incorporated on the first of July, 1867, under control; that the change of name was made On the 24th of October, 1867, the steamtug Princeton was going up the harbor of New York with a tow of fourteen canal boats loaded with coal. When near the mouth of the Hudson River she met the English steamship Penn[118] sylvania, owned by the National Steamship Company, and a collision took place between the canal boats and the steamship, by which three of the boats were sunk, and a man by the name of Wilson W. Gray was killed. The widow of Gray took out letters of administration upon his estate and then brought an action in the Superior Court of the City of New York, under a statute of the State, for damages caused by the loss of her husband, against the National Steam Navigation Company, evidently supposing that this company continued the owner of the steamship as it formerly had been. In May, 1868, she obtained a verdict, and in June following judgment was entered thereon for $3,289.05. The National Steamship Company was formed for the purpose of buying the property of the Navigation Company and conducting the same business. The consideration for the purchase was stock of the new company to such of the old stockholders as would consent to take it; and money to the dissenting stockholders. Provision was made to raise the money necessary to fill up the capital stock to the required sum, and the sale was subject to the debts of the old company on August 16, 1867. The officers of the old company became the officers of the new company. The widow Gray issued execution on her judgment to the sheriff of the county of New York, which was returned unsatisfied. In December, 1869, she assigned the judgment to one Asa F. Miller, and in January, 1870, he commenced a suit in the Supreme Court of New York against the National Steamship Company, setting forth in his complaint the judgment of the superior court, the return of the execution unsatisfied, the incorporation of the National Steam Navigation Company, and that a short time before the commencement of the action it was engaged in the shipping business between New York and Liverpool, employing steamers, and having a general agency in New York; that at the time of the accruing of the cause of action it was thus engaged in business; that about the time the judgment was obtained and the execution issued the company assumed and became known by the name of the National [119] Steamship Company; that the sheriff was thereby disabled from levying on the property which up to that time had stood in the name of the Navigation Company; that the change of name was to cure a technical defect; that the Steamship Company was incorporated under a statute limiting the liability of the stockholders, and to that company the Navigation Company had handed over its ships and all its other property to a sufficient amount to pay the judgment; that such property remained under the same The Steamship Company answered, admitting the judgment of the plaintiff, the return of exe cution issued upon it unsatisfied, and the orga nization of the Navigation Company, allegin its own distinct incorporation; admitting th sale, transfer and delivery of the steamship and business of the old company to the new company, August 16, 1867, the conduct of it shipping business and its employment of stean ers by the old company, up to such transfer an sale; and alleging that the old company had n property in the State, with a general denial other allegations. The case was heard upo the pleadings and proofs, and at a special ter of the court on December 12, 1870, judgme was rendered dismissing the complaint. O May 7, 1875, at a general term of the cou this judgment was affirmed. A year after i affirmance an order was entered at a speci term by consent of parties discontinuing th suit Before this was done Asa F. Miller, th plaintiff therein, assigned the superior cou judgment to one Morrison, and in Februar 1877, Morrison assigned it back to the plainti who soon afterwards commenced the prese action in the Supreme Court of New York. C motion of defendants, it was removed to t Circuit Court of the United States, and the the plaintiff filed a bill in equity in place of complaint filed in the state court. This b set up the agreement between the two comp nies of August 16, 1867; alleged the identity the officers of the two companies; mention the recovery of the judgment of the plaint and the various assignments of that judgmen the unsatisfied execution issued thereon, t transfer of the ships and other property of old Navigation Company to the new Steamsh Company; alleged that the Navigation Co pany had not made a change of ownership the steamers by sufficient bills of sale, accordi to British law; mentioned the winding up the Navigation Company, and averred that t new company held the property of the company in fraud of the right of the plaintiff have his judgment satisfied out of it, and th the Navigation Company had no property embraced in the transfer to the Steamship Co pany out of which execution upon the judgme could be satisfied. The bill prayed for a ceiver of the property of the Navigation Co pany at the time of its assignment, for an counting by the defendant of such proper and that the receiver be directed to sell property and pay the debts of the plaintiff, a for general relief. The defendant, in its swer, admitted the agreement, the substan 1 