on that day; which assigument was duly filed in the office of the

register of deeds in and for said county on the 2nd day of October,

1884, at 7 o’clock a. m., and recorded in Book “M,” at page 211;

that said assignment was not under seal of the assignor, and

13 the signature of said H. E. Fletcher thereto was uot witnessed,

but said assignment was acknowledged before George A.

Parker, a notary public of Hennepin county, Minnesota, by said

H. E. Fletcher on the 20th day of June, 1882.

|

ie

GUARANTY SAVINGS BANK VS. ALBERT BLADOW. 9

7. That thereafter and on the 20th day of November, 1883, in con-

sideration of the full payment of said H. E. Fletcher thereof, the

said H. E. Fletcher made, executed, and delivered to said Charley

Anderson a satisfaction in due form of the mortgage mentioned

second herein and of record in Book “ E” of Mortgages, at page

431, which satisfaction was duly recorded in the office of the regis-

ter of deeds on the 6th day of January, 1885, at 2 o’clock p. m., in

Book “ N,” at page 273.

8. That said note for $450.00 and the coupon notes thereto attached,

each for $36.00, and nove of them has ever been paid, except that

three of said coupon notes for $36.00 each were paid at maturity,

and that the plaintiff is still the owner of said notes and mortgage,

and that said mortgage has never been satisfied, but remains of record

as aforesaid ; that there is now due and owing the plaintiff on said

notes and mortgage the sum of $522.00, with interest, at the rate of

12 per cent. per annum, on the sum of $486.00 from the Ist day of

December, 1886, and interest, at the rate of 12 per cent. per annum,

on the sum of $36.00 thereof from the Ist day of December, 1885.

9. That said mortgage was given by said Charley Anderson to

the said H. EK. Fletcher in the regular course of business and in good

faith accepted by said H. E. Fletcher as security for the payment

of the notes as aforesaid; that the assignment of said notes and

the mortgage by the said H. E. Fletcher to the plaintiff was in the

regular course of business, and plaintiff in good faith paid a valu-

able consideration for said notes and mortgage.

10. That on the 8th day of May, 1882, said Charley Anderson, by

an instrument in writing known as a warranty deed, dated on that

day, conveyed said land to one R. N. Ink, which deed was

14 recorded in the office of the register of deeds of said county

on the 10th day of May, 1882, at 10 o'clock a. m., in Book

“G” of Deeds, at page 15.

11. That on the 7th day of April, 1883, by an instrument in

writing known as a warranty deed, the said R. N. Ink and Alta M.

Ink, his wife, conveyed said premises to J.S. Ink, and that said deed

was duly recorded in the office of the register of deeds of said county

on the 9th day of April, 1883, at 10 o’clock a. m., in Book “G” of

Deeds, at page 291.

12. That on the 6th day of January, 1885, by an instrument in

writing known as a warranty deed, the said J. 8. Ink and Della C.

Ink, his wife, conveyed said premises to the defendant Albert Bla-

dow, and that said deed was duly recorded in the office of the

register of deeds of said county on the 6th day of January, 1885, at

3 o'clock p. m., in Book “ K” of Deeds, at page 55, and the said

Albert Bladow at once entered into possession of said premises under

said deed, and has ever since remained and still is in possession

thereof.

13. That on the 14th dey of March, 1882, after the final proof of

said Charley Anderson upon said lands had been made and passed

upon by the register and receiver of said land office, and after the

record thereof had been transmitted to the General Land Office, at

Washington, D. C., the Commissioner of the General Land Office,

2—399

10 GUARANTY SAVINGS BANK Vs. ALBERT BLADOW.

by letter “C” of March 14, 1882, held said entry of Charley Ander-

son upon said land, and directed the register and receiver of said

land office to hold said entry for cancellation upon the ground that

the testimony in said final proof of said Anderson for said tract of

land was evasive and failed’to show six months’ residence.

14. That thereafter, to wit, on the 22nd day of January, 1886, the

defendant Albert Bladow filed in the land office at Fargo, in the

then Territory of Dakota, his application and affidavit to contest the

eutry of said Charley Anderson upon said lauds on the grounds

that the proof furnished by said Anderson upon said entry was

15 false in fact, and that said entry was fraudulent, and iv said

affidavit set forth that said Anderson had never established

his residence upon said land, and had never resided thereon, and

never made the same his home, as provided by the homestead laws

of the United States.

