the contract," said REDFIELD, J., "been made in pursuance of a contract entered into at the time of plaintiff's becoming surety for Adams to Downer, it would be considered a part of that contract, and upon sufficient consideration." Rix v. Adams, 9 Vt. 233. This view is consistent with the instrument construed as a whole, is in accord with its manifest intent, and renders it an operative and binding obligation. A contract must be construed so as to give effect to all its parts, and carry out the obvious intentions of the parties; and that construction is to be given to a contract which will make it legal, rather than one which will make it void. 2 Pars. Cont. 500, 505. As the other objections are dependent upon this, this result precludes the necessity of their examination. The judgment must be reversed and a new trial ordered.

(33 Kan. 275)

SUPREME COURT OF KANSAS.

FEARNS and another v. ATCHISON, T. & S. F. R. Co.
Filed March 7, 1885.

1. PRACTICE-ERROR-RECORD-AMENDED PLEADINGS.

Where a case is brought to the supreme court, and it appears that amended pleadings may possibly have been filed in the court below which were not brought to the supreme court, but from the whole of the record, as brought to the supreme court, it can be ascertained what the issues were which were tried in the court below, and what errors, if any, were committed by the court below, held, that the supreme court will decide the case upon its merits. 2. PUBLIC LANDS-HOMESTEAD ENTRY-MISTAKE.

Where a person, eligible to procure a homestead under the United States homestead laws, settles upon, occupies, and makes valuable and lasting improvements on a piece of government land, and attempts to make a homestead entry thereof, but through mistake makes an entry of another piece of land, held, that he has obtained such an interest in the land that he may afterwards have his homestead entry so corrected as to make it an entry of the piece of land which he had settled upon and intended to enter.

3. SAME-LOCATION OF RAILROAD.

And in such a case, where a railroad company which would be entitled to the land, upon definitely locating its railroad opposite thereto, provided the same were still government land and not affected by any homestead or pre-emption claim, definitely locates its road opposite the land after the attempted entry thereof, but before the entry is corrected, held, that the railroad company obtains no interest in the land.

4. SAME-POSSESSION AS NOTICE.

Where a person who has settled upon and attempted to make a homestead entry of a piece of government land is in the open, notorious, and exclusive possession thereof, claiming the same as his homestead, such possession is sufficient to put all persons upon inquiry, and all persons are bound to take notice of his rights and interests in and to the property.

Error from Chase county.

Jetmore & Son, for plaintiffs in error.

A. A. Hurd, Robert Dunlap, and W. C. Campbell, for defendant in

error.

VALENTINE, J. This was an action in the nature of ejectment, brought by the Atchison, Topeka & Santa Fe Railroad Company against Elizabeth Fearns, to recover the S. of the S. E. of section 21, in township 20 S., of range 8 E., in Chase county, Kansas. Before the final trial of the case Elizabeth Fearns died, and the action was revived against her heirs, Charles Fearns and Catherine Gleason. The final trial was by the court without a jury, and the court, after delivering an opinion in the case, found generally in favor of the plaintiff and against the defendants, and rendered judgment accordingly; and the defendants, as plaintiffs in error, now bring the case to this court for review.

A preliminary question is raised in this court. It is claimed that amended pleadings were filed in the case, and that they have not been brought to this court, and therefore that this court cannot tell what the issues were in the court below, nor whether the court below com

mitted any material error or not. We do not think, however, that it sufficiently appears that amended pleadings were filed in the court below, or that the original pleadings were amended further than to substitute Charles Fearns and Catherine Gleason as the defendants, in the place of Elizabeth Fearns, the original defendant. This is as far as the blank amended pleadings found in the record show, and they certainly do not change the original issues in the case. Besides, the case was tried in the court below precisely as though the issues as made by the original pleadings were still the issues in the case. The most of the facts were agreed to, and nearly all the evidence was introduced without objection; and all these facts and all this evidence and the opinion of the court below indicate that the parties on both sides believed that the issues on the trial were just what they were in fact under the original pleadings; and the original pleadings have been brought to this court and are now before us. Besides, it is well known that the pleadings in ejectment do not usually state the facts in detail, but usually state them in the most general terms. The petition usually alleges in general terms ownership and right of possession on the part of the plaintiff and wrongful detention on the part of the defendant; and the answer is usually a general denial. It is our opinion that no amendments were made to the original pleadings further than to substitute the names of the heirs of Mrs. Fearns for her name. And, entertaining this opinion, as we do, we shall decide the case upon its merits.