Err., 0. of the officers of the two companies, | GEORGE W. FRASHER ET AL., Pliffs. in [102] recovered in the Superior Court, Sed execution issued thereon, and delivery of all the property of the Jariation Company to the defendant on August, 1967, for a full consideration; at that the defendant at that time became wall the property including the steam the City of New York, which was M. J. O'CONNOR. (See S. C., Reporter's ed., 102–116.) Public lands-state grants, adjustment of-ju *1. In adjusting Congressional grants of lands to 2. Surveys under the 8th section of the Act of 3. Lists of lands certified to the State by the Com- Arqued Apr. 10, 1885. Decided May 4, 1885. ERROR to the Supreme Court of the State of California. The history and facts of the case appear in the opinion of the court. Messrs. Geo. F. Edmunds, William J. Johnston and James K. Redington, for plaintiffs in error. Mr. Edward R. Taylor, for defendant in error. napable, under its articles of of doing any except so fa as essary to wind up its affairs. It for purposes of liquidation. It tore own and run a steamship than and manage any other property. ng in the transfer of the property company to the new of which the way complain. It took el me the collision occurred which caused the plaintiff's husband. The This is an action for the possession of a parmecid company do not com-cel of land in Los Angeles County, California. at transfer; and it does not appear The plaintiff, the defendant in error here, traces omes from any creditors then title to the premises by a patent of the State, isfern. The debts of the old sued to Robert Thompson on the 21st day of und by the new; and there is April, 1874, and certain mesne conveyances or sense in attempting to fasten from the patentee. The title of the State was **** ~mpany a judgment for dam- derived from selections of land in lieu of seccly against the old. If the tions sixteen and thirty-six granted for school ke, commenced an action purposes by the Act of Congress of March 3, g company, it is a fault of 1853. *a* complain. At least the new Largeable as though it had it Mr. Justice Field delivered the opinion of the court: hed its day in court. The tiny never made any pretense afer its affairs were closed up, ente pontiff nor her counsel were the action of the representatives 2y. The case is too plain for LX. Losey, Clerk, Sup. Court, U.S. The defendants below, the plaintiffs in error [103] [104] [105] being entitled as such preemptors to patents The State was embarrassed by this delay i the public surveys, not only in the use of th sixteenth and thirty-sixth sections, and, whe they were occupied by settlers, in the selection of lands in lieu of them, but also in the sele tion of lands granted by other Acts of Congres than that of March 3, 1853. By the eighth se tion of the general preemption law of Septen ber 4, 1841, 500,000 acres of land were grante to each new State subsequently admitted int the Union, and of course to California, for pu poses of internal improvement, the selection the lands to be made from any public lan within her limits, except such as was or migh be reserved from sale by a law of Congress the proclamation of the President, and in su manner as her Legislature should direct, a located in parcels conformably to section divisions and subdivisions of not less than 3 acres in any one location. The Act of Congress of March 3, 1853, "to Provide for the Survey of the Public Lands in California, the Granting of Preemption Rights therein, and for other Purposes," placed the public lands in that State, with certain specified exceptions, subject to the general preemption law of September 4, 1841. 10 Stat. at L.,246, §6. Among the excepted lands were sections sixteen and thirty-six of each township, which were declared to be thereby granted to the State for the purposes of public schools, and lands In May, 1852, in advance of any surveys claimed under any foreign grant or title. The the United States, the State passed an Act f Act also declared in its 7th section that where the sale of these 500,000 acres. It authoriz a settlement by the erection of a dwelling-house, the Governor to issue land warrants for not le or the cultivation of any portion of the land, thar 160 acres and not more than 320 acres should be made on the sixteenth and thirty-one warrant, to the full amount of the gra sixth sections before they should be surveyed, or where such sections should be reserved for public uses, or "taken by private claims," other fands should be selected in lieu thereof by the proper authorities of the State. The lands in controversy were within the boundaries of a tract claimed under a confirmed Mexican grant, known as the Rancho Sausal Redondo. As sections sixteen and thirty-six of townships were covered by the grant, a case was presented within the 7th section of the Act of Congress, in which the State was authorized to select other lands in lieu of them. the treasurer to sell them at $2 an acre, a the purchasers and their assigns to locate the on behalf of the State on any vacant and un propriated land belonging to the United Sta subject to such location. Under these laws selections were made agents of the State, or purchasers of warra who were authorized to locate the same. Simi legislation was had and similar proceedin were authorized with respect to other lar granted by Acts of Congress to the Sta When, however, selections