overruled, although the supreme court does not expressly indicate any intention to overrule it.

There is an intimation, however, in the opinion in the Chicago Bridge Case, not necessary to the decision of the case upon the other views expressed by the court, that the provision of the ordinance of 1787, corresponding to the provision in question in the acts of admission of California and Oregon, if in force, would not affect the question: 107 U. S. 689. If this be so, then the distinction referred to is of no practical consequence. But the bridges, and other obstructions referred to as illustrations following this intimation, were all draw-bridges, or other partial obstructions, while the bridge now in question is an absolute, unqualified, entire obstruction to the navigation of the river. In view of these intimations, and other general observations in the opinion of the court, and not feeling quite certain as to how far the supreme court intended to go on these questions, and not wishing even to seem to disregard the decisions of the supreme court, I shall, for the purposes of this case, sustain the demurrer and dismiss the bill. The bill presents the case fully, and it will be much better for all parties to have the effect of the provision of the act of admission determined now before going to the expense of a trial. As the complainant has already submitted to the obstruction for many years, the right, I think, should be finally determined on appeal before an injunction should be decreed. The supreme court does not appear to me to have considered carefully, or finally determined, what the purpose and effect of the provision in question in the act of admission is. It must have some object, and if that object be not to protect and preserve the navigability of those waters against obstructions equivalent to destruction by authority of the state, what was the purpose? The fact that the provision is in the act of admission, instead of in subsequent independent legislation, can not affect its construction, or its force and effect. But for the observations in the Chicago Bridge Case, which I think unnecessary to the decision, and believing that congress had acted upon the subject, I should have followed the ruling of the circuit court in the Wallamet Bridge Case, and what I understand to be the decision in the Wheeling Bridge Case, and overruled the demurrer. I do not wish to be regarded as having changed my own views upon the rulings in the Wallamet Bridge Case. I still think it similar to the Wheeling Bridge Case, and distinguishable from any other cases hitherto decided by the supreme court brought to my attention. I still think the decree in that case correct, on the ground that congress has acted upon the subject, also on other grounds than the point discussed in this case. But the case will be appealed, and if the circuit court was wrong, the rights of the parties will be finally settled by the supreme court. I only write this opinion to indicate upon what distinction, if any, the case I suppose should be taken out of the decision of the Chicago Bridge Case, with the hope that the attention of the supreme court will be specially directed to that supposed distinction.

SHARON V. HILL.

Decided March 3, 1884.

FRAUDULENT Marriage ContrACT-EQUITABLE JURISDICTION TO CANCEL. Equity has jurisdiction to declare null and void and to cancel an instrument which is claimed to be a marriage contract, executed in conformity with section 75 of the civil code of California, when the same is a forgery, or was obtained by fraud.

Before SAWYER, Circuit Judge, and SABIN, District Judge.

BILL in equity to cancel a written instrument. The opinion states the facts.

W. H. L. Barnes, for the complainant.

Tyler & Tyler, for the defendant.

By the Court, SAWYER, Circuit Judge (delivering an oral decision). This is a suit in equity to declare null and void, and to cancel an instrument which is claimed to be a contract of marriage between William Sharon, complainant, and Sarah Althea Hill, defendant. The point of the demurrer interposed, is, that the bill does not present a case for equitable relief. We have examined the question fully, and we are satisfied, upon the principles established by the various authorities cited by complainant's counsel, that it is a proper case for equitable jurisdiction. The bill presents a case of forgery and fraud. The contract purports to have been drawn and executed in pursuance of the provisions of section 75 of the civil code of California. The code of California makes a marriage contract purely a civil contract for all legal purposes, like any other civil contract.

This supposed contract is alleged to be a forgery, and to be fraudulent. It purports to be in writing, and to be signed by the parties; and the defendant claims, by virtue of it, to be the wife of complainant, and to have an interest in his property, which is alleged to be of the value of several millions of dollars. There is no adequate remedy at law for complainant, against the claim set up under the alleged contract, and no means, at law, to annul it, at the suit of complainant. The defendant can choose her own time for enforcing her claim under the alleged contract, even after the death of the other party. Fraud has always been one of the principal heads of equity jurisdiction.