The facts of the case appear to be substantially as follows:

In 1863, and prior and subsequent thereto, the land in controversy was a portion of the public domain of the United States, subject to homestead entry, pre-emption, etc. In the early part of January, 1868, Patrick Ryan settled upon and occupied the land in controversy, intending to procure the same under the homestead laws of the United States. Afterwards, and on January 13, 1868, he attempted to make a homestead entry of such land at the United States land-office at Salina, but in fact, and through mistake, made an entry of another piece of land. On June 9, 1869, Lucius Manly filed a declaratory statement for a pre-emption entry of the same land which Ryan had intended to enter, alleging a settlement thereon on January 8, 1869. On June 30, 1869, the plaintiff railroad company definitely located its railroad opposite the land in controversy, and within less than 10 miles thereof, and became entitled to the same under the congressional land grant to the state of Kansas for railroad purposes, of March, 3, 1863, (12 U. S. St. at Large, 772,) provided the homestead and pre-emption entries of Ryan and Manly were both illegal and void; but the railroad company did not become entitled to such land if either of such entries was valid. Hence the principal question involved in this case is whether either of such entries was valid or not. On July 9, 1869, Ryan filed an affidavit in the local land-office, setting forth that when he filed his homestead application he intended to include therein the tract of land in controversy, but that the same was accidentally omitted from his papers; that he had cultivated and improved the tract named, and that Manly's filing was not in good faith, and asked to be allowed to amend his application. He had, in fact, made lasting and valuable improvements on the land. Upon a hearing between these parties, in September, 1869, Manly's filing was canceled, and Ryan was allowed to amend

his entry so as to include the land in controversy. On November 3, 1859, an order of the United States land-office withdrawing supposed government lands, including the land in controversy, from market, on account of the said act of congress of March 3, 1863, and the company's definite location of its railroad opposite such lands, was received at the local land-office. Ryan continued to occupy the land, and to cultivate and improve the same, up to about June 15, 1870, when he abandoned the same, and on a subsequent contest between himself and A. S. Sharp in the local land-office, it was held that Ryan had abandoned his claim, and his entry was canceled on December 6, 1870. On October 10, 1871, Elizabeth Fearns filed a declaratory statement alleging settlement on the land on August 13, 1871, and on October 14, 1871, she made a homestead entry for the land. On February 2, 1874, it was held by the commissioner of the general land-office that Ryan's entry was not valid at the date of the definite location of the company's railroad, and that such entry did not take the land out of the grant of lands to the state of Kansas for railroad purposes, and therefore that Mrs. Fearns' entry was not valid, and on July 28, 1874, her entry was canceled, and on April 13, 1875, the land was certified to the state of Kansas for the benefit of the said railroad company, and on June 21, 1875, the land was patented by the state of Kansas to the railroad company.

