610. Every case must necessarily be decided in accordance with
its own particular circumstances, after taking into consideration all
of the elements which, in any manner, affect the question. If it
could be said in this case, as it was in Michoud v. Girod, supra,
that the court could only see in the conduct of the complainants "the
fears and forbearance of dependent relatives, far distant from the
scene of the transactions of which they complain, desirous of having
what was due to them, and suspecting it had been withheld, but un-
willing to believe that they had been wronged" by their nephew,
in whom they reposed confidence, there would be no difficulty in de-
claring, as was done in that case, that complainants had not lost
their rights "by negligence, or by the lapse of time."
It is unques-
tionably true that the relationship of the parties always has an
important bearing on the question of laches, and that delay under
such circumstances is not as strictly regarded by the courts as in
cases where the parties are strangers to each other. Paschall v.
Hinderer, 28 Ohio St. 568; 2 Story, Eq. Jur. § 1520. But if the delay
is of so great a time as to destroy evidence, it may and will, even
in cases of close relationship, be such as to require a court of equity
to refuse relief. Haff v. Jenney, 54 Mich. 513, 20 N. W. 563. The
nonresidence of the complainants, while a proper matter for con-
sideration in the determination of the facts, does not of itself excuse
a want of diligence upon their part in endeavoring to ascertain
and enforce their rights. Broderick's Will Case, 21 Wall. 519; San
Jacinto Tin Co. Case, 7 Sawy. 433, 9 Fed. 726; Teall v. Slaven, 14
Sawy. 364, 370, 40 Fed. 774. But in this case, independent of the
relationship of the parties and the nonresidence of the complain-
ants, it affirmatively appears from the evidence that the aunts,
pending the negotiations between the respondent and themselves
for their interests in the estate, did not confide in the representa-
tions and statements made by respondent, as claimed in the bill of
complaint; but, on the contrary, they had two agents to look after
their interests in said estate, in whom they especially confided.
Both were priests,-one, Father Hugh Gallagher, residing in San
Francisco, the other, Father McGroarty, in Ireland. Both are now
dead. In answer to certain cross interrogatories propounded to
her, Catherine O'Donnell said, with reference to one of the letters
she received: "When I saw this letter, I found that Roger O'Don-
nell was not, in my opinion, intending to [do] right by me." She
also testified that "Father John McGroarty, who lived in Killygon-
den, held the money that was to be paid for the deed.
* I
was paid £524 by Bernard Martin, shop assistant to William Mc-
Groarty, brother of Father McGroarty.
Father McGroar-

ty first received £300 to offer to us, but we refused it. Afterwards
the offer was increased to £524. I was acquainted with Father
Hugh Gallagher. I had one letter from him in regard to the estate
of Hugh O'Donnell. I wrote to him in answer, and sent him a
power of attorney to act for me in looking after my interest in said
estate." After these negotiations as to the price to be paid, the
aunts received and accepted the sum of $5,235 for the execution of
of a deed of their interest in the estate. Some months after the

execution of the first deed, owing to defects in the acknowledgment thereof, they executed a second deed. There is no denial of the signing of these deeds; but it is claimed by counsel for complainants that the aunts were at the time totally ignorant of the true character of the documents they signed, and that they supposed them to be only powers of attorney authorizing the respondent to act as administrator, so as to defeat the application of the public administrator. Catherine O'Donnell, after stating in her deposition that she did not know William F. Black, the justice of the peace who took the acknowledgment to the first deed, and was never at his office, said:

"I signed a paper at Raphal, County of Donegal, in Mr. Wilson's office, as also did Mary Gallagher; but Jeremiah O'Donnell was not present. I do not recollect who advised us to sign. I only signed the papers altogether. The first I was made to believe was a power of attorney to Roger O'Donnell; but, from something I afterwards heard, I signed the second paper, recalling the first. Jeremiah O'Donnell told Mary Gallagher and myself that if we did not sign the first paper, giving power of attorney to Roger O'Donnell, we would get nothing."

This testimony is not clear. It is, in several respects, confusing and uncertain in its character. The aunts were not wholly uneducated. Both could read, and one, at least, could write. They knew something about business. They did not trust their nephew. They relied upon the priests,-confided in and consulted with them about accepting the price offered by the respondent. They agreed upon the amount, accepted the money, and then executed the deeds. That a power of attorney was signed by them, at some stage of the transactions, seems probable and reasonable, as it was asked for in the first letter written by the respondent, in order to enable him to defeat the application of the public administrator that was likely to be-and was, thereafter-made to the probate court for letters of administration; but no money was offered for the execution of any power of attorney, and it seems unreasonable to believe that the aunts would have demanded any money for the execution of such a power of attorney. The reference made by the respondent, in the second letter, to "papers," evidently referred to the deeds, because at the time this letter was written he had already received letters of administration from the court, and no power of attorney was then necessary to enable him to act. In the light of all the facts, it seems improbable that the aunts could, at the time of the execution of the instruments, have thought that either one of the deeds which they signed was only a power of attorney. It is more natural and reasonable to believe that, owing to the great lapse of time, the recollection of the witness is rendered somewhat uncertain as to the real character of the papers she had signed, and of the time, place, and manner of their execution. But, be that as it may, it further affirmatively appears that, if the aunts did sign the deeds in ignorance as to their true character, they afterwards became aware that the respondent claimed the property as his own. In 1873 -more than two years after the execution of the second deed-the respondent visited his aunts in Ireland, and, in conversations with

them, claimed to be the owner of three-fourths of the estate. Catherine O'Donnell testifies, in regard to his visit:

"He remained in Ireland over a year. I saw him frequently during his stay. He lived around among friends, and was occasionally at my house. There was nothing particular took place between myself and Mary Gallagher. Roger O'Donnell seemed to be glad in his idea that he was the sole owner of Hugh O'Donnell's estate."

It thus appears that the aunts had notice in 1873 that respondent was claiming interests in the estate adverse to them. The law does not require actual knowledge of all the facts. If the aunts failed, or omitted, to obtain knowledge, when it was obtainable after notice, or the circumstances were such as would reasonably have induced an inquiry and an effort to obtain full knowledge, it is sufficient to hold the parties guilty of laches in exercising reasonable diligence to enforce their rights; because "the possession of such means of knowledge is, in equity, the same as knowledge itself." New Albany v. Burke, 11 Wall. 96, 107; Bowman v. Wathen, 1 How. 189; Wood v. Carpenter, 101 U. S. 139; Teall v. Slaven, supra; Sedlak v. Sedlak, 14 Or. 540, 13 Pac. 452. In 2 Pom. Eq. Jur. § 965, the author, in announcing the general principles applicable to acquiescence and lapse of time, among other things, said:

"When a party, with full knowledge, or at least with sufficient notice or means of knowledge, of his rights, and of all the material facts, freely does what amounts to a recognition of the transaction as existing, or acts in a manner inconsistent with its repudiation, or lies by for a considerable time and knowingly permits the other party to deal with the subject-matter under the belief that the transaction has been recognized, or freely abstains for a considerable length of time from impeaching it, so that the other party is thereby reasonably induced to suppose that it is recognized, there is acquiescence, and the transaction, although originally impeachable, becomes unimpeachable in equity."

Numerous authorities are cited in support of this text, and the cases of Gresley v. Mousley, 4 De Gex & J. 78, Baker v. Bradley, 7 De Gex, M. & G. 597, and Michoud v. Girod, 4 How. 503, 561, which are cited and specially relied upon by complainants, are referred to as "remarkable instances of relief given after a considerable lapse of time." These cases, however, as before intimated, are essentially different in their facts from the present case.

The failure of complainants to specifically state and prove the impediments, if any existed, to an earlier prosecution of the suit, is another reason, often assigned by the courts, why the relief asked for should be denied. Badger v. Badger, 2 Wall. 87; Sullivan v. Railroad Co., 94 U. S. 806; Godden v. Kimmell, 99 U. S. 211; Lansdale v. Smith, 106 U. S. 394, 1 Sup. Ct. 350. It was 20 years after the execution of the deeds before the original bill herein was filed,-17 years after the original complainants had knowledge that respondent claimed the property adversely to them, and 11 years after the final decree of distribution of the property of the estate. Length of time necessarily obscures, or tends to obscure, all human evidence, and very often removes from the parties the means of verifying and making certain the exact nature of all the original transactions.

These things are said to operate, by way of presumption,

in favor of innocence and against the imputations of fraud. It is unreasonable, after such a great length of time, to require positive proof of all the minute circumstances of any transaction, or to expect a satisfactory explanation of every difficulty, real or apparent, with which it may be incumbered. The most that courts can expect, if the parties are all living, owing to the frailty of memory and human infirmity, is that the material facts can be given with certainty to a common intent. But, if some of the parties and many of the witnesses are dead, as is the case here, the most that can ordinarily be expected is to arrive at probabilities, and substitute general presumptions of law for actual knowledge. It therefore follows that, in all such cases, fraud and wrongdoing ought not to be imputed to the living, unless the evidence of fraud upon one side, and lack of knowledge, or means of knowledge, upon the other side, are made clear beyond a reasonable doubt. U. S. v. Beebee, 17 Fed. 37; Hinchman v. Kelley, 4 C. C. A. 189, 54 Fed. 63; Hammond v. Hopkins, 143 U. S. 224, 274, 12 Sup. Ct. 418. Having carefully examined all the facts and circumstances of this case, and duly considered the principles of law applicable thereto, my conclusion is that the defense of laches and lapse of time must be sustained.

The views already expressed are conclusive of the case, and render it unnecessary to consider the further question presented by the facts, whether the title of the respondent derived from the proceedings had in the probate court was of such a character as would, of itself, enable the respondent to defeat the suit as to the property therein involved. The respondent is entitled to a decree dismissing the bill, with costs.