thus made w brought to the attention of the Land Dep ment at Washington, they were not recogni as conferring any right to the parties claim under them. Selections made in advance of The Legislature of California, by an Act passed April 27, 1863, provided for the sale of certain lands granted to the State by Congress, and, among others, of the sixteenth and thirty-public surveys were held to be wholly inva sixth sections in the several townships, or of lands which might be selected in lieu thereof. It prescribed the proceedings to be taken for the purchase of the lands, and required each state locating agent to keep a record of applications to purchase made to him, and when they amounted to 320 or more acres, to apply on behalf of the State to the register of the United States Land-Office of the district for such lands, in part satisfaction of the grant under which they were claimed, and to obtain his acceptance of the selections thus made. Various other proceedings were required by the Act to secure a proper presentation to the Land Department of the United States of the lands thus purchased of the State; that is, of lands thus selected in satisfaction of the grant to her. This ruling of the department caused great c fusion and embarrassment in the State. Ti thought to be unquestionable were found to worthless, and interests of great magnit which had grown up upon their supposed lidity were endangered. To relieve against embarrassments arising from this cause the of Congress of July 23, 1866, "to quiet 1 titles in California," was passed. 14 Stat L., 218. The 1st section of this Act decl that in all cases where the State of Califor had previously made selections of any por of the public domain in part satisfaction grant made to the State by Act of Congr and had disposed of the same to purchaser good faith under her laws, the lands so sele should be and were thereby confirmed to State. Surveys of the public lands in California were greatly delayed after the passage of the From this confirmation were excepted s Act of 1853, and as late as 1866 many town- tions of lands to which an adverse preemp ships had not been surveyed. For want of these or homestead or other right had at the dat surveys, it was impossible to ascertain the pre- the passage of the Act been acquired by a cise locality, in each township, of the sixteenth tler under the laws of the United States, an and thirty-sixth sections and, of course, except lands reserved for naval, military or In in a few instances such as where the whole purposes, and of mineral land or of township was embraced in a private claim un- claimed under a valid Mexican or Spanish g der a Mexican or Spanish grant, it could not be The 2d section provided that where the s known whether there had been any such set-tions had been made of land which had tlement on those sections as would authorize surveyed by authority of the United Stat the State to select other lands in lieu thereof. should be the duty of the authorities of here it had not already been done, to | " dsection provided that where the selecad been made of land which had not syed by authority of the United be selections had been surveyed by of and under laws of the State, and d to purchasers in good faith, such sold, from the date of the passage A when marked off and designated in have the same force and effect as the an rights of a settler on unsurveyed from waste and injury, and in improving it, for seen, selections made pursuant to But, inasmuch as the confirmee had the possession and use of the whole tract, from which his quantity was to be taken, until it was segre gated, he was not in haste to have the survey made of his claim. It was for his interest t postpone it; and therefore few confirmees of grants of quantity within exterior boundaries embracing a larger amount applied for surveys under that Act. Accordingly when the Act of July 23, 1866, "to Ouiet Land Titles in California" was passed, confirming selections previously made by the State, except those from lands held or claimed under a valid Mexican or Spanish grant, it provided in its 8th section as follows: That in all cases where a claim to land by virtue of a right or title derived from the Spanish or Mexican authorities has been finally confirmed and a survey and plat thereof shall not have been requested within ten months from the passage of this Act, as provided by sections six and seven of the Act of July 1, 1864, to Expedite the Settlement of Titles to Lands in California,' and in all cases where a like claim shall hereafter be finally confirmed, and a survey and plat thereof shall not be re [109] [104] [105] being entitled as such preemptors to patents The State was embarrassed by this delay in the public surveys, not only in the use of the sixteenth and thirty-sixth sections, and, when they were occupied by settlers, in the selections of lands in lieu of them, but also in the selection of lands granted by other Acts of Congress than that of March 3, 1853. By the eighth section of the general preemption law of September 4, 1841, 500,000 acres of land were granted to each new State subsequently admitted into the Union, and of course to California, for pur poses of internal improvement, the selection of the lands to be made from any public land within her limits, except such as was or might be reserved from sale by a law of Congress or the proclamation of the President, and in such manner as her Legislature should direct, and located in parcels conformably to sectional divisions and subdivisions of not less than 320 acres in any one location. The Act of Congress of March 3, 1853, "to Provide for the Survey of the Public Lands in California, the Granting of Preemption Rights therein, and for other Purposes," placed the public lands in that State, with certain specified exceptions, subject to the general preemption law of September 4, 1841. 