15. That thereafter the Commissioner of the General Land Office,

at Washington, D. C., upon such application and affidavit ordered

and directed that a hearing be had before the register and receiver

of the land office at Fargo between the defendant Albert Bladow

and said Charley Anderson as to the truth of the allegations in

said Bladow’s affidavit and application for contest; that due notice

of said hearing was given to said Charley Anderson by publishing

the same in accordance with the order of the register of said Fargo

land office, made upon an affidavit that personal service could not

be made upon said Anderson; that at such hearing the said Albert

Bladow appeared with his witnesses and gave evidence tending to

establish as true the allegations of his said affidavit of contest, no

appearance being made or testimony offered by said Anderson;

that thereafter, and after the said hearing, and after the evidence

taken thereupon had been transmitted to the Commissioner of the

General Land Office, at Washington, D. C., and on the 14th day of

November, 1887, said Commissioner ordered and directed that the

entry of said Charley Anderson of and upon said lands be can-

celled; and thereafter, in due and usual course of business, the reg-

ister and receiver of the land office at Fargo duly cancelled said

entry of record and notified the defendant Albert Bladow thereof.

16. That after the final decision of the said Commissioner of the

General Land Office upon said contest and after the cancellation of

the entry of said Anderson the defendant Albert Bladow duly

made his homestead entry of and upon said lands, and thereafter,

to wit, on April 26th, 1893, duly submitted his final proof therefor,

which was passed upon by the register and receiver of the

16 land office and on said date placed of record and final receipt

and certificate in due form issued to said Albert Bladow by

the register and receiver of said !and office at Fargo; and _ there-

after, on the 6th day of July, 1898, the Government of the United

States issued upon said final receipt and certificate to said Albert

Bladow a patent for said lands, conveying said premises to tlie de-

fendant Albert Bladow, which patent was recorded in the office of

the register of deeds of said county ou the 25th day of Oetober, 1893,

in Book “P” of Deeds, at page 234.

+

GUARANTY SAVINGS BANK VS. ALBERT BLADOW. 11

17. That in the patent from the Government of the United States

to the said Albert Bladow the premises herein involved were and

are described as follows: Lots one and two of section nineteen,

township one hundred and thirty-one north, of range forty-nine |

west, and north half of the northeast quarter of section twenty-four,

township one hundred thirty-one north, of range 50 west; that

said lands described are the same lands that are involved in this

action and herein first described.

18. That the plaintiff has never been in the possession of said

lands or any portion thereof.

19. That no notice of cancellation of said homestead entry and

cash certificate of Charley Anderson was ever given to said H. E.

Fletcher or the plaintiff herein, and such cancellation was made

without actual notice of the decision of the Commissioner of the

General Land Office to either said H. E. Fletcher or to the plaintiff,

and neither said H. E. Fletcher nor the plaintiff herein was served

with any notice of the contest of Albert Bladow involving said land,

nor was the plaintiff or said H. E. Fletcher made any party de-

fendant in said contest of Albert Bladow.

20. That the defendant Albert Bladow, in reliance upon his title

and ownership of said lands as hereinbefore set forth, has since con-

tinued in possession thereof and made valuable improvements upon

said premises by breaking and cultivating said lands and by erect-

ing thereon buildings and permanent improvements of the value at

least $800.00.

17 21. That the $14.00 fees and commissions paid by said

Charley Anderson to the receiver of the Fargo land office on

his homestead entry No. 7471 and the $179.11 fees and commis-

sions paid by said Charley Anderson to the receiver of said land

office on his cash entry No. 2791 has never been repaid and is still

retained by the Government of the United States on his homestead

and cash entries.

22. That upon the testimony submitted to the land department

in the coutest case of Albert Bladow against Charley Anderson, as

heretofore set forth, the register and receiver of the Fargo land

office and the Commissioner of the General Land Office found and

decided asa conclusion of fact that the said Anderson had never

resided upon said lands as required by law, and that his said entry

was fraudulent, and said entry was therefore ordered and directed

to be cancelled and was so cancelled upon such testimony as a

fraudulent entry; that no appeal was ever taken by said Ander-

son from said decision.