The instrument in question is alleged to be a forgery, and a fraud. If it is a forgery, it is of course a fraud, also. The only parties who appear to have any personal knowledge of the facts, so far as indicated—who, personally, know anything about this transaction-are the two parties to the alleged fraudulent contract. One is alleged to be many years older than the other, the complainant being alleged to be sixty, and defendant, twenty-seven years old. The elder, in the ordinary course of nature, is more liable to die, and the contract, in such an event, would be in control of defendant, without any testimony to defeat the fraud, if fraud there be. The right to several millions of property might be, in after years, affected and controlled by reason of the alleged fraud. A great wrong and injustice may be thus perpetrated in consequence of it, unless a court of equity can take hold of, and cancel it. There is no way by an action at law, that we are aware of, to meet the conditions, or, effectually, dispose of this instrument. We are satisfied from the authority we shall cite, and numerous other authorities to the same effect, that this

is a proper case for equitable relief, if the allegations in the bill be true, and, for the purposes of the demurrer, their truth is admitted.

We think this case is within the rule that is often laid down on this subject. Story, in his work on equity jurisprudence, section 700, after speaking of various instruments, that may be used for fraudulent, or improper, purposes, and which may be canceled by a court of equity on the ground of fraud, says: "If it is a mere written agreement, solemn or otherwise, still, while it exists, it is always liable to be applied to improper purposes, and it may be litigated at a distance of time when the proper evidence to repel the claim may be lost or obscured; or when the other party may be disabled from contesting its validity with as much ability and force as he can contest it at the present time."

Story says further, in section 701: "The whole doctrine of courts of equity on this subject is referable to the general jurisdiction which it exercises in favor of a party quia timet. It is not confined to cases where the instrument having been executed is void upon grounds of law and equity; but it is applied, even in cases of forged instruments which may be decreed to be given up without any prior trial at law, on the point of forgery."

If this instrument is not void upon its face, then, its validity depends upon testimony aliunde, and testimony which rests wholly in parol, which is liable at any time to be wholly lost, or placed beyond the reach of the parties injured by the fraud. In case of the death of complainant, the contract, and the means of enforcing it, honest, or otherwise, would be wholly in the control of the alleged forger, and fraudulent claimant. She would be mistress of the situation, and the heirs of a large estate might be wholly at her mercy.

There is a charge of forgery and fraud; and we think the instrument, if a forgery, and fraud, ought to be canceled. If there is no remedy in equity for such a wrong, as is charged, then the law is, indeed, impotent, to protect the community against frauds of the most far-reaching, and astounding character. If there is no precedent for a case upon the exact state of facts disclosed by the bill, it must be because no instance exactly like it has ever before arisen. The principle, however, is established, and the occasion has arisen for making a precedent, if none ever existed before.

The demurrer is therefore overruled, with leave to answer on or before the next rule day, on payment of the usual costs.

DISTRICT COURT, DISTRICT OF OREGON.

WEST PORTLAND HOMESTEAD ASSOCIATION V. LOWNSDALE, Assignee, etc. Filed February 21, 1884.

CONVEYANCE-CONSIDERATION FOR.-A conveyance under seal is prima facie evidence of a sufficient consideration, and a mere stranger to the land can not question it. CASE IN JUDGMENT.-G. and C. were tenants in common of a tract of land which was surveyed and platted as Carter's addition to Portland, and then partitioned between tenants in common by mutual conveyances, the one to C. containing a small park for the purpose of equalizing the partition, described therein as block 67, and afterwards changed by said survey so as to materially diminish said park; and at the same time G. surveyed a tract of land adjoining the tract held in common into lots and blocks, and together with his co-tenants platted the two tracts as one Carter's addition, and duly acknowledged and recorded the same, with a block numbered 67 in the G. tract, and the small park aforesaid, not numbered. Held, That the conveyance to C. of the park as block 67 did not affect the block 67 afterwards laid off in the G. tract, and that the assignee in bankruptcy of C. had no right, interest, or equity therein, and should be enjoined at the suit of G.'s grantee from selling the same as the property of C. and thereby casting a cloud on such grantee's title thereto.

Surt to enjoin a sale of real property. The opinion states the facts. C. P. Heald, for the plaintiff.

George H. Durham and George H. Williams, for the defendant.

