Opinion of the Court.

reserved upon the location in 1864 as did not come within the ten-mile limit of the location of 1869. In other words, so far as it could, the Land Department set aside the location made in 1864, and approved and adopted that made in 1869. The land in controversy is within ten miles of the line of the McGregor Company's line, as located in 1869; but is west of the terminus of the McGregor Company's line, as located in 1864, and, therefore, not within the place or indemnity limits as determined by that location. It is also within the indemnity limits of the Sioux City Company's line. It appears from the recitals in the patent to the State, in 1873, that the land in controversy was selected as indemnity land for the Sioux City Company, and was patented to the State for the use and benefit of that company. With reference to the subsequent proceedings, it is sufficient to say that the Chicago, Milwaukee and St. Paul Railway Company succeeded, under legislation of the State of Iowa, to the rights of the McGregor Company, and constructed its road on nearly the line of 1869, and so as to intersect with the Sioux City road; that the litigation in the Circuit Court was between the Sioux City Company and the Milwaukee Company; that the outcome of that litigation was an adjudication of the rights of the Milwaukee Company to this land; and that, in pursuance of that litigation, the legal title thereto was conveyed by the State to the Milwaukee Company.

Now, the contention of plaintiff in error is, that after the approval by the Land Department of the map of definite location, filed in 1864, by the McGregor Company, the powers of that company in respect to a location were exhausted, and as authority therefor reference is made to the cases of Van Wyck v. Knevals, 106 U. S. 360, 866, and Walden v. Knevals, 114 U. S. 373. In the former of these cases this court said: "But when a route is adopted by the company and a map designating it is filed with the Secretary of the Interior, and accepted by that officer, the route is established; it is, in the language of the act, definitely fixed,' and cannot be the subject of future change, so as to affect the grant, except upon legislative consent." Congress never having assented to a change,

Opinion of the Court.

it is claimed that the only valid location was that in 1864, and that the land in controversy, not being coterminous with the line as then established, never came within the terms of the grant, but remained absolutely the property of the government, notwithstanding the error of the ministerial officers of the government in executing a patent to the State. It may be observed in reply, first, that in all the cases in which this question of the finality of a location has been before this court, the line as located conformed to and satisfied all the terms of the granting act, and the decision was that such a line, having been once definitely located, could not be changed; while in the case at bar, the line as located in 1864 did not satisfy the terms of the act, because it failed to intersect in O'Brien County with that of the Sioux City Company. Of course, until the line of the Sioux City Company was definitely located, it was impossible for the McGregor Company to determine where it could intersect with it. And it may be that the line of 1864 was justly considered as only a temporary and provisional one; so at least it seems to have been regarded by the Land Department, and we are not prepared to say that its decision was not correct.

But it is unnecessary to decide, and we do not rest the case upon this question. It is referred to as perhaps throwing such a shadow upon the record title of the Land Company, as to justify us in holding that a real and not fictitious Federal question was presented, for on other grounds the ruling of the Supreme Court of Iowa was unquestionably correct. In the first place, whether the location of the line in 1869 was of any validity or not, it was in fact accepted by the Land Department, and by the letters of March 15 and May 11, 1870, the land in controversy was, with others, withdrawn to satisfy the grant as determined by that location, and such a reservation by the Interior Department, it is well settled, operates to withdraw the land from entry under the preemption or homestead laws. Wolcott v. Des Moines Co., 5 Wall. 681; Wolsey v. Chapman, 101 U. S. 755; Bullard v. Des Moines & Fort Dodge Railroad, 122 U. S. 167; United States v. Des Moines Navigation &c. Co., 142 U. S. 510. As therefore the

Opinion of the Court.

land was so situated that Hamblin could not make a valid homestead entry, it follows that he is not in a position to question the conveyance of the legal title by the patent from the government.

But, further, the land was within the indemnity limits of the Sioux City road; it was therefore land which might be selected by that company to supply any deficiency in the granted lands; and the patent from the United States shows that it was so selected; and it was patented to the State for the use and benefit of that company. There is nothing in the record to show that such selection was not properly made, or that the land was not rightfully conveyed to the State for the benefit of that company, unless it be the decree of the Circuit Court, and that decree, if conclusive in this litigation, establishes the validity of the line located in 1869, and the rights of the Milwaukee Company to the land by virtue of the grant and that location. Of course, Hamblin is in no position to insist upon any rights of the Sioux City Company, and the case stands thus: The patent to the State for the use and benefit of the Sioux City Company was valid, unless the location in 1869 of the McGregor Company's line was valid; if the latter was valid, then the patent should have been issued to the State for the benefit of the Milwaukee Company. The question of right as between the two railroad companies has been settled by judicial decision, and Hamblin is in no position to question the force and effect of that decision. The judgment of the Supreme Court of Iowa was unquestionably right.