23. That after the cancellation of the said entries of Charley

Anderson, to wit, on June 15th, 1891, the plaintiff filed in the

United States land office at Fargo proof of its interests as assignee

of mortgagee in the lands herein involved, and moved that the

patent be issued under the provisions of section 7 of the act of

March 3rd, 1891, which motion was denied by the Commissioner of

the General Land Office on tire 13th day of August, 1891; that from

said decision of the Commissioner of the General Land Office the

plaintiff in this action, by its attorney, Fred B. Morrill, prosecuted

12 GUARANTY SAVINGS BANK VS. ALBERT BLADOW.

an appeal to the Secretary of the Interior, who, on the 15th day of

July, 1892, rendered his decision thereon denying said motion.

24. That after the cancellation of the said entries of Charley An-

derson aud prior to the making of the final proof for said land by

the defendant Albert Bladow, to wit, in the years 1887, 1888, and

1889, the proper authorities in that behalf levied and assessed or at-

tempted to levy and assess taxes against said land iu the total sum

of $33.79, which the defendant failed and neglected to pay,

18 which amount the plaintiff herein paid to the treasurer of

said Richland county on the 14th day of August, 1890, and

received tax receipts therefor.

25. That the foregoing, together with the pleadings herein, certi-

fied copies of the patent from the Government of the United States

to the defendant Albert Bladow mortgage of Charley Anderson

to H. E. Fletcher as herein set forth, deed from J.S. Ink to de-

fendant Albert Bladow, aud such other records, certified copies of

record, decision of the Commissioner of the General Land Office and

Secretary of the Interior, and other testimony, as submitted herein,

and the whole thereof, are hereby introduced and presented to the

court as evidence and testimony in this case.

Dated this 30th day of March, A. D. 1895.

FRED B. MORRILL,

Attorney for Plaintiff.

W. E. PURCELL &

CHAS. E. WOLFE,

Attorneys for Defendant Albert Bladow.

Thereupon the said district court made and entered the following

judgment :

On reading and filing the findings of fact and conclusions of law

as made and found in the above-eutitled action by the judge of this

court, dated on the 17th day of April, 1895, and on the motion of

W. E. Purcell and Charles E. Wolfe, attorneys for the defendant

Albert Bladow, it is—

Ordered, adjudged, and decreed that the defendant Albert Bladow

is the owner in fee-simple of that certain real estate situated’in the

State of North Dakota and county of Richland, described as follows:

Lots one and two, in section nineteen, in township ove hundred

thirty-one north, of range forty-nine west, and the north half

19 of the northeast quarter of section twenty-four, township one

hundred thirty-one north, of range fifty west.

It is further ordered, adjudged, and decreed that the certain

mortgage made and executed by the defendant Charley Anderson

on the 20th day of July, 1881, whereby said lands were mortgaged

to one H. E. Fletcher, to secure the payment of $450.00, which mort-

gage was recorded in the office of the register of deeds of Richland

county, North Dakota, on the 25th day of July, 1881, at 11 o’clock

a. m., in Book “E” of Mortgages, on page 433, which mortgage is

now owned by the plaintiff in this action, is no lien upon and con-

veys no title to nor interest in the said premises nor any part thereof.

It is further ordered, adjudged, and decreed that said mortgage,

GUARANTY SAVINGS BANK Vs, ALBERT BLADOW. 13

in so far as it is an apparent cloud upon the title of said defendant,

Albert Bladow, to the said lands or any part thereof be, and it is

hereby, cancelled.

It is further ordered, adjudged, and decreed that a copy of this

decree may be recorded iu the office of the register of deeds of said

Richland county, and when so recorded the same shall be notice to

all the world of the cancellation of said mortgage and the removal

of the cloud arising therefrom from the title of the said Albert Bla-

dow to said lands and the whole thereof.

It is further ordered, adjudged, and decreed that the defendant

Albert Bladow have and recover of the plaintiff, The Guaranty

Savings Bank, his costs and disbursemeuts of this action, to be here-

after taxed and herein inserted by the clerk of this court.

Witness the Honorable W.S. Lauder, judge of the district court

of the fourth judicial district of the said North Dakota, and my hand

and the seal of this court, this 15th day of July, 1895, at Wahpeton,

Richland couuty, North Dakota.

