TOWSLEY V. JOHNSON. void. The company was thus disabled to perform the agreement on its part. Besides, the title, which by means of fraudulent preemptions, it had acquired to other lands, was also vacated, and it was left without means. It became insolvent and went out of existence. It was at this period that Towsley asserted his preëmption-right to these lands. There is no pretence for saying that his previous dealings with this company stood in the way of his doing so successfully. So far as the technical doctrine of estoppel is concerned it cannot avail Johnson, for he is a stranger. Coke says (Co. Litt. 352, a): “Every estoppel ought to be reciprocal, that is, to bind both parties; and this is the reason, that regularly a stranger shall neither take advantage, nor be bound by the estoppel." Nor had the land been selected as the site of a city or town, and thereby taken out of the preemption act. The only improvement on the tract was made by Towsley. The building of a hotel on an adjoining tract did not and could not affect the character of these lands. With the company, the project of building a town failed, and he was left the sole occupant of the land. The previous survey into lots by an exploded company, and a single dwelling house, are quite insufficient to impress upon an otherwise vacant tract of eighty acres, the character of a city, or to withdraw it from the operation of the preemption law; especially after the town enterprise was abandoned. Left by this company without any title to the lands, it would be unjust in the extreme, to deny to Towsley the only means of acquiring a title, and saving the $1,500 which he had expended in building thereon. Another objection urged against this preemption right is, that by a previous filing on another tract, the claimant exhausted the privilege conferred upon him by the law. In the case of Smiley v. Sampson, ante 56, this question was fully considered and decided. It is, however, right TOWSLEY V. JOHNSON. to refer here briefly to the circumstances of this previous filing. When he saw that the enterprise of the town was about to fail, Towsley went to the southern part of the Territory to find land which he could preempt. Having found a tract answering his purposes, he filed in the proper land office his declaratory statement of intention to preëmpt the tract; and, without making any improvements, returned to his home for his family, and to effect his removal. While at home, he broke his arm, and was thus laid up some weeks. As soon as he recovered he returned in company with his hired man to the tract, when he found it occupied and already preëmpted by another. He applied to the land officers for advice as to the course which he should pursue. They told him that he could not secure the land, were he to contest the entry already made, and that he had better abandon his claims thereto, and that his filing would not invalidate any subsequent entry under the preemption law which he might seek to make. Acting under this advice, he did abandon his claims to the land, and has never since in any way asserted them. He returned home, and then laid claim to this tract. His whole conduct was open, ingenuous and fair. It commends him to our good opinion in every point of view. To say that such conduct shall be held to operate to deprive him of his right to these lands, is unreasonable. On the question of our jurisdiction in this case, we refer to our opinion in Smiley v. Sampson. Another objection to his claims here, is that Towsley con tracted to convey the tract to McConihe, and in fact did convey a part of it to him; and in so doing, disqualified himself from preempting it. The facts do not support the position. Before asserting any preemption claim to the tract, while he expected to get two town lots from the Sulphur Springs Land Company, he mortgaged them to Mc ! TowSLEY V. JOHNSON. Conihe. But this evidently did not qualify his preemption right. Between the date of his filing and the time he proved up, he made no conveyances. Conveyances made afterwards, whatever they were, if standing alone, do not show a previous contract. And the circumstances of his several mortgages and deeds clearly exclude the idea of any such contract. This objection is not well taken. I have now considered each one of the objections urged against Towsley's preemption right. They are none of them of any force. They do not either singly or all together displace the strong equity of his claim. It gives me satisfaction to find that he holds his home by sanctions of the law of the highest obligation, as well when regarded technically, as when regarded equitably. The flimsy claim of Johnson cannot prevail against his solid rights. The decree of the District Court is affirmed with costs. Decree affirmed. ORR v. SEATON. Orr v. Seaton. PREPARING RECORDS. The attention of counsel is called to the necessity of seeing to it, that proper orders are entered in the records of the District Court, and that full transcripts thereof are brought to the Supreme Court. 2. PRACTICE: Time to answer. When, to a defendant in default for want of answer, the time is given which is fixed by statute, he has to the third Monday following, to answer, and no longer. 3. · Objecting to service. A defendant who has answered, although his answer has been stricken from the files, and who has applied to the court for leave to answer over, has appeared to the action, and cannot object to the form of the process. 4. — Opening a default. Whether a default shall be opened, is a question addressed to the discretion of the court. The Supreme Court will not interfere with its exercise, unless it is oppressive. W. H. James, for plaintiff. J. M. Woolworth, for defendants. CROUNSE, J. This is a suit in equity in which an appeal was taken to the Supreme Court of the Territory, from a decree rendered by his honor WILLIAM F. LOCKWOOD, formerly one of the district judges, at the June term of 1866, for Dakota county. The bill was filed to foreclose a mortgage given by the defendant Seaton, to secure the payment of certain promissory notes, and to have its lien declared prior to that of certain mortgages and judgments of the other defendants, given by and obtained against said Seaton, subsequent to the making and recording of the plaintiff's mortgage. The defendants were all non-residents, and service was made by publication. The time specified in the published notice for the defendants to answer was the 9th day of October, 1865. The proof of the publication was not filed until the 7th day of November, of the same year. ORR v. SEATON. The defendants by answer filed the 5th day of January, 1866, recite their liens and allege such informal and improper recording and indexing of plaintiff's mortgage, as should postpone his lien to those of the defendants. The record transmitted to this court contains much that is unnecessary to enable the court to pass upon that which only can be reviewed properly here, and fails to show other important orders made, evidently by the court, leaving them to be inferred by us by reference to the record presented. The record shows an answer filed long after the time for answering had expired, a motion made to strike such answer from the files, and a subsequent default and judgment or decree, without an order striking the answer out as asked for; leaving this court to infer that it was so stricken out, by reference to certain affidavits filed and applications made by the defendants, at the June term following, for leave to answer. Allusion is made to this here, to suggest to attorneys the importance of attending to the entry of every material order made at the trial, and of seeing that the record presented to this court contains them. It appears, however, that on the 9th day of June, 1866, on motion by the defendants, an order was made "that the defendants be allowed the time fixed by statute within which to file their answer from this date." The statute in cases of personal service fixes the third Monday after the date of the return of the subpoena, and where publication is made the same time is given after completion of service. This would make the 25th of June the last day given in which to file an answer. The defendants gave the order another interpretation, claiming that the full time of the publication of the notice and the time thereafter given should be allowed them, being some weeks more than by the other computation. The Court took the former view of the order, and on the |