DEADY, J. This case was before this court on a plea of the statute of limitations (section 5057, revised statutes) to the original bill, filed on March 27, 1883, when the former was held good: 17 Fed. Rep. 205; and also on a demurrer to an amended bill, filed July 24, 1883, which was overruled: Id. 614. The case has since been heard on such amended bill, the answer thereto, and the replication, exhibits, and testimony, and the only question arising thereon, is this: Was the present block 67 in Carter's addition to Portland conveyed to Charles M. Carter on September 6, 1871, by the partition deed to him of L. F. and Elizabeth Grover and others of that date? If it was, this suit can not be maintained, even if it was included in said deed by mistake, because the right to relief therefrom is barred by section 5057 of the revised statutes. But if it was not, then it is equally clear that the defendant, as the assignee in bankruptcy of said Carter, has no right or interest in the property, and may be restrained from selling it as such, and thereby casting a cloud on the title of the plaintiff thereto.

This is a question of fact, and without discussing the evidence in detail, it is sufficient to say that it is clear and convincing that this block 67 was not in existence-had not been laid off-when this deed was executed, and was not affected by it. Neither did the parties to this conveyance contemplate or understand that the title to this block was in any way involved in the partition of which it forms a part. For although the description in the conveyance-block 67 in Carter's addition to Portland-so far indicates this block as the property intended as to make a prima facie case of identity, yet the plaintiff is entitled to show, and has shown beyond a doubt, that this is a mere coincidence, and that whatever property was intended to be conveyed by the description of block 67 in Carter's addition, it was not and could not be this block 67.

Whenever, for any cause outside of a deed, there arises a doubt in the application of the descriptive part thereof, evidence dehors the writ

ing may be resorted to for the purpose of identifying the subject of the instrument and the understanding or intent in this respect of the parties thereto. And it matters not that it may not appear what property was intended to be conveyed by the description of block 67 in this deed, so long as it does not appear that it is the block in dispute.

But there is very little room for doubt or controversy on the subject. When the parties had selected the blocks in the common tract as laid out, up to and including 65 in the first survey, it was found that Mr. J. S. Smith and Charles M. Carter had less in value, according to the agreed prices, than the other two; and so, to equalize the partition, Smith took a small park and numbered it 66, while Carter took another one lying between Summit and East drives, and marked it 67; and the deeds to them were made out accordingly. The plat of this survey was photographed before this partition, and the original was burned in the great fire of 1872. The photographic copy is here, but without the numbers 66 and 67 on it.

Soon after this survey and partition of the common tract, the ground, which was uneven and steep, and covered with timber and brush, was burned over, and showed such irregularities of conformation as induced the parties to change the survey in some respects, whereby the park allotted and conveyed to Carter as block 67 was materially reduced in size, and on this account and from its situation, regarded as almost worthless.

In platting the subsequent survey of the Grover tract, the second survey of the common tract was included therein, and the whole acknowledged and recorded by all the parties thereto on November 4, 1871, as the plat of Carter's addition. In numbering the blocks on the Grover tract, the draftsman, who was the same person in both cases, commenced at G6, the highest number on the original draft of the plat of the common tract being 65. Before the acknowledgment, however, attention was called to the fact that Smith had been allotted a park in that tract and received a conveyance of it from his co-tenants as block 66, and thereupon the block of that number on the Grover tract was numbered 664, but the park allotted and conveyed to Carter as block 67 does not appear to have attracted the same attention, and the plat was acknowledged and recorded, with only the one block numbered 67 on it-the one in the Grover tract. The probability is, that being comparatively worthless it was overlooked. It was never listed for taxation; and Mr. Carter testifies that he owned the block adjoining it, and he preferred and so regarded it as public ground or street.

The theory of the defendant is, that although this park in the common tract was allotted and conveyed to Carter as block 67, yet when upon the resurvey this was nearly obliterated, that the parties and particularly Grover and Carter-came to an understanding that there should be a block 67 laid off in the Grover part of the new Carter's addition, which should stand for and represent the block of that number and description in his deed of September 6. But the parties to the transaction-Grover, Smith, and Carter-all testify positively that there never was any such agreement or understanding, or even any intention that Carter should have block 67 in the Grover tract on any account or for any reason; and there is nothing in the case but surmise and conjecture to the contrary. About this time Carter wrote his name on the recorded plat of Carter's addition across all the blocks claimed by him therein, and this block 67