[SEAL. ] C. A. McKEAN,

Clerk of the District Court, Richland County, N. D.

Thereupon the Guaranty savings bank perfected an appeal from

said judgment to the supreme court of the State of North

20 Dakota, relying, on said appeal, on the following—

Assignments of Error.

Ist. That the cancellation of Anderson’s entry by the Commis-

Sioner of the General Land Office on the ex parte contest initiated

by Bladow without notice to the mortgagee was contrary to law and

void.

2nd. That Anderson’s entry was confirmed and binding, and

patent thereunder and should have been issued under section 7 of

the act of March 3, 1891, entitled “An act for the repeal of the tim-

ber-culture law and for other purposes.”

3rd. That the defendant Bladow, having purchased, subject to the

mortgage, the title acquired by Andersou before the cancellation of

Anderson’s entry, is estopped from setting up any defense to the

validity of the mortgage.

Thereupon the supreme court of the State of North Dakota ren-

dered the following—

Opinion.

Cor.iss, J. :

As originally instituted, this action had for its sole object the

foreclosure of a mortgage, but on the trial it developed into a con-

troversy over the legality of the cancellation by the Land Depart-

ment of a homestead entry. The cause has been argued in this

court on the theory that the plaintiff was in position to challenge

the validity of such cancellation and to secure the benefits of the

patent subsequently issued by the Government to a third person,

based upon a new entry. The original entry was made by one

ey

14 GUARANTY SAVINGS BANK VS. ALBERT BLADOW.

Anderson in January, 1881. In July, 1881, he executed a mortgage

upon his interest in the land to secure the payment of $450. This

mortgage was in June, 1882, assigned to plaintiff. It is to foreclose

this mortgage that this action was commenced. Subsequently to

the execution thereof the land was conveyed to the defendant Bla-

dow. Thereafter such proceedings were had before the Land Depart-

ment that on November 14, 1887, the Commissioner thereof ordered

that the entry made by Anderson be cancelled. I[n these pro-

21 ceedings the commissioner found as a fact that Anderson

had never resided npon the land, as required by law, but

that his entry was fraudulent, and the entry was cancelled on that

ground. Neither the original mortgagee nor the plaintiff was a

party to these proceedings or had any notice of them. So far as

they were concerned, such proceedings were ez parte. Notice of the

hearing was, however, served on Anderson by publication in accord-

auce with the rules and practice of the Land Department. It is

undisputed that the mortgagee loaned his money and took his

mortgage in good faith and for value, and that he had no actual

knowledge of the fact that Abderson’s entry was fraudulent. After

the original entry was cancelled defendant Bladow made a home-

stead entry upon the same land and subsequently obtained a patent

therefor, based upon such entry. The decree iu this case sustains

this patent and adjudges that the mortgage is therefore not a lien

upon the land, but is a cloud thereon, and should accordingly be

cancelled. From this decree the plaiutiff appeals.