Affirmed.

Statement of the Case.

FLEITAS v. RICHARDSON, (No. 1.)

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA.

No. 29. Argued April 14, 1892. Decided March 6, 1893.

In executory process, according to the Civil Code of Louisiana, in the Circuit Court of the United States, an order, made without previous notice, for the seizure and sale of mortgaged land to pay the mortgage debt, under which the sale cannot take place until the debtor has had notice and opportunity to interpose objections, is not, at least when he does interpose within the time allowed, a final decree, from which an appeal lies to this court.

THIS was a bill in equity, filed June 29, 1888, in the Circuit Court of the United States for the Eastern District of Louisiana, by Gilbert M. Richardson, a citizen of New York, against Francis B. Fleitas, a citizen of Louisiana, and residing in that district, for a seizure and sale of mortgaged lands in the parish of St. Bernard in that district, under executory process, in accordance with the provisions of the Louisiana Code of Practice, the material parts of which are copied in the margin.1

1 ART. 63. When the hypothecated property is in the hand of the debtor, and when the creditor, besides his hypothecary right, has against his debtor a title importing a confession of judgment, he shall be entitled to have the hypothecated property seized immediately and sold for the payment of his debt, including the capital, the interest and the costs, pursuant to the rules provided hereafter for executory proceedings.

ART. 98. The proceedings are ordinary, when citation takes place, and all the delays and forms of law are observed. They are executory, when seizure is obtained against the property of the debtor, without previous citation, in virtue of an act or title importing confession of judgment, or in other cases provided by law.

ART. 732. Executory process can only be resorted to in the following

cases:

1st. When the creditor's right arises from an act importing a confession of judgment, and which contains a privilege of mortgage in his favor.

2d. When the creditor demands the execution of a judgment which has been rendered by a tribunal of this State, different from that within whose jurisdiction the execution is sought.

Statement of the Case.

The bill alleged that the defendant, on January 28, 1884, executed and delivered to the plaintiff five promissory notes for $12,600 each, payable to the plaintiff's order on January 1, in 1885, 1886, 1887, 1888 and 1889, respectively, with interest

The proceeding by provisional seizure (attachment) or in rem resembles in some sort the executory process, but should not be confounded with it, as they are subject to different rules.

ART. 733. An act is said to import a confession of judgment in matters of privilege and mortgage, when it is passed before a notary public, or other officer fulfilling the same functions, in the presence of two witnesses, and the debtor has declared or acknowledged the debt for which he gives the privilege or mortgage.

ART. 734. When the creditor is in possession of such an act, he may proceed against the debtor or his heirs, by causing the property subject to the privilege or mortgage to be seized and sold, on a simple petition, and without a previous citation of the debtor.

ART. 735. In obtaining this order of seizure, it shall suffice to give three days' notice to the debtor, counting from that on which the notice is given, if he resides on the spot, adding a day for every twenty miles between the place of his residence and the residence of the judge to whom the petition has been presented.

ART. 738. The debtor, against whom this order of seizure shall have been rendered, may obtain an injunction to suspend the sale, if before the time of sale he files in the court issuing the order his opposition in writing, alleging some of the reasons contained in the following article, and of which he shall swear to the truth.

ART. 739. The debtor can only arrest the sale of the thing thus seized, by alleging some of the following reasons, to wit:

1. That he has paid the debt for which he is sued;

2. That he has been remitted by the creditor;

3. That it has been extinguished by transaction, novation, or some other legal manner;

4. That time has been granted to him for paying the debt, although this circumstance be not mentioned in the contract;

5. That the act containing the privilege or mortgage is forged;

6. That it was obtained by fraud, violence, fear, or some other unlawful means;

7. That he has a liquidated account to plead in compensation to the debt claimed;

8. And finally, that the action for the recovery of the debt is barred by prescription.

ART. 740. When the judge grants an injunction, on the allegation under oath of any of the reasons mentioned in the preceding article, he shall require no surety from the defendant, but he shall pronounce summarily on the merits of his opposition if the plaintiff requires it.