10 Stat.at L.,246, 6. Among the excepted lands were sections sixteen and thirty-six of each township, which were declared to be thereby granted to the State for the purposes of public schools, and lands In May, 1852, in advance of any surveys by claimed under any foreign grant or title. The the United States, the State passed an Act for Act also declared in its 7th section that where the sale of these 500,000 acres. It authorized a settlement by the erection of a dwelling-house, the Governor to issue land warrants for not less or the cultivation of any portion of the land, thar 60 acres and not more than 320 acres in should be made on the sixteenth and thirty-one warrant, to the full amount of the grant, sixth sections before they should be surveyed, or where such sections should be reserved for public uses, or "taken by private claims," other lands should be selected in lieu thereof by the proper authorities of the State. The lands in controversy were within the boundaries of a tract claimed under a confirmed Mexican grant, known as the Rancho Sausal Redondo. As sections sixteen and thirty-six of townships were covered by the grant, a case was presented within the 7th section of the Act of Congress, in which the State was authorized to select other lands in lieu of them. The Legislature of California, by an Act passed April 27, 1863, provided for the sale of certain lands granted to the State by Congress, and, among others, of the sixteenth and thirtysixth sections in the several townships, or of lands which might be selected in lieu thereof. It prescribed the proceedings to be taken for the purchase of the lands, and required each state locating agent to keep a record of applications to purchase made to him, and when they amounted to 320 or more acres, to apply on behalf of the State to the register of the United States Land-Office of the district for such lands, in part satisfaction of the grant under which they were claimed, and to obtain his acceptance of the selections thus made. Various other proceedings were required by the Act to secure a proper presentation to the Land Department of the United States of the lands thus purchased of the State; that is, of lands thus selected in satisfaction of the grant to her. Surveys of the public lands in California were greatly delayed after the passage of the Act of 1853, and as late as 1866 many townships had not been surveyed. For want of these surveys, it was impossible to ascertain the precise locality, in each township, of the sixteenth and thirty-sixth sections and, of course, except in a few instances such as where the whole township was embraced in a private claim ynder a Mexican or Spanish grant, it could not be known whether there had been any such settlement on those sections as would authorize the State to select other lands in lieu thereof. the treasurer to sell them at $2 an acre, and the purchasers and their assigns to locate them on behalf of the State on any vacant and unap propriated land belonging to the United States subject to such location. Under these laws selections were made by agents of the State, or purchasers of warrants who were authorized to locate the same. Similar legislation was had and similar proceedings were authorized with respect to other lands granted by Acts of Congress to the State. When, however, selections thus made were brought to the attention of the Land Depart ment at Washington, they were not recognized as conferring any right to the parties claiming under them. Selections made in advance of the public surveys were held to be wholly invalid. This ruling of the department caused great con fusion and embarrassment in the State. Titles thought to be unquestionable were found to be worthless, and interests of great magnitude which had grown up upon their supposed validity were endangered. To relieve against the embarrassments arising from this cause the Act of Congress of July 23, 1866, "to quiet land titles in California,' was passed. 14 Stat. at L., 218. The 1st section of this Act declares that in all cases where the State of California had previously made selections of any portion of the public domain in part satisfaction of a grant made to the State by Act of Congress, and had disposed of the same to purchasers in good faith under her laws, the lands so selected should be and were thereby confirmed to the State. " From this confirmation were excepted selec tions of lands to which an adverse preemption. or homestead or other right had at the date of the passage of the Act been acquired by a set tler under the laws of the United States, and of lands reserved for naval, military or Indian purposes, and of mineral land or of land claimed under a valid Mexican or Spanish grant. The 2d section provided that where the selec tions had been made of land which had been surveyed by authority of the United States, it should be the duty of the authorities of the [100 ANN 115 |