In deciding this case we will adopt a theory more favorable to

the plaintiff than the record will justify. We will assume that it

has foreclosed its mortgage and has secured the rights of the mort-

gagor in the land. The only feature which distinguishes this case

from Parsons vs. Venzke, 4 N. D. Rep., 452; 61 N. W. Rep., 1036, is

the fact that the holder of the mortgage was not a party to the pro-

ceedings in the Land Department which culminated in the cancel-

lation of Anderson’s entry. This fact, does not, however, render the

cancellation a nullity as to the mortgagee. The Land Department

has, until a patent has been issued, complete control of the question

whether it will cancel an entry. Its power is not dependent on juris-

diction over the person of any one, as the authority of a court is. By

the issue of a certificate it does not lose control over the land. Such

certificate is in effect no more than a statement that prima

facie the person to whom it is issued appears to be en-

22 titled to a patent. Whether subsequent investigation will

lead to a different conclusion is left unsettled, and whoever

deals with the holder of such certificate is chargeable with knowl-

edge that the proceedings instituted to secure the legal title to the

land from the Government are in fieri, and that the Land Department

may at any time revoke the certificate, thus destroying the entry-

man’s prima facie right to the patent. What procedure it will

adopt, what persons it will notify, or whether it will proceed on

notice at all or not_are matters within the discretion of the depart-

ment, so far as the mere matter of power is concerned, Congress not

having prescribed any practice in such cases. No matter how arbi-

4

GUARANTY SAVINGS BANK V8, ALBERT BLADOW. 15

trary the Land Department may act, its cancellation is not a mere

nullity; but such arbitrary action will, however, entitle the entry-

man to a hearing in court, and on this hearing he will be allowed

to show that, as a matter of fact, his entry was not fraudulent; but

no such showing was made in this case. Indeed, it is not claimed

that the entry was not in fact fraudulent. The Land Departinent

has in such case, it is true, in the exercise of its undoubted power,

destroyed his prima facis evidence of right to a patent, but because

it has acted in an arbitrary manner, has denied him a hearing,

the law will permit the entryman to prove in court the facts show-

ing his entry to be valid, because the law regards the rights of an

entryman who has in good faith complied with the statute as

property rights, and will give him an opportunity to defend such

- rights, either in the Land Department or, if he is there denied a

chance to protect himself, in the proper judieial tribunals. The only

effect of the doctrine that an ez parte cancellation of an entry is not

a mere nullity is to place the burden of proof upon the entryman

or those who claim under him; but it cannot be disputed that the

Land Department might, despite the fact that le holds a certificate,

require the entryman to furnish additional proof of his good faith

and his compliance with the requirements of law on proceedings in

the Land Department instituted for the purpose of anedling

23 hisentry. ‘The Land Department may, notwithstanding the

fact that it has issued a final certificate, compel the entryman

or any one claiming under him to assume the burden of proof on

penalty of having the entry cancelled if additional proof is not pro-

duced. The utmost scope of the effect of the doctrine than an ex

parte cancellation is valid is to cast upon the entryman in the court

the very burden of proof which may be imposed unon him by the

department itself. The contention against the sounduess of this

doctrine must be that he has a vested right to use the certificate as

prima facie evidence of his right to a patent. here is nothing in

the acts of Congress to warrant such a view; and to assert that it is

sound on general principles is to assume the very point in contro-

versy. The utmost which it can be said that the Government has

done in issuing the certificate to him is to give him an instrument

which will prima facie show that he is entitled to a patent so long

as this instrument remains unannulled, but the same power which

issued it is vested by Congress with full control over it. and may re-

voke it at any time, and the destruction of it carries along with it

the necessary consequence that it can no longer be presented in

evidence to any tribunal as the declaration of the Government that

the person named in it has complied with the law and is entitled to

a patent; but after a person has been accepted by the Government

as an entryman it cannot escape the issuance of a patent to hin if

his entry was in fact legal, and this fact he may prove in the proper

judicial tribunal if he is denied a hearing in the Land Department.

In this way his property rights are fully protected. As he is com-

pelled to pursue the legal title inthe hands of one who has succeeded

to the rights of the Government, he is of necessity obliged to make

out against such person a legal right to demand the patent from the

16 GUARANTY SAVINGS BANK VS. ALBERT BLADOW.

Government. This he must do by evidence showing that his entry

was in fact legal. He cannot use the cancelled certificate for that

purpose, for to insist upon his right to use it is to assume

24 the legality of the entry—the very question to be established.

He could not, as a matter of fact, use it as prima facie evi-

dence in the Land Department before cancellation on the trial of the

issue whether his entry was legal. How, then, can he claim that

he has such a right to use it as evidence in a court after cancella-

tion as constitutes a vested property right? It is obvious that if

the mere fact that the cancellation of an entry was ex parte gives

the entryman an absolute right to secure the patent from a third

person to whom it has been issued, then itis of positive benefit to

a fraudulent entryman to be denied a hearing in the Land Depart-

ment. The denial of a hearing, although upon such hearing he

should be defeated, places him in an impregnable position in his

contest for the title. The very most which can possibly be claimed

is that the origina! entryman should not be required to make outa

prima facie case by evidence, but it should be permitted to rely

upon the cancelled certificate as creating a presumption in his

favor. This position, we have seen, is not tenable. The reasoning

of this court in the case of Parsons vs. Venzke leads logically to the

conclusion we have reached. The case of Mortgage Co. vs. Hopper,

56 Fed., 74, affirmed 120. C. A., 293; 64 Fed., 558, is directly in

point. See also U.S. vs. Steenersou, 1 C. C. A., 552; 50 Fed., 507.