All the foregoing proceedings seem have been ex parte, and at the instance of the railroad company only, and Mrs. Fearns was not a party thereto. Afterward Mrs. Fearns applied to the local land-office for a reinstatement of her homestead entry, and made proof of her compliance with all the provisions of the homestead law, and on August 6, 1877, such application and proof were transmitted to the commissioner of the general land-office. Mrs. Fearns made her final proof on September 22, 1877, showing her compliance with the homestead laws, which proof was also transmitted to the general land-office. Her application was overruled and rejected by the commissioner of the general land-office on December 6, 1877. The case was then appealed to the secretary of the interior, who, on August 27, 1878, held that Mrs. Fearns' homestead entry was valid, and that she was entitled to the land; holding that Ryan's homestead entry was valid at the time of the definite location of the plaintiff's railroad; holding that although Ryan's entry was defective and for the wrong land when it was first made, yet that subsequently, when the aforesaid amendment was made thereto changing it to the land in controversy,-to the land which he had settled upon and occupied as a homestead, and which he had in fact intended to enter,-such amended entry took effect by relation from the date of the original entry of January 13, 1868, and was, therefore, prior to the railroad company's definite location of their railroad on June 30, 1869; and therefore, under the acts of congress of March 3, 1863, (12 U. S. St. at Large. 772,) and April 12, 1876, (19 U. S. St. at Large, c. 72, pp. 35, 36,) the railroad company did not obtain any right to or interest in the land. On March 16, 1880, a patent for the land was issued by the United States to Mrs. Fearns.

The opinion of the court below reads as follows:

"This is an action of ejectment to recover the possession of S. half of S. E. qr. of section 21, T. 20, range 8 east, in Chase county, Kansas. One Patrick Ryan made an entry on certain lands in Chase county on January 13, in 1868, and intended to and supposed he had entered the land in controversy. He made improvements on the land in controversy, and it was not until another party filed upon the land on June 9, 1869, that Ryan discovered that he had not filed upon the land in question. He at once began proceedings to have his entry corrected before the land courts and succeeded in having such correction made so as to include the land. This amendment was allowed October 26, 1869. The line of plaintiff's railroad was definitely located through

Chase county, and along the line of lands to which the land in controversy was contiguous, on the thirtieth day of June, 1869. At this time the right of plaintiff to lands under its land grant attached to all lands forming a part of the public domain within the ten-mile limit. At this time Ryan had no entry on the land. It was still a part of the public domain. His intention to enter did not sever it from the public domain. On the thirtieth day of June, 1869, the plaintiff obtained a vested right in the land in controversy. The subsequent proceedings of the land-office in correcting the entry of Ryan could not divest the plaintiff of this right. We must, therefore, find for plaintiff; judgment will be rendered accordingly."

Now, was either Ryan's homestead claim or Manly's pre-emption claim valid and subsisting at the time of the railroad company's defi nite location of its railroad? If either was valid we would suppose that the railroad company obtained no rights by virtue of the aforesaid land grants or the definite location of its road. Atchison, T. & S. F. R. Co. v. Pracht, 30 Kan. 66, S. C. 1 PAC. REP. 319, and cases there cited. And that one or the other was valid, and we think Ryan's, must follow from the facts proved and agreed upon; and this, without reference to the decision of the secretary of the interior. And even if, as a matter of law, the decision had been made the other way, we suppose that it is well settled that the findings of fact made by landofficers in a contested case before them must afterwards, when relief is sought in the courts, be considered as final and conclusive. Tatro v. French, 33 Kan. S. C. 5 PAC. REP. 426, 429, and cases there

cited. But when the land-officers misconceive or misconstrue the law arising upon the facts of the case, their decision with respect to the law will not be considered as final or conclusive, and the courts may afterwards grant any proper relief, (see authorities above cited; also Quinby v. Conlan, 104 U. S. 420;) and the decision of the landofficers in an ex parte proceeding will not in any case be considered as final or conclusive against the parties who were not before them. We think that Ryan, by settling upon said land and making lasting and valuable improvements thereon, and by attempting in good faith to make a homestead entry thereon, and believing that he had done so, obtained such an interest in equity in and to the land that the subsequent definite location by the railroad company of their road could not divest him of his interest in the land. It was such an equitable interest in the land that he had a right to have his entry thereof amended so as to make it appear to be just what it was intended and believed to be when he made his original entry. The decisions of courts of equity permitting instruments in writing to be reformed so as to make them just what the parties intended that they should be, but which, through some mistake of the parties, they were not, furnishes great support to this proposition. There ought to be power somewhere to correct mistakes of this kind; and the proper place for such power to be vested is undoubtedly, in the first instance, in the land-officers, but finally in the courts. In the present case, the correction was permitted to be made by the local land-officers, and