NORTHERN PAC. R. CO. et al. v. MUSSER SAUNTRY LAND, LOGGING & MANUF'G CO. et al.

(Circuit Court of Appeals, Seventh Circuit. July 9, 1895.)

No. 208.

1. PUBLIC LANDS-GRANTS TO RAILROADS-RESERVATIONS.

By act of July 2, 1864 (13 Stat. 365), congress granted to the N. P. Co., in aid of the construction of its railroad, "every alternate section of public land not mineral, designated by odd numbers * ** on each side of said railroad line ** * * not reserved * * * or otherwise appropriated at the time the line of said road is definitely fixed and a plat thereof filed in the office of the commissioner of the general land office." On July 6, 1882, the N. P. Co. filed a plat of the definite location of its line, within the state of Wisconsin, in the office of the commissioner, and in September, 1882, had completed such line. By act of June 3, 1856 (11 Stat. 20), congress had granted to the state of Wisconsin, in aid of the construction of a railroad, certain public lands in that state on each side of the road as it should be located, providing that if any lands within such grant had been sold or appropriated, other lands, within 15 miles from the road, might be selected by the state, subject to the approval of the secretary of the interior. The state bestowed this grant upon the S. C. Co. By act of May 5, 1864, congress made a further grant to the state in aid of the construction of such road, and provided that the indemnity lands might be selected within 20 miles from the line as definitely located. The state also bestowed this grant on the S. C. Co., which adopted a definite line, and notice of such bestowal and adoption was given to the secretary of the v.68F.no.9-63

interior. On February 28, 1866, the commissioner of the general land office directed the officers of the local land office to withhold the lands within the limits of such grants to the S. C. Co. from sale or location, and such lands were withdrawn accordingly, including certain lands more than 15 and less than 20 miles from the line of the S. C. Co., and within the place limits of the grant to the N. P. Co., as afterwards definitely fixed by the location of its line. The rights of the S. C. Co. afterwards passed to the C. & O. Co. which in 1882 completed the line, and in 1883 selected, as indemnity lands, part of the lands so withdrawn, within the limits of the grant to the N. P. Co. In 1885, the C. & O. Co. conveyed such lands to the M. Co. In 1889, it having been ascertained that the grant to the C. & O. Co. was satisfied without such lands, that company canceled its selection thereof. The M. Co. then made a cash entry of such lands, which was accepted, without regard to a protest made by the N. P. Co. Held, that the reservation of said lands by the land department excepted them from the operation of the grant to the N. P. Co., and that company acquired no right to them, either before or after the definite location of its line.

2. SAME-POWER OF LAND DEPARTMENT.

Held, further, that it was within the power, and was the duty, of the land department, even after the passage of the act of July 2, 1864, making the grant to the N. P. Co., to reserve for the benefit of the C. & O. Co. the lands necessary to satisfy the prior grant made to it.

Appeal from the Circuit Court of the United States for the Western District of Wisconsin.

This was a suit by the Northern Pacific Railroad Company and Thomas F. Oakes, Henry C. Payne, and Henry C. Rouse, its receivers, against the Musser Sauntry Land, Logging & Manufacturing Company and the Chicago, St. Paul, Minneapolis & Omaha Railway Company to quiet the complainants' title to certain lands. circuit court sustained a demurrer to the bill. Complainants appeal. Affirmed.

The

The appellants, complainants below, claim title to the lands in controversy under the third section of an act of congress approved July 2, 1864, which, so far as it bears upon the questions involved, is as follows: "Sec. 3. And be it further enacted, that there be, and hereby is, granted to the Northern Pacific Railroad Company, its successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific Coast, and to secure the safe and speedy transportation of the mails, troops, munitions of war and public stores, over the route of said line of railway, every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile, on each side of said railroad line, as said company may adopt, through the territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever it passes through any state, and whenever on the line thereof the United States have full title, not reserved, sold, granted or otherwise appropriated, and free from pre-emption, or other claims or rights, at the time the line of said road is definitely fixed, and a plat thereof filed in the office of the commissioner of the general land office; and whenever prior to said time, any of said sections or parts of sections shall have been granted, sold, reserved, occupied by homestead settlers or pre-empted, or otherwise disposed of, other lands shall be selected by said company in lieu thereof, under the direction of the secretary of the interior, in alternate sections and designated by odd numbers, not more than ten miles beyond the limits of said alternate sections: provided, that if said route shall be found upon the line of any other railroad route to aid in the construction of which lands have been heretofore granted by the United States, as far as the routes are upon the same general line, the amount of land heretofore granted shall be deducted from the amount granted by this act: provided further, that the railroad company receiving the previous land grant may assign their interest to said Northern Pacific Railroad Company, or may consolidate, confederate, and associate with said company upon the terms