We are not unmindful of that fact that, in view of delays in the

issuance of patents and the rule of law that until a patent has been

issued the courts have no jurisdiction to redress the wrong done

the original entryman or his grantee or mortgagee by an ex parte

cancellation, injustice may result from the doctrine that the Land

Department may thus impose upon such persons the burden of

proving the original entry to have been legal. The earliest period

at which they adduce proof to sustain the eutry may be so remote

from the time when such entry was made that no evidence can be

obtained by them to support what was in fact a perfectly valid

entry, but cases presenting these extreme features will not fre-

25 quently arise, and those who find themselves in this predica-

ment are always somewhat in fault in not discovering the

fact of the cancellation and making an effort to be heard in the

Land Department to have the original entry reinstated. Moreover,

in such cases the courts would incline to consider slight evidence as

sufficient prima facie proof that the original entry was in fact valid,

and compel the holder of the patent to sustain by evidence the find-

ing by the department that it was illegal. ‘No hardship could result

to the holder of the patent from such a rule; for the fact that the

cancellation of the original entry was ex parte will appear from the

records of the Land Office, and he is therefore chargeable with

knowledge that the question of fact whether such entry was legal is

still open to investigation in the courts, and that from the very

nature of the case the original entryman, or those claiming under

him, should not be held after the lapse of a considerable period of

time to a high decree of proof to establish a prima facie right.

——EEO

GUARANTY SAVINGS BANK VS. ALBERT BLADOW. 17

It is urged that inasmuch as defendant Bladow, who made the

second entry and subsequently secured the patent, was also the per-

son who succeeded to Anderson’s interest in the land, he is estopped

from claiming that the mortgage is not a lien on the land; but

Bladow did not assume the mortgage nor did the deed to him even

state that he took the land subject to the mortgage. There is no

element of estoppel in the case. Bladow is not questioning the legal

sufficiency of the mortgage as a contract, nor does he assert that it

is not a lien on whatever interest Anderson had in the land. He

is merely claiming title from a different source. When he pur-

chased the land from Anderson’s grantees he entered into no im-

plied agreement that in case Anderson’s entry was fraudulent and

was finally overthrown he would not purchase the land from the

Government without taking care of the mortgage debt. He did not

borrow the money or assume the mortgage, nor are we able to dis-

cover from this record that he is even under any moral obli-

26 gation to see that it is paid. The amount of such mortgage

does not appear to have been deducted from the purchase

price when he bought from Anderson’s grantee; and if this were

the fact he would be under no legal or moral obligation to pay it

under the facts of this case, for it appears that every dollar he paid

for Anderson’s title was money thrown away. The deed he obtained

gave him no title, nor did it place him in a position to contest the

| legality cf Anderson’s entry different from that which he occupied

| before it was delivered to him. It was of no advantage to him

whatever.

The judgment of the district court is affirmed. All concur.

(69 N. W. Rep., 41.)

~ ——

Thereupon, on the 10th day of November, 1896, the supreme court

of the State of North Dakota transmitted to the district court of Rich-

land county the following—

Remittitur.

File No. 399.

Strate oF Nortw Dakota, ss.

In Supreme Court, :

v8.

GuaRANTY Savines Bank, Plaintiff and soni

AvBEert Biapow, Defendant and Respondent.

Appeal from the district court of Richland county.

This action coming on to be heard at the April, A. D. 1896, term

of this court, at the supreme court room, in the city of Bismarck,

State of North Dakota—present, Alfred Wallin, chief justice; Guy

C. H. Corliss and J. M. Bartholomew, associate justices—and the

appeal ‘having been argued by Fred B. Morrill, for the appellant,

3—399

18 GUARANTY SAVINGS BANK VS. ALBERT BLADOW.

-- and by W. E. Purcell, for the respondent, and the court having

27 advised thereon, it is now here considered, ordered, and ad-

. judged that the judgment of the district court within and

for-Richland county appealed from herein be, and the same is

hereby, affirmed.

And it is further ordered that this cause be, and it is hereby, re-

manded to the district court for further proceedings according to

law and the judgment cf this court.

And it is further considered and adjudged that respondent have

and recover of the appellant costs and disbursements on this appeal

expended, to be taxed and allowed in the district court.

ated November 10th, 1896.

By the court:

ALFRED WALLIN,

Chief Justice.

Attest: R. D. HOSKINS, Clerk.

[Seal of the Supreme Court of North Dakota. }

Thereupon, on the 12th day of May, 1898, the district court of

Richland county eutered the following—

Judgment.

The above-entitled action having been duly heard and determined

by the district court and a judgment entered in favor of the defend-

ant Albert Bladow and against The Guaranty Savings Bank, plain-

tiff, for the costs and disbursements of said action and other relief

on the 15th day of July, 1895, which judgment appears of record

in this court, and the plaintiff having taken an appeal to the

supreme court of the State of North Dakota from said judgment,

and the supreme court having, on said appeal, affirmed said judg-

ment and ordered the entry of judgment for the costs of said appeal

against the plaintiff, Guaranty Savings Bank, aud in favor of said

Albert Bladow, as appears by the remittitur of the supreme court

filed herein:

28 Now, therefore, on motion of Messrs. W. E. Purcell and

Charles E. Wolfe and in order to conform with the proceed-

ings heretofore had in said case, it — hereby adjudged and decreed

that the judgment heretofore entered in said cause on the 15th day

of July, 1895, in favor of said Albert Bladow and against the Guar-

anty Savings Bank be, and the same is hereby, in all things affirmed ;

and it is further adjudged and decreed that said Albert Bladow, de-

fendant, have and recover of the Guaranty Savings Bank the sum

of $36.00, costs and disbursements on the appeal in said case as

heretofore taxed and allowed.

Witness the Honorable W.S. Lauder, judge of the fourth judicial

district of the State of North Dakota, and the seal of said court, at

Walipeton, Richland county, this 12th day of May, 1898.

[SEAL.] C. A. McKEAN,

Clerk of the District Court, Richland County, N. Dak.

GUARANTY SAVINGS BANK VS. ALBERT BLADOW. 19

Thereupon the plaintiff inn error herein applied to the Supreme

Court of the United States for a writ of error to review the decision

of the supreme court of the State of North Dakota in said action ;

which writ of error was granted, and the plaintiff in error filed the

following—

Assignments of Error.

Comes now The Guaranty Savings Bank, plaintiff in error, by

S. B. Pinney, its attorney, and says that in the record and proceed-

ings aforesaid there is manifest error, in this, to wit:

First. That the supreme court of the State of North Dakota erred

in holding and deciding that the cancellation of Charley Ander-

son’s entry by the Commissioner of the General Land Office on the

ex parte contest initiated by Albert Bladow without notice to the

Guaranty Savings Bank or its assignor, H. E. Fletcher, was valid

as to the plaintiff in error, and that said Commissioner had under

the laws of Congress power to cancel said entry and and allow

Bladow’s application to enter without notice to the holder of

29 the mortgage.

Second. That the action of the Commissioner of the General

Land Office in cancelling Anderson’s entry and allowing Bladow’s

entry without notice to the owner of the mortgage was a nullity as

to said mortgage, and the said mortgage in question having been

given and received in good faith for a valuable consideration prior

to March Ist, 1888, and after the final entry of Charley Anderson

under the provisions of section 7 of the act of Congress approved

March 8rd, 1891, entitled “An act for the repeal of the timber-culture

law and for other purposes,” the plaintiff in error was entitled to a

confirmation and patent of the entry of Charley Anderson, and the

supreme court of North Dakota erred in declining to so hold and

decide.

And whereas by the law of the land the said judgment ought to

have been for the said plaintiff in error, Guaranty Savings Bank,

and against said defendants in error, Charley Anderson, Albert

Bladow, and Franklin Hall, and the said Guaranty Savings Bank,

plaintiff in error, prays the judgment aforesaid may be reversed,

annulled, and altogether held for nothing, and that it may be re-

stored to all things which he hath lost by occasion of the said judg-

ment.

S. B. PINNEY,

Attorney for Plaintiff in Error.

[Endorsed :] Case No. 16,984. Supreme Court U. S., October

term, 1898. Term No., 399. Guaranty Savings Bank, pl’ff in error,

vs. Albert Bladow. Agreed record. Filed October 25, 1898.